1. List examples of how to create an inference that a suspect possesses the capacity to commit the crime with which he or she is charged by using circumstantial evidence. In your answer, consider how specialized skill, possession of the means to commit the crime, and physical and mental capacity come into play.
    
2. Explain how circumstantial evidence may be used to demonstrate consciousness of guilt. Consider evidence of flight, concealing evidence, and offers to plead guilty. Explain how possession of stolen property and sudden wealth are circumstantial evidence of guilt.
    
3. Describe what types of character evidence about a defendant are admissible at trial and what types of character evidence are admissible by the prosecutor in rebuttal.
    
4. Explain the types of character evidence about victims that may be offered, both by the defense and by the prosecution.
    
5. Describe when “other acts” evidence is admissible.
    
6. Differentiate character evidence from evidence of habit.
    
7. Explain rape shield laws.

SUMMARY: Direct and circumstantial evidence are of equal significance, and guilt or innocence may be determined based on either direct or circumstantial evidence or by a combination of both types of evidence. However, a number of states require judges in prosecutions based wholly on circumstantial evidence to provide the so-called Webster-type charge.

Circumstantial evidence commonly is used to establish a defendant’s conscious of guilt and to establish that an individual is the victim of the crime with which the defendant is charged.

Character evidence is considered prejudicial and prohibited from being introduced at trial. Federal Rule 404(b) creates an exception and permits a defendant to introduce evidence of a “pertinent” character trait as evidence he or she acted consistent with the “pertinent trait” on a particular occasion. Character evidence includes evidence of a wide variety of human traits including trustworthiness, honesty, law-abidingness, violence, and attention to detail. A pertinent trait is a trait relevant to the charge against the defendant. Honesty and trustworthiness, for example, are pertinent to a charge of fraud or embezzlement. A pertinent character trait may be established by either reputation or opinion evidence.

The prosecution is barred from attacking the character of the accused unless the defendant “opens the door” by offering evidence of a “pertinent” character trait. Once the defendant introduces evidence of his or her character, the door is opened for the prosecutor to rebut this evidence with evidence of the same trait. The prosecutor also may impeach a defendant’s character witness on cross-examination and inquire into the witness’s knowledge of specific, relevant instances of a defendant’s conduct. The cross-examination may focus on arrest, criminal acts, and other bad acts, including the act with which the defendant is charged.

Federal Rules of Evidence 405(b) provides that in cases in which the character or trait of character of a person is an essential element of a charge or defense, “proof may be made of specific instances of that person’s conduct” in addition to reputation and opinion evidence. This evidence must be based on reputation or on opinion.

There is a special rule of evidence in homicide cases that expands the ability of the prosecution to offer evidence of the victim’s character. Federal Rule 404(a)(2) provides that in a homicide case the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut “evidence” that the alleged victim was the first aggressor. The prosecutor does not have to wait for the defendant to place the character of the victim at issue.

Habit evidence is admissible to demonstrate that the defendant acted in accordance with his or her habit on a particular occasion. Federal Rule 406 provides that “[e]vidence of a person’s habit or an organizational routine practice” may be admitted to establish that on a “particular occasion the person or organization acted in accordance with the habit or routine practice.” Admission of evidence of prior criminal acts generally is not admissible because it violates the defendant’s right to be tried for the offense for which he or she is standing trial. This evidence may not be admitted to prove a defendant’s character or predisposition. In other words, it may not be admitted to prove the defendant is the type of person who commits criminal acts.

Federal Rule of Evidence 404(b) provides that the prior acts of a defendant may be admissible by the prosecution to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Other acts evidence, however, “is not admissible to prove the character of a person in order to show action in conformity therewith.” An act under the “other acts” exception may occur prior to or following the commission of the crime with which the defendant is charged.

As part of rape reform in the 1970s, the states and federal government adopted so-called rape shield laws, which restricted the cross-examination of alleged victims and the admissibility of their reputation for sexual “virtuosity.” The thinking was that this evidence was irrelevant to the adjudication of the alleged rape at issue in the trial, diverted the attention of jurors and the court to irrelevant events, and discouraged women from coming forward with complaints of rape.