Character and related concepts - Next Generation Bar Exam

1. Under FRE 404(b)(3), what must the prosecution provide before offering other-acts evidence in a criminal case?

   Reasonable written notice of the evidence and the permitted purpose, with the reasoning supporting it. Notice must be given before trial unless the court excuses it for good cause.

2. Under FRE 404(b)(2), for what purposes may evidence of other crimes, wrongs, or acts be admitted?

   Non-propensity purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. The evidence remains subject to Rule 403 balancing and a limiting instruction on request.

3. Under FRE 412, what evidence about a victim of alleged sexual misconduct is generally inadmissible?

   Evidence of the victim's other sexual behavior or sexual predisposition. Criminal exceptions include the source of semen or injury, prior conduct with the defendant to prove consent, and constitutionally required evidence.

4. In a homicide case, when may the prosecution offer evidence of the victim's trait for peacefulness?

   To rebut evidence that the victim was the first aggressor. This applies even if the defendant has not offered character evidence about the victim.

5. A defendant charged with assault calls a witness who testifies that the defendant has a reputation for peacefulness. What may the prosecutor ask on cross-examination?

   Whether the witness has heard of specific instances inconsistent with that reputation, with a good-faith basis. Such questions test the witness's knowledge of the reputation; the prosecutor must accept the answer.

6. Under FRE 406, what evidence of habit is admissible?

   Evidence of a person's or organization's regular response to a repeated specific situation, to prove conduct in conformity. Habit may be shown regardless of corroboration or eyewitnesses.

7. Under FRE 404(a)(2)(B), what may the prosecution offer after a criminal defendant offers evidence of the alleged victim's pertinent trait?

   Evidence to rebut the victim's trait, and evidence of the defendant's same trait. Attacking the victim's character opens the door to the defendant's character on the same trait.

8. What does FRE 404(a)(1) prohibit?

   Using evidence of a person's character or trait to prove action in conformity on a particular occasion. The rule bars the propensity inference.

9. Under FRE 405(a), what methods may be used to prove character when it is admissible?

   Reputation or opinion testimony, with relevant specific instances permitted on cross-examination. Specific instances on direct are allowed only when character is an essential element.

10. Under FRE 405(b), when may character be proved by specific instances of conduct?

    When character is an essential element of a charge, claim, or defense. Examples include defamation based on character and negligent entrustment.

11. Under FRE 413 through 415, what may be admitted in sexual-assault and child-molestation cases?

    Evidence that the defendant committed other sexual assaults or child molestation, for any relevant purpose including propensity. These rules are exceptions to Rule 404's propensity bar.

12. Under FRE 404(a)(2)(A), what character evidence may a criminal defendant offer?

    Evidence of the defendant's own pertinent trait. If the defendant does so, the prosecution may offer evidence to rebut it.

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