0620

The strongest objection is to item (3). I would say: "I object to evidence of specific instances of conduct under Rule 405. Even though the prosecution may be able to offer good character evidence to rebut our evidence that Natasha was a violent person, Rule 405 says it must be proved by reputation or opinion, not specific acts.”

The next best objection is to item (1). I would say: "I object to evidence of Tate’s reputation among drug dealers and addicts. Even though the prosecution may be able to offer good character evidence to rebut our evidence that Natasha was a violent person, and Rule 405 says it may be proved by reputation evidence, no foundation has been laid that a small group of druggies is the kind of community in which a person can develop a reputation for peacefulness or violence."

The weakest objection is to item (2). I would say: "I object to evidence of the witness's opinion that Tate is a peaceful person. Even though the prosecution may be able to offer good character evidence to rebut our evidence that Natasha was a violent person, and Rule 405 says it may be proved by opinion testimony, no foundation has been laid that a co-worker would have sufficient contact with her to form a reliable opinion about her peaceful character outside work."

Questions? E-mail tanford@indiana.edu and refer to 0620.

In the movie "Bananas," Woody Allen plays a man who accidentally leads a leftist revolution in a small Central American country and becomes its Castro-like leader. He is eventually captured and put on trial for treason. The movie was made in 1971.
The trial transcript follows. Find every place in the transcript that includes character evidence and decide whether it is inadmissible or admissible. Remember that character evidence is presumptively inadmissible. It is up to the proponent of the evidence to convince the court that there is a relevant use for the evidence other than to show propensity or that it fits one of the exceptions.

Prosecution:
Q: And you remember Fielding Mellish?
A: He's got a record, he was always being picked up at one demonstration or another. He's a bad apple, a commie. A New York, Jewish, intellectual communist crack pot. I mean, I don't want to cast no aspersions.

Q: No further questions
Clerk: Do you swear to tell the truth, the whole truth and nothing but the truth?
A: I do.
Prosecution: Name?.
A: J. Edgar Hoover.

Q: Occupation?
A: Head of the Federal Bureau of Investigations.

Q: Can you tell the court why you are dressed as a woman?
A: I have many enemies and I rarely go out unless I'm in disguise.

Q: Mr. Hoover, in your opinion, is Fielding Mellish a threat to the security of the United States?
A: Enough to have his phone tapped.

Next witness:
Q: What do you think of Mellish?
A: I'm sorry to disappoint you but I've known Fielding Mellish for years and he is a warm, wonderful human being.

Defendant: Would the Clerk read that statement back please?
Clerk: I've known Fielding Mellish for years and he is a rotten, conniving, dishonest, little rat.

Defendant: Alright, I just wanted to make sure you were getting it.
Judge: You're out of order.

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