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9. The evidence of the plaintiff's prior theft is
A plaintiff sued a defendant for libel. After the plaintiff testified that the defendant wrote to the plaintiff's employer that the plaintiff was a thief, the defendant offers evidence that the plaintiff once stole money from a former employer.
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A person's general character, or a particular trait that he has, may be an essential element of the case because under the substantive law, that character or trait determines the rights and liabilities of the parties. In that circumstance, character evidence is not only allowable, but it is also essential. See Fed. R. Evid. 404(b). Therefore, when a person's character itself is the ultimate issue in the case, character evidence must be admitted. Cases where character is one of the material propositions in issue are confined mostly to civil litigation and are rare even among civil actions. See Fed. R. Evid. 405. Most courts, and the FRE, allow three types of evidence of character when character is in issue: (i) specific acts to demonstrate character; (ii) a witness's opinion of that character; and (iii) evidence as to the subject's reputation for the character trait in issue.
In a libel case, evidence of the plaintiff's despicable character is «in issue» and therefore admissible to support a defense of truth. Such evidence may be offered in the form of specific instances of conduct as well as reputation and opinion.
A trial judge has broad discretion to exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.
A is correct. Evidence of the plaintiff's prior theft is admissible as substantive evidence to prove that he is, in fact, a thief because it is an ultimate issue (or «in issue») in the case. The plaintiff is alleging that the defendant committed libel by writing to the plaintiff's employer falsely claiming that the plaintiff was a thief. A defense to a libel suit is truth, and as such, the defendant's claim that he was telling the truth is directly supported by evidence that the plaintiff had a previous incident of theft.
B is incorrect. This answer is only partially correct. Although evidence that the plaintiff stole money from a former employer is admissible, it may also be used substantively as proof of the plaintiff's character for thievery, in addition to impeachment purposes. As explained above, truth is a defense to libel, which means it is essential for the defendant to be able to introduce evidence of prior acts by the plaintiff to prove that he was telling the truth when he claimed the plaintiff was a thief.
C is incorrect. Character evidence is typically inadmissible to show conformity therewith, but when character itself is an ultimate issue in the case, it is admissible substantively. Here, the plaintiff's prior theft is directly relevant to whether the defendant was telling the truth in his letter to the plaintiff's employer, which means it must be substantively admissible.
D is incorrect. Whether the plaintiff is indeed a thief is an essential issue in the case, and evidence that the plaintiff stole money from his former employer is highly probative and has little danger of unfair prejudice.