Is it "evidence of a person's character or character trait?"
First, you must decide whether the evidence at issue directly addresses a person's personality or behavior.
Example of evidence directly addressing character-"He is a violent person" or "he acted violently" on an occasion prior to the incident in question.
If answer to question 1 is yes, move to Step 2. If no, objection should be overruled.
Is the evidence of character trait being offered to show action in conformity with character, i.e. a character purpose?
If step 1 is satisfied, you must then determine whether the character trait evidence is being offered to show that the person acted, on the day in question, in accordance with their character.
Example of evidence offered to show action in conformity with character-Evidence that someone is a drunk, or drank on a prior occasion, offered to prove that that same person drank on the day in question.
Evidence that qualifies under step 1 may not necessarily meet step 2. The evidence of a person's trait of character may be offered for non-character purposes, that is to say, that it may be offered to show something other than action in conformity with character. That other purpose must be relevant to case at hand. Some examples of these purposes are: motive, plan, preparation, intent, accident, absence of mistake, opportunity, knowledge, identity.
If the answer to Questions 1 and 2 is yes, move on. If not, objection should be overruled.
STEP 3-Does it meet one of the three character exceptions?
The three exceptions are: the character of the accused, the character of the victim, and the character of the witness (including the accused if he testifies).
The first two exceptions, character of the accused and of the victim, are analyzed almost identically. The character trait must be "pertinent." Pertinent does not mean relevant and it is extremely broad.
Additionally, both the character of the accused (defendant) and the character of the victim must be first raised by the defense. Once the defense has opened the door, then the prosecution can rebut that same trait of character with contrary evidence. If the character trait evidence is first raised by the prosecution, it is improper and objectionable.
The third exception to the rule is evidence of the character of any witness. This exception only permits evidence on the witness' character for truthfulness or untruthfulness. Any other character trait of a witness is inadmissible. Untruthfulness must be raised first.
Is the character evidence being offered by a proper method?
If the evidence meets a step 3 exception, it still must be offered by a proper method. There are three methods of offering character evidence: 1. opinion; 2. reputation; 3. specific instances of conduct.
Opinion and reputation are always proper methods of offering character evidence, whether on direct or cross, regardless of whether it pertains to the accused, victim or a witness.
Also note that "reputation in the community" is an exception to hearsay (see rule 803(7))
Specific instances of conduct (i.e. specific acts or instances of behavior) may only be brought out on cross-examination. (note: this rule may not apply in all state courts). If this witness denies it, usually you cannot offer extrinsic (outside) evidence the prove the prior conduct.
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