Evidence - MBE Question Forum

[lilkim12]

Hi all, quick question- not sure if i am understanding this right or my brain is just fried already but here is the question:

A defendant was charged with the murder of her husband. The defendant intends to claim that the death was an accident that occurred when she was cleaning her gun. At trial, the defense called a character witness who testified that the defendant had a reputation as a peaceful and nonviolent person. The defendant then took the stand to describe the accident that led to her husband’s death. During the defendant’s cross-examination, the prosecution asked the defendant whether she assaulted another man five years ago with a knife. Although the incident did occur, the defendant was not charged with any crime. The defense objected to the question.

How should the court rule?

Answers:

(A) Overrule the objection, because the defendant opened the door to this evidence by testifying.
(B) Overrule the objection, because the defense’s character witness testified as to the defendant’s peaceable and nonviolent nature.
(C) Sustain the objection, because the prosecution cannot introduce evidence of the defendant’s bad character.
(D) Sustain the objection, because the defendant cannot be asked about this specific instance of conduct on cross-examination.

Correct Answer - (D).

I get why this is the correct answer, but I have a related question-- I thought if a defendant takes the stand and testifies- they can be impeached as to their truthful/untruthfulness. So when the defendant takes the stand here- would it be proper to question the def on cross exam- about specific acts- that goes to their untruthfulness, as long as they dont introduce anything/ have a good faith belief? And arguably a past violent act can go to a defendants truthfulness as per the rationale of FRE 609?

thanks!

[estefanchanning]

Hi all, quick question- not sure if i am understanding this right or my brain is just fried already but here is the question:

A defendant was charged with the murder of her husband. The defendant intends to claim that the death was an accident that occurred when she was cleaning her gun. At trial, the defense called a character witness who testified that the defendant had a reputation as a peaceful and nonviolent person. The defendant then took the stand to describe the accident that led to her husband’s death. During the defendant’s cross-examination, the prosecution asked the defendant whether she assaulted another man five years ago with a knife. Although the incident did occur, the defendant was not charged with any crime. The defense objected to the question.

How should the court rule?

Answers:

(A) Overrule the objection, because the defendant opened the door to this evidence by testifying.
(B) Overrule the objection, because the defense’s character witness testified as to the defendant’s peaceable and nonviolent nature.
(C) Sustain the objection, because the prosecution cannot introduce evidence of the defendant’s bad character.
(D) Sustain the objection, because the defendant cannot be asked about this specific instance of conduct on cross-examination.

Correct Answer - (D).

I get why this is the correct answer, but I have a related question-- I thought if a defendant takes the stand and testifies- they can be impeached as to their truthful/untruthfulness. So when the defendant takes the stand here- would it be proper to question the def on cross exam- about specific acts- that goes to their untruthfulness, as long as they dont introduce anything/ have a good faith belief? And arguably a past violent act can go to a defendants truthfulness as per the rationale of FRE 609?

thanks!

The defendant was never charged. Therefore, the usual inference (that a criminal tends to lie) is unavailable because D is not a criminal since he was never charged. The only relevant use of this evidence would be to prove conformity therewith, which is not allowed. If the specific instance was regarding forgery, then sure.

[InterAlia1961]

Hi all, quick question- not sure if i am understanding this right or my brain is just fried already but here is the question:

A defendant was charged with the murder of her husband. The defendant intends to claim that the death was an accident that occurred when she was cleaning her gun. At trial, the defense called a character witness who testified that the defendant had a reputation as a peaceful and nonviolent person. The defendant then took the stand to describe the accident that led to her husband’s death. During the defendant’s cross-examination, the prosecution asked the defendant whether she assaulted another man five years ago with a knife. Although the incident did occur, the defendant was not charged with any crime. The defense objected to the question.

How should the court rule?

Answers:

(A) Overrule the objection, because the defendant opened the door to this evidence by testifying.
(B) Overrule the objection, because the defense’s character witness testified as to the defendant’s peaceable and nonviolent nature.
(C) Sustain the objection, because the prosecution cannot introduce evidence of the defendant’s bad character.
(D) Sustain the objection, because the defendant cannot be asked about this specific instance of conduct on cross-examination.

Correct Answer - (D).

I get why this is the correct answer, but I have a related question-- I thought if a defendant takes the stand and testifies- they can be impeached as to their truthful/untruthfulness. So when the defendant takes the stand here- would it be proper to question the def on cross exam- about specific acts- that goes to their untruthfulness, as long as they dont introduce anything/ have a good faith belief? And arguably a past violent act can go to a defendants truthfulness as per the rationale of FRE 609?

thanks!

Here, the D could've been asked if she had any other gun-cleaning accident. However, because the D offered evidence of her peaceful nature, the prosecution can offer up R & O to impeach her. But they can't say that the D attacked them five years ago, unless there's a conviction. And then, the conviction could be used to impeach her testimony as to her peacefulness

[lilkim12]

Hi all, quick question- not sure if i am understanding this right or my brain is just fried already but here is the question:

A defendant was charged with the murder of her husband. The defendant intends to claim that the death was an accident that occurred when she was cleaning her gun. At trial, the defense called a character witness who testified that the defendant had a reputation as a peaceful and nonviolent person. The defendant then took the stand to describe the accident that led to her husband’s death. During the defendant’s cross-examination, the prosecution asked the defendant whether she assaulted another man five years ago with a knife. Although the incident did occur, the defendant was not charged with any crime. The defense objected to the question.

How should the court rule?

Answers:

(A) Overrule the objection, because the defendant opened the door to this evidence by testifying.
(B) Overrule the objection, because the defense’s character witness testified as to the defendant’s peaceable and nonviolent nature.
(C) Sustain the objection, because the prosecution cannot introduce evidence of the defendant’s bad character.
(D) Sustain the objection, because the defendant cannot be asked about this specific instance of conduct on cross-examination.

Correct Answer - (D).

I get why this is the correct answer, but I have a related question-- I thought if a defendant takes the stand and testifies- they can be impeached as to their truthful/untruthfulness. So when the defendant takes the stand here- would it be proper to question the def on cross exam- about specific acts- that goes to their untruthfulness, as long as they dont introduce anything/ have a good faith belief? And arguably a past violent act can go to a defendants truthfulness as per the rationale of FRE 609?

thanks!

The defendant was never charged. Therefore, the usual inference (that a criminal tends to lie) is unavailable because D is not a criminal since he was never charged. The only relevant use of this evidence would be to prove conformity therewith, which is not allowed. If the specific instance was regarding forgery, then sure.

Ooo I see, so if the past instance was concerning forgery- even if not charged- that is okay to ask about on cross exam? Subject to possibly 403?

[estefanchanning]

Hi all, quick question- not sure if i am understanding this right or my brain is just fried already but here is the question:

A defendant was charged with the murder of her husband. The defendant intends to claim that the death was an accident that occurred when she was cleaning her gun. At trial, the defense called a character witness who testified that the defendant had a reputation as a peaceful and nonviolent person. The defendant then took the stand to describe the accident that led to her husband’s death. During the defendant’s cross-examination, the prosecution asked the defendant whether she assaulted another man five years ago with a knife. Although the incident did occur, the defendant was not charged with any crime. The defense objected to the question.

How should the court rule?

Answers:

(A) Overrule the objection, because the defendant opened the door to this evidence by testifying.
(B) Overrule the objection, because the defense’s character witness testified as to the defendant’s peaceable and nonviolent nature.
(C) Sustain the objection, because the prosecution cannot introduce evidence of the defendant’s bad character.
(D) Sustain the objection, because the defendant cannot be asked about this specific instance of conduct on cross-examination.

Correct Answer - (D).

I get why this is the correct answer, but I have a related question-- I thought if a defendant takes the stand and testifies- they can be impeached as to their truthful/untruthfulness. So when the defendant takes the stand here- would it be proper to question the def on cross exam- about specific acts- that goes to their untruthfulness, as long as they dont introduce anything/ have a good faith belief? And arguably a past violent act can go to a defendants truthfulness as per the rationale of FRE 609?

thanks!

The defendant was never charged. Therefore, the usual inference (that a criminal tends to lie) is unavailable because D is not a criminal since he was never charged. The only relevant use of this evidence would be to prove conformity therewith, which is not allowed. If the specific instance was regarding forgery, then sure.

Ooo I see, so if the past instance was concerning forgery- even if not charged- that is okay to ask about on cross exam? Subject to possibly 403?

Yup. And if forgery was actually convicted, then it must come in. The judge has no discretion to exclude (subject to rare exceptions that I doubt you'll see on the bar)

[Tanicius]

Answer seems pretty clearly incorrect. The door to defendant conduct was opened by the defendant testifying about her peaceful nature. A conviction is not needed to rebut that testimony under 404(a)(2)(A).

[estefanchanning]

Answer seems pretty clearly incorrect. The door to defendant conduct was opened by the defendant testifying about her peaceful nature. A conviction is not needed to rebut that testimony under 404(a)(2)(A).

Prosecution may only use opinion or reputation to rebut an opened door for the same trait; it's not a free for all.

You're mixing up character evidence and impeachment.

[Tanicius]

That's not true. The rebuttal may well require specific instances of conduct that attack the claim by the defendant that she is peaceful. This is particularly well established law in self defense cases, where the 404.a.2.A problem comes up the most. Rule 405(a) allows the cross examiner to delve into specific instances.

[estefanchanning]

That's not true. The rebuttal may well require specific instances of conduct that attack the claim by the defendant that she is peaceful. This is particularly well established law in self defense cases, where the 404.a.2.A problem comes up the most. Rule 405(a) allows the cross examiner to delve into specific instances.

No, you can't. Specific instances are only allowed if character is in issue or for non-propensity use. 404 is subject to 405, which explicitly prohibits using specific instances in response to opened doors.

[JustMe83]

I think the problem here is that they're asking the defendant about the incident rather than the witness. They would be able to ask the witness about specific acts of the defendant that would rebut their testimony re: the defendant's peaceful nature - "any misconduct, including prior arrests may be inquired about while cross examining a defendant's character witness". The inference being 'if the witness doesn't know about this incident of violent behavior, is their testimony regarding the defendant's reputation really credible/based on sufficient information?' Alternatively, the prosecution could bring in its own witness to testify to the defendant's bad reputation for peacefulness, but not about specific acts of the defendant.

Since the defendant is testifying, their character for truthfulness is at issue. But that can only be impeached with a conviction of a felony or misdemeanor involving dishonesty, or specific acts involving dishonesty, but NOT an arrest or specific incident not involving dishonesty.

[estefanchanning]

I think the problem here is that they're asking the defendant about the incident rather than the witness. They would be able to ask the witness about specific acts of the defendant that would rebut their testimony re: the defendant's peaceful nature - "any misconduct, including prior arrests may be inquired about while cross examining a defendant's character witness". The inference being 'if the witness doesn't know about this incident of violent behavior, is their testimony regarding the defendant's reputation really credible/based on sufficient information?' Alternatively, the prosecution could bring in its own witness to testify to the defendant's bad reputation for peacefulness, but not about specific acts of the defendant.

Since the defendant is testifying, their character for truthfulness is at issue. But that can only be impeached with a conviction of a felony or misdemeanor involving dishonesty, NOT an arrest or specific incident which did not result in a conviction.

Yes, but when you bring up SI to character witness, that would be to impeach them (i.e., they don't know the defendant well enough). This question is squarely a character evidence issue, not an impeachment issue.

Here, the defendant did not put his character for truthfulness at issue-- he put his character for violence at issue. Prosecution can rebut via opinion/reputation testimony for violence only. Alternatively, prosecution may IMPEACH the defendant in many ways and exceptions to character evidence, but in that case, the defendant needn't even open the door.

[JustMe83]

I think the problem here is that they're asking the defendant about the incident rather than the witness. They would be able to ask the witness about specific acts of the defendant that would rebut their testimony re: the defendant's peaceful nature - "any misconduct, including prior arrests may be inquired about while cross examining a defendant's character witness". The inference being 'if the witness doesn't know about this incident of violent behavior, is their testimony regarding the defendant's reputation really credible/based on sufficient information?' Alternatively, the prosecution could bring in its own witness to testify to the defendant's bad reputation for peacefulness, but not about specific acts of the defendant.

Since the defendant is testifying, their character for truthfulness is at issue. But that can only be impeached with a conviction of a felony or misdemeanor involving dishonesty, NOT an arrest or specific incident which did not result in a conviction.

Yes, but when you bring up SI to character witness, that would be to impeach them (i.e., they don't know the defendant well enough). This question is squarely a character evidence issue, not an impeachment issue.

Here, the defendant did not put his character for truthfulness at issue-- he put his character for violence at issue. Prosecution can rebut via opinion/reputation testimony for violence only. Alternatively, prosecution may IMPEACH the defendant in many ways and exceptions to character evidence, but in that case, the defendant needn't even open the door.

Right - my point being that this is neither a proper rebuttal to the character evidence the defendant introduced nor is it admissible as a means of impeaching a testifying defendant through a conviction or specific act involving dishonesty - the only ways this evidence could conceivably be allowable under these facts. Therefore, it is inadmissible character evidence. The only way you could bring up SI of violence by the defendant is while cross examining the defendant's character witness.

[AspiringAspirant]

I think the problem here is that they're asking the defendant about the incident rather than the witness. They would be able to ask the witness about specific acts of the defendant that would rebut their testimony re: the defendant's peaceful nature - "any misconduct, including prior arrests may be inquired about while cross examining a defendant's character witness". The inference being 'if the witness doesn't know about this incident of violent behavior, is their testimony regarding the defendant's reputation really credible/based on sufficient information?' Alternatively, the prosecution could bring in its own witness to testify to the defendant's bad reputation for peacefulness, but not about specific acts of the defendant.

Since the defendant is testifying, their character for truthfulness is at issue. But that can only be impeached with a conviction of a felony or misdemeanor involving dishonesty, NOT an arrest or specific incident which did not result in a conviction.

Yes, but when you bring up SI to character witness, that would be to impeach them (i.e., they don't know the defendant well enough). This question is squarely a character evidence issue, not an impeachment issue.

Here, the defendant did not put his character for truthfulness at issue-- he put his character for violence at issue. Prosecution can rebut via opinion/reputation testimony for violence only. Alternatively, prosecution may IMPEACH the defendant in many ways and exceptions to character evidence, but in that case, the defendant needn't even open the door.

EDIT: Actually, you're right. At first I thought this was an impeachment issue. But it's definitely a character evidence issue.

[Tanicius]

No, you can't. Specific instances are only allowed if character is in issue or for non-propensity use. 404 is subject to 405, which explicitly prohibits using specific instances in response to opened doors.

This is incorrect. You're thinking of 405(b), which speaks about specific instances of conduct that goes to an essential issue in the case.

I'm talking about 405(a), which says that normally it is improper to use specific instances of conduct, but that a cross-examiner may bring up specific instances in order to rebut reputation evidence offered on direct.

This happens routinely in cases where defendants argue that their conduct was an accident or in self-defense. It opens the door under 404(a)(2)(A) and 405(a) for the prosecutor to cross the defendant on all the times they acted inconsistent with the character they brought up on direct exam.

[estefanchanning]

No, you can't. Specific instances are only allowed if character is in issue or for non-propensity use. 404 is subject to 405, which explicitly prohibits using specific instances in response to opened doors.

This is incorrect. You're thinking of 405(b), which speaks about specific instances of conduct that goes to an essential issue in the case.

I'm talking about 405(a), which says that normally it is improper to use specific instances of conduct, but that a cross-examiner may bring up specific instances in order to rebut reputation evidence offered on direct.

This happens routinely in cases where defendants argue that their conduct was an accident or in self-defense. It opens the door under 404(a)(2)(A) and 405(a) for the prosecutor to cross the defendant on all the times they acted inconsistent with the character they brought up on direct exam.

Homie, 405 specifically says SI can only be used on "character witness." The defendant is not his own character witness. The policy behind this is to impeach the character witness by implying they don't know the defendant well enough, and whatever 'good' opinion they had of him is undermined by the fact that they didn't know of a specific instance.

But, whatever, I don't have time to argue this.

[Tanicius]

Homie, 405 specifically says SI can only be used on "character witness." The defendant is not his own character witness. The policy behind this is to impeach the character witness by implying they don't know the defendant well enough, and whatever 'good' opinion they had of him is undermined by the fact that they didn't know of a specific instance.

It's also the same policy that underlies crossing the defendant when they lie about how peaceful they are. It's a totally different type of confrontation than 609, where you're showing they aren't to be trusted generally because of past behavior that impugns their honest. In this situation, the defendant actually commits a lie while testifying on the stand, and the other party is allowed to use specific instances to reveal that lie. Otherwise defendants who don't have convictions for specific violent behavior would just get up on the stand in every case and talk about how they've never done anything violent.

[estefanchanning]

Homie, 405 specifically says SI can only be used on "character witness." The defendant is not his own character witness. The policy behind this is to impeach the character witness by implying they don't know the defendant well enough, and whatever 'good' opinion they had of him is undermined by the fact that they didn't know of a specific instance.

It's also the same policy that underlies crossing the defendant when they lie about how peaceful they are. It's a totally different type of confrontation than 609, where you're showing they aren't to be trusted generally because of past behavior that impugns their honest. In this situation, the defendant actually commits a lie while testifying on the stand, and the other party is allowed to use specific instances to reveal that lie. Otherwise defendants who don't have convictions for specific violent behavior would just get up on the stand in every case and talk about how they've never done anything violent.

1) The defendant did not lie while on the stand. He had a character witness testify.
2) Prosecution nevertheless can't use specific instances--may only use reputation or opinion.
3) The defendant can't just take the stand and talk about how they've never done anything bad. They, too, can only use reputation/opinion to establish their good character.
4) Where is Sean Silverman when you need him.

[Tanicius]

1) The defendant did not lie while on the stand. He had a character witness testify.

My head exploded. Fact pattern says the defendant testified about the accident and the prosecution sought to cross her about her peacefulness, but it was a different witness who testified to her peacefulness. Gotta love the MBE.