2. Which one of the following is the LEAST likely to be admissible during the prosecution's rebuttal?

The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime of which he is accused. However, the accused may introduce evidence of his good character to show his innocence of the alleged crime.

A defendant puts his character in issue by calling a qualified witness to testify to the defendant's good reputation (or that he has heard nothing bad) for the trait involved in the case. Under Federal Rule of Evidence (FRE) 405, the witness may also give his personal opinion concerning that trait of the defendant. However, the witness may not testify to specific acts of conduct of the defendant to prove the trait in issue.

If the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant or the defendant's reputation, the prosecution may rebut in the following manner: (i) by calling its own character witness to testify to the defendant's bad reputation or their opinion of the defendant's character for the particular trait involved; and (ii) on cross-examination, by inquiring whether the reputation witness knows or has heard of particular instances of the defendant's misconduct pertinent to the trait in question. Fed. R. Evid. 405(a).

Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime charged. While acknowledging that prior acts or crimes are not admissible to show conformity or to imply bad character, FRE 404(b) goes on to say that such prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant in either a criminal or a civil case.

A is correct. The applicable rule is that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, may not be proven by extrinsic evidence. Testimony from a former employer that the witness submitted a false expense report is extrinsic evidence that is being sought to be admitted to attack the witness's character for truthfulness and is thus inadmissible.

B is incorrect. Because the defendant opened the door by presenting evidence of his peaceful and nonviolent character, the prosecution is permitted to then present character evidence to rebut the defendant's evidence. This may be done through testimony as to the defendant's reputation in the community for having a violent temper.

C is incorrect. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation testimony if it relates to a witness's character for truthfulness or untruthfulness. The witness's neighbor's testimony that the witness has a reputation for untruthfulness would be admissible.

D is incorrect. A witness's bias or motive to lie can be shown through extrinsic evidence. The defendant's former cell mate's testimony that the witness asked for money in return for testimony favorable to the defendant would be admissible to show the witness's bias and motive to lie. Most jurisdictions have held that a foundation must be laid on cross-examination before extrinsic evidence of bias is admissible. Although this rule is widely accepted, there is no federal rule in place that mandates this foundation.