MBE Question of the Day – Answer

(D) is correct.

Issue: Whether the defendant’s reputation for recklessness is admissible in a civil trial arising out of a
collision in which the defendant is accused of being negligent.

Rule: Character is generally not relevant, and therefore, inadmissible, unless there is an exception
under FRE 404 or 405, or someone “opens the door.” “Opening the door” means a party (usually the
defendant) puts his character into issue by admitting character evidence of himself or the victim on
direct. This allows the opposing party to use similar character evidence against the initiating party
that it was not permitted to use before.

When dealing with character evidence, analyze: (1) the purpose of the character evidence (is it to
prove an element of the claim or defense, is it circumstantial evidence of how the person probably
acted, or is it to impeach the credibility of a witness); (2) what form of character evidence is being
offered (reputation or opinion, specific instances of conduct); and (3) what type of proceeding is it
being offered in (civil or criminal). The admissibility of the character evidence will depend on the
answers to these questions. Evidence of a person’s character is generally not admissible to prove that
on a particular occasion the person acted in accordance with the character trait unless an exception

Under FRE 405(b), in cases in which character or a trait of character of a person is an essential element
of a charge, claim, or defense, evidence may be admissible of specific instances of that person’s conduct.
Analysis: Here, reputation evidence is being offered to prove that the defendant behaved in a certain
way on a certain occasion. This evidence is not admissible as there are no applicable exceptions – the
defendant did not open the door and character not an element of the crime or defense. Because the only
purpose of the evidence is to show that the defendant was likely reckless or negligent at the time the
collision occurred because he had a reputation for recklessness, it is inadmissible.

(D) is correct because character evidence offered to show that a person behaved a certain way at a
particular time is not admissible.

(A) is incorrect because habit evidence is usually inadmissible for the purpose of raising the inference
that the same amount of care was exercised on the occasion in question, i.e., habit may not be introduced
in a negligence case to show that the plaintiff was careful or careless. The rationale for excluding habit
evidence in negligence cases is that evidence of habitual due care raises too many collateral issues,
especially the variability of circumstances. Furthermore, this is not habit evidence. Habit is the regular
response of an individual (their conduct) to a specific set of circumstances, absent deliberation. That
someone is “reckless” or a daredevil is not a habit.

(B) is incorrect because while the evidence might be relevant, it is inadmissible character evidence.

(C) is incorrect because it is irrelevant to the issue of whether this character evidence is admissible