Texas Rules
Federal- ARTICLE IV. RELEVANCE AND ITS LIMITS
Objection
Response
Cross-Reference to Texas Rule 404(a)(2)
Explanation
In criminal cases, this exception to the propensity rule applies to all types of prosecutions, except those that would be covered by Rule 412 (sexual assault, aggravated sexual assault, attempt to commit sexual assault, or aggravated sexual assault). Most commonly, however, it is invoked when the defendant is charged with assaultive conduct and the defendant alleges self-defense (see, e.g., Torres v. State, 117 S.W.3d 891 (Tex. Crim. App. 2003)). In civil cases, Rule 404(a)(2) permits a party accused of assaultive conduct, usually the defendant, to offer evidence, by way of opinion or reputation, regarding the victim’s violent character.
Rebuttal Evidence
When the defendant puts in issue the character of the victim, the prosecution—or the plaintiff in a civil case—may rebut with contrary evidence of the victim’s character (Reyna v. State, 99 S.W.3d 344 (Tex. App.—Fort Worth 2003)). Rebuttal evidence must concern the victim’s character and not the defendant’s. Evidence of the defendant’s character for violence used to rebut the inference that the victim was the first aggressor would be inadmissible under Rule 404(a).
Objection
Responses
Cross-Reference to Texas Rule 404(a)(1)
Explanation
Criminal Cases
Rule 404(a)(1)(A) allows a defendant in any criminal case to offer character evidence, by reputation or opinion, to show his own good character, but only regarding a character trait pertinent to the case. Thus, the defendant is allowed to show that based on past behavior, he would not have been likely to commit the crime. For example, a defendant accused of driving under the influence might use his reputation as a teetotaler to demonstrate he would not have been drinking and driving. The state is permitted to rebut with character evidence that suggests that the defendant’s past actions show he was likely to have committed the crime.
Civil Cases
Rule 404(a)(1)(B) allows a party charged with conduct involving moral turpitude to oppose the charge with character evidence, by reputation or opinion witnesses, of the pertinent character trait to show his propensity to not engage in the conduct alleged.
Methods of Proof
A party’s offer of character evidence under Rule 404(a)(1) is often called “putting character in issue.” This is misleading because it might lead a party to believe it is proper under Rule 405(b) to offer character evidence by way of specific instances of conduct. This is not permitted. Only opinion or reputation testimony is admissible under Rule 404(a)(1). Rebuttal testimony offered by the opposing party to show a propensity to commit the charged conduct is also limited to opinion or reputation testimony.
Thus, a defendant accused of fraud might call a witness to establish the defendant’s reputation or offer an opinion as to the defendant’s honesty. The witness could not testify to specific dealings he had with the defendant in which the defendant acted honestly, but could testify on his opinion of the defendant’s character for honesty or his reputation for honesty in the community. The plaintiff could then call witnesses to establish a reputation for sharp business practices or to offer the opinion that the defendant was not honest.
Objection
Response
motive, in that (specifically explaining how motive is shown); or
opportunity, in that (specifically explaining how opportunity is shown); or
intent, in that (specifically explaining how intent is shown); or
preparation, in that (specifically explaining how preparation is shown); or
plan, in that (specifically explaining how plan is shown); or
knowledge, in that (specifically explaining how knowledge is shown); or
identity, in that (specifically explaining how identity is shown); or
absence of mistake, in that (specifically explaining how absence of mistake is shown); or
absence of accident, in that (specifically explaining how absence of accident is shown); or
same transaction contextual evidence; or
dangerousness of the instrumentality (or premises), in that (specifically explaining how dangerousness is shown).
Cross-Reference to Texas Rules 404 and 412, and Art. 38.37, Tex. Code Crim. Proc.
Explanation
Rule 404(b) is not an exception to the general rule forbidding the use of character evidence to show propensity. Rather, Rule 404(b) merely makes explicit what should be self-evident: evidence not offered to prove propensity is not excluded by the propensity rule. Rule 404(b) illustrates other purposes for such evidence that would not run afoul of the propensity rule. Admissibility of evidence offered to prove one of these other purposes is actually determined under the ordinary relevance rules—Rules 401, 402, and 403 (see, e.g., Huddleston v. United States, 485 U.S. 681, 682 (1988) (motive, opportunity, knowledge); Porter v. State, 623 S.W.2d 374, 376 (Tex. Crim. App. 1981) (motive, intent); Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996) (identity); Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) (absence of mistake); Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (same transaction, res gestae)).
Notice in Criminal Cases
The requirement of notice of intent to use such evidence applies only in criminal cases—and only if the defendant timely requests notice before trial. If the defendant properly requests notice and the state desires to offer evidence under Rule 404(b) in its case-in-chief, then the state must provide notice and the evidence to defendant. A prosecutor’s open-file policy does not satisfy the notice requirement. The state need not give notice of rebuttal evidence or same transaction contextual evidence.
Character of the Accused in Sexual Assault Cases
Rule 412 is the Texas version of the rape shield law for victims of sexual assault. Under this rule, evidence of the victim’s prior sexual conduct or misconduct is not admissible, other than under the express exceptions of art. 38.37.
Character of the Accused in Sexual Assault Cases
Article 38.37 of the Code of Criminal Procedure makes admissible prior crimes, wrongs, or acts committed by a defendant on a child under seventeen, where the crime involves the same child and the new crime is a sexual offense or an assault type offense. The purpose is to allow the evidence to show the state of mind of the defendant or the prior relationship of the defendant and child.
Objection
Response
Cross-Reference to Texas Rules 404 and 405
Explanation
Propensity Rule
Rule 404 states the general rule that evidence of a person’s character is not admissible as proof that such person, whether or not a party, has acted in conformity therewith. Character evidence is generally inadmissible to prove propensity. For example, in a motor vehicle accident case arising where the plaintiff claims that the defendant was speeding and thus negligent, evidence that the defendant is generally a negligent driver or generally speeds is not admissible to prove that he was negligent on the occasion in question. Similarly, evidence that the defendant is a careful driver is inadmissible to show the exercise of care on the occasion in question.
Opinion and Reputation Testimony
Rule 405 provides that character evidence may be proved, where relevant, by way of reputation or opinion evidence—and in more limited circumstances, by specific instances of conduct. A character witness will be allowed to testify about reputation or opinion regarding the pertinent character trait only after an appropriate predicate is laid. With respect to reputation evidence, the character witness must testify that he has heard talk among members of the community regarding the person’s character trait. When character evidence if offered by way of opinion, the character witness must offer evidence that he knows the person whose character trait is in issue and is familiar with that person’s particular character trait.
“Have You Heard” Questions
A character witness who testifies about reputation or opinion may be cross-examined concerning specific instances of conduct by the person about whom character evidence has been given, as long as the conduct is inconsistent with the testimony of the character witness. Cross-examination utilizing specific instances of conduct to impeach the witness testifying about character; it may not, however, be used to attack the character of the witness whose character is in issue. This type of cross-examination of the character witness derives from the theory that either the character witness has incomplete information on which to base the reputation opinion or the character witness has an inappropriate notion of what constitutes good character.
PART C. Impeachment of Witnesses
Modernly, most jurisdictions permit the opponent to impeach the witness with proof that the witness has committed untruthful acts. The opponent may do so even if the acts have not resulted in the witness’s conviction. Federal Rule of Evidence 608(b)(1) states the prevailing view: “Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for … untruthfulness of … the witness.” The theory of logical relevance is simple: If the witness has been willing to commit untruthful and deceitful acts in the past, the witness may be willing to lie on the witness stand. Of course, the doctrine is limited to acts which reflect adversely on the witness’s truthfulness. (Some courts tend to restrict the scope of Rule 608(b)(1) to the kinds of acts that qualify under Rule 609(a)(2) governing conviction impeachment. § 5.10 of this chapter discusses conviction impeachment.)
As the Federal Rule indicates, the opponent is ordinarily restricted to cross-examination. On cross-examination, the opponent may inquire whether the witness committed the act. However, the opponent must “accept” or “take” the answer. It is true that the opponent can press the witness for a truthful answer, for example, by reminding the witness of the penalties for perjury. However, the opponent must take the answer in the sense that the opponent cannot use extrinsic evidence to contradict the answer. Thus, if witness #1, the witness to be impeached, denies committing the deceitful act, the opponent cannot call witness #2 to testify that he or she was an eyewitness to witness #1’s act. The Advisory Committee Note to the 2003 amendments to Rule 608 states that “the extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act. For example, Rule 608(b) prohibits counsel from mentioning that a witness was suspended or disciplined for the conduct that is the subject of impeachment. ‘[C]ounsel should not be permitted to circumvent the no-extrinsic-evidence provision by tucking a third person’s opinion about prior acts into a question asked of the witness who has denied the act.’ ” Despite this passage in the Note, some courts permit the cross-examiner to refer to judicial or jury findings rejecting the credibility of the witness’s testimony in prior proceedings; these courts regard such findings as especially trustworthy and probative. However, in most cases counsel should ask the witness directly and bluntly whether the witness committed the act.
This restriction is a remnant of the broader, common-law collateral fact rule. The collateral fact rule announced that the impeaching attorney is limited to intrinsic impeachment when the impeaching fact relates only to the witness’s credibility. An untruthful act may reflect adversely on the witness’s credibility; but the argument runs that when the act has no relevance to the merits of the case, it would be an undue expenditure of time to allow the impeaching attorney to present extrinsic evidence. By banning the use of “extrinsic evidence,” the first sentence of Rule 608(b) codifies this aspect of the collateral fact rule.
The opponent must show:
To impeach the witness, the opponent may prove that the witness has a character trait of untruthfulness. The opponent uses the proof of the character trait as circumstantial proof of conduct. The opponent reasons that if the witness has that character trait, the character trait increases the probability that the witness is lying—acting “in character” in conformity with the character trait.
Unlike the last impeachment technique, the technique is not limited to the cross-examination of the witness to be impeached. Quite to the contrary, the opponent usually resorts to extrinsic evidence. To impeach witness #1, the opponent calls witness #2 who testifies that witness #1 has a character trait of untruthfulness. The courts usually term witness #2 a character witness. In some jurisdictions, the character witness must restrict his or her testimony to reputation evidence; the character witness describes the witness’s reputation for untruthfulness in the community. The majority view, however, is that opinion evidence is also admissible; the character witness may express his or her opinion of witness #1’s truthfulness. Federal Rule of Evidence 405(a) commits the federal courts to the latter view.
The foundation varies, depending upon whether the evidence is reputation or opinion. The reputation foundation includes these elements:
Some jurisdictions permit witness #2 to add that given witness #1’s reputation, witness #2 would not believe him or her under oath.
The opinion foundation includes the following elements:
Like proof of the character trait of untruthfulness, this impeachment technique requires extrinsic evidence. The opponent calls a polygraph examiner, witness #2, to impeach witness #1. Many people believe that when used by an experienced, competent examiner, the polygraph can be an effective tool for detecting deception. The examiner’s diagnosis of deception is logically relevant to show that when the witness gave a certain answer, the witness was lying.
The prevailing view today is still that polygraph evidence is inadmissible. However, in a minority of jurisdictions, the courts have gained a degree of faith in polygraphy. In these jurisdictions, polygraph evidence is admissible, at least when the parties stipulate to the admissibility of the evidence.
Even in the jurisdictions permitting polygraph evidence without a stipulation, the proponent must lay a good foundation. The traditional view is that scientific evidence is admissible only if the underlying principle and the instrument are generally accepted in the relevant scientific circles. The general acceptance requirement originated in the famous Frye case. The very first reported “polygraph” (systolic blood pressure) case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), held that the proponent of scientific evidence must not only present expert testimony vouching for the principle and instrument; the proponent must also show that as a matter of historical fact, the principle and instrument have gained general acceptance in the pertinent scientific circles. § 4.10 discusses the Frye test. As § 4.10 points out, in 1993 the United States Supreme Court overturned Frye. In Daubert, the Court substituted a validation test, derived from Rule 702, for the old general acceptance standard. Some courts have ruled that under Daubert, there is no longer a rigid rule barring the admission of polygraph testimony; rather, the question is whether the proponent can lay a foundation satisfying the validation test. James R. McCall, Misconceptions and Reevaluation—Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363. Even under the new validation test, though, most lower federal trial courts continue to exclude polygraph evidence; and most appellate courts uphold such trial court rulings.
In United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998), the Supreme Court upheld the constitutionality of a military rule of evidence barring polygraph evidence. However, the Court did not rule that the Constitution forbids the receipt of polygraph evidence. The lead opinion holds only that polygraph is not so demonstrably reliable that a criminal defendant has a constitutional right to override common-law or statutory rules restricting its admissibility. Moreover, it is important to note the division of sentiment among the justices in Scheffer. Only four justices signed the lead opinion sustaining the constitutionality of the per se rule on its face. Other justices dissented and would have invalidated the rule. Still other justices concurred but stated that it was conceivable that in a future case—perhaps one in which the proponent had laid a better foundation—they would vote to strike down an application of the rule. The upshot is that a majority of justices indicated that at the very least, they would entertain the argument that in a given case polygraph evidence was so reliable and critical that it would be unconstitutional to exclude the evidence. As a practical matter, Scheffer makes it more difficult to persuade a trial judge to admit testimony based on polygraphy. In 2002, the National Research Council released a report critical of polygraph. National Research Council, The Polygraph and Lie Detection (2002). The release of that report makes the introduction of polygraph evidence even more of an uphill battle.
PART D. Rehabilitation of Witnesses After Impeachment
After the opponent attempts to impeach the witness’s credibility, the witness’s proponent may attempt to repair the damage. These attempts are called rehabilitation. One of the most common rehabilitation techniques is proof of a prior consistent statement. The proponent shows that the witness testified to the fact at the time of trial and that the witness made a pretrial statement to the same effect. Just as inconsistency has an impeaching effect, consistency has a rehabilitating effect.
However, the courts do not want trials to be bogged down with proof of all of the witness’s pretrial statements. The courts fear that rehabilitation evidence can lead the jury far afield. To begin with, the testimony relates to credibility, not the historical merits; and to make matters worse, this evidence relates to a third stage in credibility analysis after bolstering and impeachment. For that reason, most jurisdictions impose timing requirements on prior consistent statements. For example, assume that the opponent impeached the witness with a prior inconsistent statement. Many jurisdictions follow the temporal priority doctrine and take the position that the proponent may rehabilitate with a prior consistent statement only if the consistent statement preceded the allegedly inconsistent statement. Or assume that the opponent charged that the witness recently fabricated his or her testimony. Many jurisdictions permit the proponent to rehabilitate by prior consistent statement only if the witness made the statement before he or she had any motive to lie. In Tome v. United States, 513 U.S. 150, 115 S. Ct. 696, 130 L. Ed. 2d 574 (1995), the Supreme Court held that Rule 801(d)(1)(B) codifies the common-law temporal priority requirement. Thus, at least when he or she wants to introduce the prior consistent statement as substantive evidence, the proponent must show that the statement satisfies the timing requirement. Admittedly, Rule 801(d)(1)(B) and Tome purports to govern only when the proponent offers the prior consistent statement for substantive purposes. Nevertheless, many jurisdictions believed that after Tome “the handwriting is on the wall”; they followed the temporal priority doctrine even when the proponent offered the statement on a credibility theory.
Originally, Rule 801(d)(1)(B) permitted the admission of prior consistent statements only in response to allegations of recent fabrication or improper motive. (B)(i) continues to authorize the receipt of testimony about the consistent statement in those situations. However, in 2014 (B) was amended to add the following language, “(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground … .” The 2013 Report of the Judicial Conference to the Chief Justice explained the expression, “another ground,” by giving the examples of “explain[ing] an inconsistency or … rebut[ting] a charge of bad memory.” It is true that Rule 801(d)(1)(B) deals only with the admission of the consistent statement as substantive evidence. However, the language recognizes that a consistent statement can be relevant on a credibility theory even absent an allegation of recent fabrication or improper motive.
The statement itself is an event. For that reason, the foundation includes the four normal foundational elements for proof of any event:
In addition, if the proponent must comply with a timing requirement, the proponent must show that:
Many of the impeachment techniques available to the opponent are express or implied attacks on the witness’s character. The Advisory Committee Note to Rule 608(a) states: “Opinion or reputation that the witness is untruthful specifically qualifies as an attack, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not. Whether evidence in the form of a contradiction is an attack upon the character of the witness must depend upon the circumstances.” Thus, if the opponent calls a character witness to testify to witness #1’s character trait of untruthfulness, the testimony is an express attack. If the opponent proves specific bad acts or convictions, there is an implied attack on the witness’s character. Even bias impeachment sometimes involves an attack on the witness’s credibility; for instance, the proof of bias may be evidence of a corrupt financial motive. In all these cases, the judge will permit the proponent to rehabilitate by proving a character trait of truthfulness. The sequence would be the following. The proponent, perhaps the plaintiff, calls witness #1 to testify about the historical merits of the case. The opponent then calls witness #2, a character witness; witness #2 testifies that witness #1 has a reputation for untruthfulness. To rehabilitate witness #1, the proponent calls witness #3, another character witness. Witness #3 contradicts witness #2; witness #3 testifies that witness #1 has a good reputation for truthfulness.
In general, the rules governing the opponent’s character evidence also apply to the proponent’s character evidence. § 5.06 outlines those rules. There is only one additional rule the proponent should bear in mind: The trial judge is likely to limit the proponent’s character evidence to the same type, time, and community as the opponent’s evidence. If the opponent used reputation evidence, the judge may not permit the proponent to use opinion evidence. The judge may limit the proponent’s character evidence to roughly the same time period and community as the opponent’s evidence. If the opponent presented character evidence about the witness’s reputation in Detroit within the past five years, the judge might exclude the proponent’s character evidence relating to the witness’s reputation in Las Vegas 10 years before. The courts do not want trials to bog down in collateral disputes over witnesses’ credibility. After all, the third stage of credibility analysis—rehabilitation—is rather far removed from the historical merits. The proponent should respond directly in kind to the opponent’s attacks on the witness’s credibility.
The foundational elements are the same as in § 5.06.
Evidentiary foundations
In criminal cases, this exception to the propensity rule applies to all types of prosecutions, except those that would be covered by Rule 412 (sexual assault, aggravated sexual assault, attempt to commit sexual assault, or aggravated sexual assault). Most commonly, however, it is invoked when the defendant is charged with assaultive conduct and the defendant alleges self-defense (see, e.g., Torres v. State, 117 S.W.3d 891 (Tex. Crim. App. 2003)). In civil cases, Rule 404(a)(2) permits a party accused of assaultive conduct, usually the defendant, to offer evidence, by way of opinion or reputation, regarding the victim’s violent character.
When the defendant puts in issue the character of the victim, the prosecution—or the plaintiff in a civil case—may rebut with contrary evidence of the victim’s character (Reyna v. State, 99 S.W.3d 344 (Tex. App.—Fort Worth 2003)). Rebuttal evidence must concern the victim’s character and not the defendant’s. Evidence of the defendant’s character for violence used to rebut the inference that the victim was the first aggressor would be inadmissible under Rule 404(a).
Character Evidence Character of the Accused Party
Rule 404(a)(1)(A) allows a defendant in any criminal case to offer character evidence, by reputation or opinion, to show his own good character, but only regarding a character trait pertinent to the case. Thus, the defendant is allowed to show that based on past behavior, he would not have been likely to commit the crime. For example, a defendant accused of driving under the influence might use his reputation as a teetotaler to demonstrate he would not have been drinking and driving. The state is permitted to rebut with character evidence that suggests that the defendant’s past actions show he was likely to have committed the crime.
Rule 404(a)(1)(B) allows a party charged with conduct involving moral turpitude to oppose the charge with character evidence, by reputation or opinion witnesses, of the pertinent character trait to show his propensity to not engage in the conduct alleged.
A party’s offer of character evidence under Rule 404(a)(1) is often called “putting character in issue.” This is misleading because it might lead a party to believe it is proper under Rule 405(b) to offer character evidence by way of specific instances of conduct. This is not permitted. Only opinion or reputation testimony is admissible under Rule 404(a)(1). Rebuttal testimony offered by the opposing party to show a propensity to commit the charged conduct is also limited to opinion or reputation testimony.
Thus, a defendant accused of fraud might call a witness to establish the defendant’s reputation or offer an opinion as to the defendant’s honesty. The witness could not testify to specific dealings he had with the defendant in which the defendant acted honestly, but could testify on his opinion of the defendant’s character for honesty or his reputation for honesty in the community. The plaintiff could then call witnesses to establish a reputation for sharp business practices or to offer the opinion that the defendant was not honest.
motive, in that (specifically explaining how motive is shown); or
opportunity, in that (specifically explaining how opportunity is shown); or
intent, in that (specifically explaining how intent is shown); or
preparation, in that (specifically explaining how preparation is shown); or
plan, in that (specifically explaining how plan is shown); or
knowledge, in that (specifically explaining how knowledge is shown); or
identity, in that (specifically explaining how identity is shown); or
absence of mistake, in that (specifically explaining how absence of mistake is shown); or
absence of accident, in that (specifically explaining how absence of accident is shown); or
same transaction contextual evidence; or
dangerousness of the instrumentality (or premises), in that (specifically explaining how dangerousness is shown).
Rule 404(b) is not an exception to the general rule forbidding the use of character evidence to show propensity. Rather, Rule 404(b) merely makes explicit what should be self-evident: evidence not offered to prove propensity is not excluded by the propensity rule. Rule 404(b) illustrates other purposes for such evidence that would not run afoul of the propensity rule. Admissibility of evidence offered to prove one of these other purposes is actually determined under the ordinary relevance rules—Rules 401, 402, and 403 (see, e.g., Huddleston v. United States, 485 U.S. 681, 682 (1988) (motive, opportunity, knowledge); Porter v. State, 623 S.W.2d 374, 376 (Tex. Crim. App. 1981) (motive, intent); Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996) (identity); Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) (absence of mistake); Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (same transaction, res gestae)).
The requirement of notice of intent to use such evidence applies only in criminal cases—and only if the defendant timely requests notice before trial. If the defendant properly requests notice and the state desires to offer evidence under Rule 404(b) in its case-in-chief, then the state must provide notice and the evidence to defendant. A prosecutor’s open-file policy does not satisfy the notice requirement. The state need not give notice of rebuttal evidence or same transaction contextual evidence.
Rule 412 is the Texas version of the rape shield law for victims of sexual assault. Under this rule, evidence of the victim’s prior sexual conduct or misconduct is not admissible, other than under the express exceptions of art. 38.37.
Article 38.37 of the Code of Criminal Procedure makes admissible prior crimes, wrongs, or acts committed by a defendant on a child under seventeen, where the crime involves the same child and the new crime is a sexual offense or an assault type offense. The purpose is to allow the evidence to show the state of mind of the defendant or the prior relationship of the defendant and child.
Rule 404 states the general rule that evidence of a person’s character is not admissible as proof that such person, whether or not a party, has acted in conformity therewith. Character evidence is generally inadmissible to prove propensity. For example, in a motor vehicle accident case arising where the plaintiff claims that the defendant was speeding and thus negligent, evidence that the defendant is generally a negligent driver or generally speeds is not admissible to prove that he was negligent on the occasion in question. Similarly, evidence that the defendant is a careful driver is inadmissible to show the exercise of care on the occasion in question.
Rule 405 provides that character evidence may be proved, where relevant, by way of reputation or opinion evidence—and in more limited circumstances, by specific instances of conduct. A character witness will be allowed to testify about reputation or opinion regarding the pertinent character trait only after an appropriate predicate is laid. With respect to reputation evidence, the character witness must testify that he has heard talk among members of the community regarding the person’s character trait. When character evidence if offered by way of opinion, the character witness must offer evidence that he knows the person whose character trait is in issue and is familiar with that person’s particular character trait.
“Have You Heard” Questions
A character witness who testifies about reputation or opinion may be cross-examined concerning specific instances of conduct by the person about whom character evidence has been given, as long as the conduct is inconsistent with the testimony of the character witness. Cross-examination utilizing specific instances of conduct to impeach the witness testifying about character; it may not, however, be used to attack the character of the witness whose character is in issue. This type of cross-examination of the character witness derives from the theory that either the character witness has incomplete information on which to base the reputation opinion or the character witness has an inappropriate notion of what constitutes good character.
=======
The proponent may use habit evidence as well as character evidence as circumstantial proof of conduct. Federal Rule of Evidence 406 states the habit evidence doctrine: “Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit the evidence regardless of whether it is corroborated or whether there was an eyewitness.”
Although both character and habit evidence serve as circumstantial proof of conduct, there are major differences between the two theories of admissibility.
The first difference is that although character evidence is usually admissible only after the criminal accused opens the issue, under the modern view either party in a civil or criminal case may introduce habit evidence. It is true that some jurisdictions admit habit evidence only if there are no eyewitnesses to the conduct in question or only when there is corroboration of the conduct. However, Rule 406 embodies the emerging view that habit evidence is always admissible to prove the conduct of a person or business organization.
The second difference is that while character evidence permits the proponent to prove general character or character traits, habit evidence requires proof of a very specific, consistent, frequently repeated behavioral pattern. For instance, under the so-called probability theory of habit evidence, the proponent may prove the precise manner in which a decedent routinely executed right-hand turns or the specific mailing procedure a business customarily used. Some jurisdictions rely on a psychological theory of habit evidence and employ an even more restrictive definition of habit. In these jurisdictions, the courts limit the scope of habit to relatively automatic behavior such as the way a person ties his shoelaces. Some jurisdictions compromise by applying the automaticity requirement to evidence of habit but not to evidence of business routine.
Finally, the habit and character evidence theories differ in the method of proof. The proponent of character evidence ordinarily presents reputation or opinion evidence. In contrast, the proponent of habit evidence may not use reputation evidence. However, most jurisdictions sanction opinion character evidence, and opinion is the most common method of proving habit. To be qualified to express an opinion on the existence of a habit, the witness must have been familiar with the person or business for a substantial time and observed numerous instances of the person’s or business’ conduct. Opinion habit evidence is typically presented by a single witness who is familiar with a large number of instances of the conduct of the person or business in question. Other jurisdictions permit habit to be proven by the testimony of several witnesses. Each witness testifies to the instances of conduct he or she knows of; if the behavioral pattern is specific enough and the instances sufficiently numerous, the judge allows the jury to infer the existence of the habit. When the proponent opts for this method of proving the existence of a habit, each witness’s testimony must comply with the foundational requirements set out in § 6.02[4] of this chapter.
The foundation for opinion habit evidence includes these elements:
In some jurisdictions, in addition to establishing these elements of the foundation, the proponent must show that: