Two-Minute MBE Question: Evidence (character evidence)

(C) is the correct answer. Character evidence may be permissibly admitted into evidence in three ways:

First, it may be admitted to prove a witness’s bad character for truthfulness only to impeach the witness. (This is an impeachment category. This is not applicable because the woman is not trying to impeach herself.)

Second, in a civil case, character can only be used when it is an essential element of the case. This comes up in three scenarios: (i) negligent entrustment or hiring, (ii) defamation, and (iii) child custody. That is it. There are many reasons for this. Some scholars think allowing character evidence in a civil case would distract from the main issue of a case and permit the trier of fact to reward the good man and punish the bad, despite what the evidence says. Other scholars say it would substantially increase the amount of mental examinations if character evidence were expanded into areas of psychiatric evaluation and testing.  It would also significantly extend the length of trial. So, remember character evidence is only allowed in very limited circumstances in a civil case.

Third, in a criminal case, if character evidence is used it has to be offered by the defendant using reputation or opinion. The prosecution can then rebut with reputation, opinion, or impeaching the defendant’s character witness with specific acts.  So, in a criminal case, the defendant must “open the door.” The FRE allows the defendant to “open the door” in criminal cases if he or she so chooses because the defendant has so much at stake. Indeed, he has his life and liberty at stake (unlike a civil case where only money is at stake).

Here, the character evidence is not being used for impeachment so it does not fall into the first category. It is not a criminal case so it does not fall into the third category. This is a civil case, and the character evidence does not fall into one of the three scenarios above (negligent entrustment or hiring, defamation, or child custody) so it cannot be used.

(A) is incorrect because this is not a criminal case.

(B) is incorrect because this is not habit evidence. (Habit evidence is a regular response to a particular set of circumstances—i.e., “Mary takes the stairs two at a time.”)  Here, she is trying to describe her driving habits generally.

(D) is incorrect because it would otherwise be considered relevant evidence that is not overly prejudicial. However, character evidence is excluded from civil cases.