Character Evidence Flowchart

    1. Is a person’s character or character trait an essential element of a charge, claim or defense (FRE 405)? Yes admissible, and may be proved by relevant specific circumstances of the persons conduct FRE 405(b) No Does the evidence consist of the habit of a person? FRE 406 o Yes admissible o No go to 2     2. Assuming that this is a criminal case, is the item evidence of a pertinent trait of the character of the accused, offered either (1) by the accused, or (2) by the prosecution to rebut the same (i.e. to rebut (1)) [FRE 404(a)(2)(A)] Yes admissible, but only through reputation or opinion testimony; specific acts may only be inquired into on cross-exam [FRE 405(a)] No Is the item evidence of a pertinent trait of the character of the accused, offered by the prosecution? o Yes admissible if (1) the accused previously successfully offered evidence of a trait of the victim under 404(a)(2)(B), AND (2) the prosecution is now offering evidence of the same trait of character, but pertaining to the accused. [FRE 404(a)(2)(B)(ii)). Otherwise, inadmissible. o No go to 3  about:blank             3. Is the item evidence of a pertinent trait of the character of the alleged victim offered (1) by the D or (2) by the prosecution to rebut the D’s evidence concerning the victims character [FRE 404(a)(2)] No go to 4 Yes does the criminal or civil matter involve an alleged sex offense by the D? o No admissible in criminal cases. o Yes Does the evidence consist of specific instances of sexual behavior by the victim? No Reputation and opinion evidence regarding the sexual behavior of the victim is not admissible except in civil cases when the alleged victim placed his or her reputation in controversy (FRE 412) Yes In offering the evidence, has the D complied with the procedural requirements of the Rule? [FRE 412(c)] No inadmissible Yes Is it the case that the evidence is offered to show either: (1) the victim’s past sexual relations with others (not D), on the issue of whether the D was the source of semen or injury [FRE 412(b)(1)(A), OR (2) the victim’s past sexual relations with the D, to show the victims consent [FRE 412(b)(1)(B)] o No is this a criminal case? No admissible 1/3     o Yes      Yes Does the constitution require that the evidence be admitted? [FRE 412(b)(1) (C)] Yes admissible No inadmissible is this a criminal case? Yes admissible No In civil cases the evidence is admissible if the PV substantially outweighs the danger of harm to any victim and unfair prejudice to any party [FRE 412(b)(2)]                   4. Is the item evidence of other crimes, wrongs or acts, offered to prove the character of a person in order to show accordance therewith? [FRE 404(b)] Yes inadmissible for this purpose. Go to 5. No Is the item evidence of specific acts to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident? [FRE 404(b)]? o Yes Admissible, if a reasonable jury could find the existence of the extrinsic offense [FRE 104(b)] and its PV is not substantially outweighed by unfair prejudice [FRE 403] o No is the item evidence of similar crimes, wrongs, or acts offered in a case involving sexual assault or child molestation? No inadmissible Yes Is the evidence offered against the accused in a criminal prosecution? Yes Was the prior similar offense a “sexual assault” as defined by FRE 413(d)(1)-(5) or 414(d)(1)-(6)? o Yes admissible o No inadmissible No Since this is a civil case, has the party offering the prior similar act complied with the procedural requirements of the rule? [FRE 415(b)] o Yes Was the prior similar offense a “sexual assault” as defined by FRE 413(d)(1)-(5) or 414(d) (1)-(6)? Yes admissible No inadmissible o No inadmissible  5. Does the evidence relate to measures taken that, if taken previously, would have made the relevant injury or harm less likely to occur? [FRE 407] No go to 6????? about:blank 2/3        Yes is this “subsequent remedial measures” evidence offered to prove any of the following: negligence, culpable conduct, a defect in a product or design, or a need for warning or instruction? [FRE 407]. o Yes inadmissible o No Is the evidence being offered for another purpose such as impeachment or – if disputed—proving ownership, control, or the feasibility of precautionary measures? [FRE 407] Yes Admissible [FRE 407, last sentence] No go to 6???? 6. Continue with flowchart titled “Figure 8 Character and Impeachment” o