Presentation of evidence - Specific instances of conduct

Learning Outcomes

After reading this article, you will be able to identify when and how specific instances of conduct may be introduced as evidence in MBE-style questions. You will understand the distinction between general character evidence and specific acts, the rules for using specific instances in criminal and civil cases, and the role of such evidence in impeachment. You will be able to apply these principles to select the correct answer on the MBE.

MBE Syllabus

For the MBE, you are required to understand the rules governing the use of specific instances of conduct as evidence. This includes:

  • Recognizing when specific acts may be used to prove character or for impeachment.
  • Distinguishing between the admissibility of specific instances in criminal and civil cases.
  • Applying the rules for impeachment by specific acts of untruthfulness.
  • Identifying the limits and exceptions for using specific instances of conduct.
  • Understanding the difference between reputation, opinion, and specific act evidence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. In a criminal trial, when may the prosecution introduce evidence of the defendant’s prior specific acts to prove the defendant’s character?
  2. Can a witness be impeached by evidence of specific instances of untruthful conduct? If so, how?
  3. In a civil case, may a party introduce evidence of a person’s prior specific acts to prove that person’s character in conformity with those acts?
  4. What is the main limitation on using extrinsic evidence to prove specific instances of a witness’s conduct for impeachment?

Introduction

Evidence of specific instances of conduct—sometimes called "specific acts"—is subject to strict rules on the MBE. The Federal Rules of Evidence generally prohibit using specific acts to prove a person’s character in order to show action in conformity with that character, but allow such evidence for other purposes, including impeachment and certain exceptions in criminal cases. Understanding when specific acts are admissible, and for what purpose, is key to answering MBE questions correctly.

Character Evidence: General Rule

Character evidence refers to evidence offered to show a person’s general character or a particular character trait. The general rule is that character evidence is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion.

Key Term: Character Evidence Evidence offered to show a person’s general character or a specific character trait, often to suggest they acted in conformity with that trait on a particular occasion.

Specific Instances of Conduct: What Are They?

Specific instances of conduct are particular acts or events from a person’s past. For example, evidence that a defendant previously committed theft is a specific act, as opposed to general reputation for dishonesty.

Key Term: Specific Instance of Conduct A particular act or event from a person’s past, offered as evidence to prove character or for another permissible purpose.

Admissibility of Specific Acts to Prove Character

Civil Cases

In civil cases, evidence of specific instances of conduct is almost never admissible to prove character in order to show action in conformity with that character. The only exception is when character itself is directly at issue (e.g., defamation, negligent hiring).

Criminal Cases

In criminal cases, the rules are more complex:

  • The prosecution cannot introduce evidence of the defendant’s prior specific acts to prove character unless the defendant first opens the door by offering evidence of their own good character.
  • If the defendant offers evidence of a relevant character trait (by reputation or opinion), the prosecution may cross-examine the defendant’s character witness about specific acts relevant to that trait.
  • The prosecution may also introduce evidence of specific acts to rebut the defendant’s character evidence, but only through cross-examination of the character witness—not by extrinsic evidence.

Key Term: Extrinsic Evidence Evidence offered through documents or testimony other than from the witness being cross-examined, used to prove a fact independently of the witness’s own statements.

Specific Acts for Non-Character Purposes

Evidence of specific acts may be admissible for purposes other than proving character, such as:

  • Motive
  • Intent
  • Absence of mistake or accident
  • Identity (modus operandi)
  • Common plan or scheme

This is often referred to as "MIMIC" evidence.

Key Term: MIMIC Evidence Evidence of specific acts admitted for Motive, Intent, absence of Mistake, Identity, or Common plan or scheme—not to prove character.

Impeachment by Specific Instances of Conduct

A witness’s credibility may be attacked by specific instances of conduct that are probative of truthfulness or untruthfulness. However, this is subject to strict limitations:

  • The examiner may ask the witness about specific acts of untruthfulness on cross-examination.
  • Extrinsic evidence (e.g., calling another witness or introducing documents) is not permitted to prove the specific act if the witness denies it.
  • The court has discretion to allow or disallow such questioning.

Key Term: Impeachment by Specific Acts The process of attacking a witness’s credibility by asking about particular acts of dishonesty or untruthfulness, subject to limits on extrinsic evidence.

Specific Acts and Hearsay

Evidence of specific acts is not hearsay if offered for a non-character purpose, but may still be excluded if it is more prejudicial than probative under Rule 403.

Worked Example 1.1

A defendant is on trial for burglary. The prosecution wants to introduce evidence that the defendant committed a similar burglary two years earlier. The defendant has not offered any character evidence.

Answer: The prosecution cannot introduce evidence of the prior burglary to prove the defendant’s character for burglary or to show action in conformity. However, if the prosecution can show that the prior burglary is relevant to prove identity (e.g., a unique method), the evidence may be admissible for that non-character purpose.

Worked Example 1.2

During cross-examination, a witness for the plaintiff is asked, “Isn’t it true that you lied on your tax return last year?” The witness denies it. The cross-examiner seeks to introduce a copy of the tax return to prove the lie.

Answer: The examiner may ask about the specific act (lying on the tax return) to impeach the witness’s credibility, but may not introduce extrinsic evidence (the tax return) to prove the act if the witness denies it.

Exam Warning

Be careful: On the MBE, extrinsic evidence of specific acts is almost never admissible to impeach a witness’s character for truthfulness. Only cross-examination is allowed, and the court has discretion to permit or bar such questions.

Revision Tip

Remember: In criminal cases, the prosecution may only ask about specific acts on cross-examination of a character witness after the defendant opens the door with character evidence.

Summary

  • Specific acts are generally inadmissible to prove character in civil and criminal cases.
  • In criminal cases, specific acts may be asked about on cross-examination of a character witness after the defendant introduces character evidence.
  • Specific acts may be admissible for non-character purposes (MIMIC).
  • Impeachment by specific acts is allowed only on cross-examination, and extrinsic evidence is barred.
  • The court has discretion to allow or exclude questions about specific acts.

Key Point Checklist

This article has covered the following key knowledge points:

  • Specific instances of conduct are generally inadmissible to prove character or conformity.
  • In criminal cases, specific acts may be asked about on cross-examination of a character witness after the defendant introduces character evidence.
  • Specific acts may be admissible for non-character purposes such as motive, intent, or identity (MIMIC).
  • Impeachment by specific acts is allowed only on cross-examination, and extrinsic evidence is not permitted.
  • The court has discretion to allow or exclude questions about specific acts.

Key Terms and Concepts

  • Character Evidence
  • Specific Instance of Conduct
  • Extrinsic Evidence
  • MIMIC Evidence
  • Impeachment by Specific Acts
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