0618

(1) I would object to evidence that parents filed complaints because this is not Hickman’s conduct, but the parents’ conduct. Being accused of getting angry is not evidence that he actually was angry. The accusation could have been false, made by parents who didn’t like the fact that their future NBA stars had to sit on the bench and wanted the coach removed.  This distinction between a mere accusation and proof that he did the act is likely to be lost on the jury, so the remote probative value is outweighed by the danger of misleading the jury under Rule 403. I would not object under Rule 404.

(2) I would object that evidence he smashed an umpire’s windshield four years ago as not relevant to rebut testimony that he is a peaceful person today. He may have reformed. The judge will probably admit it anyway because it is a specific act inconsistent with the trait he placed in issue (peacefulness), so is presumptively admissible on cross-examination under Rule 405(a).

(3) I would not object to rebuttal evidence that Hickman has a reputation as bad-tempered. This is rebuttal-in-kind, permitted by Rule 404(a)(2)(a). If the defense offers evidence of peacefulness, the prosecution can rebut with proof of non-peacefulness. An argument can be made that rebuttal must be strictly in kind (if the defense offered opinion, the prosecution must offer opinion, and if the defense offered reputation the prosecution must offer reputation evidence), although the argument is weak because Rule 405(a) says that whenever character evidence is admissible, it may be proved by either opinion or reputation evidence.

(4) I would object to evidence of Hickman’s character for drinking because it is not rebuttal-in-kind -- a tendency to drink is not the opposite of peacefulness.

Questions? E-mail tanford@indiana.edu and refer to 0618.

Problem 6C looks at evidence of the character of the victim in criminal cases. Ignore the problem for a moment and assume:

1) In opening statement, the defense attorney says that his client acted in self-defense, having been attacked by Tate.
 
2) The prosecutor calls as her first witness, the manager of Rallys where Tate worked. The manager testifies that he has known and observed Tate as an employee for 2 years, and in his opinion, she was a peaceful, nonaggressive person who would never start a fight.

3) What objection could the defense make?

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