Evidence

Reasons for Evidence Law
1)  mistrust of juries
2)  affect substantive policies to encourage certain results
3)  affect unrelated substantive policies
4)  ensure accurate factfinding
5)  judicial economy

Rule 102 (pg 41 in supp)
 -  Reasons and policy arguments for evidentiary rules:
1)  fairness in administration
2)  judicial economy
3)  place value on precedent
4)  ascertain the truth
5)  just and fair proceedings

3 main ways evidence is introduced:
1)  sworn testimony
2)  documentary evidence (demonstrative evidence)
3)  real evidence

? Laying a foundation is extremely important before a witness gives testimony.

3 steps to introduce “documentary evidence”
1)  mark the documentary evidence (usually by exhibit number)
2)  have document identified by the witness
3)  introduce the evidence (otherwise jurors cannot consider the evidence)

Rule 103
1)  decision affects D’s substantial rights
2)  the nature of the error was called to the attention of the judge so as to alert the court that the proper course of action and enable opposing counsel to take proper corrective measures.

Rules on Objections
 -  objections must be timely, preferably before the witness answers (however, if after the person speaks can make a motion to strike)
 -  objections must be specific as to their nature and the basis of the objection : lawyer cannot on appeal give another reason
 -  if an objection is overruled, it is wise to “make an offer of proof” outside the presence of a jury in order to place the objection fully into the record so that the appellate court will be able to tell what the objection was over.
 
 

Rule 103
 - substantial right of the party is affected and the party made a timely objection allows for an evidential error to be found.

 - if judge overrules the objection, it is wise to " make an offer of proof" of the claim in order to preserve the objection on the record.

 -  judges have broad discretion.  Harmless error rule:  unless the judge made a harmful error that affect substantial right of the person, the judge's ruling will stand.  (very stringent standard)

 -  Criminal trials:  watch for Constitutional Problems that the appellate courts will not see a "harmless error" because the rights of the person will supersede the right of the trial judge to make his ruling broad. IF the verdict likely affected the verdict, the appellate court will view a problem.  If it is a constitutional error, the state must prove that it had not effect on the D.

 -  Problem 2a:  "more probable than not": "leads you to think that he could be driving that fast" and "not conclusive."

 - Problem 2b:  evidence regarding falling brick

Rule 401
-  "relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
 -  look at the author of the evidence
 -  issue to be established (common law relevance) must bear some relevance to the issues of the case (materiality)
 -  how does the evidence relate to the issues of the case

 -  leads you to think he could be is the standard:  in other words, the rules states, that relevant evidence must be more probable than not than it would be without the evidence. This is a very liberal standards of relevancy.

Rule 403
-  Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.  "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
 
 

State v. Chapple
-  D claims on appeal after being convicted for murder that the trial court erred when it admitted gruesome pictures of the murdered victim.
-  Rule:  pictures are admissible as long as they are relevant even though they have the tendency to prejudice the jury against the person who committed the offense.  However, the trial court has discretion to decide and their ruling will not be overturned unless the discretion was "clearly abused."  The court at all times must go beyond the question of relevancy, however, and consider whether the evidence has probative value which outweighs the danger created by the admission of the exhibit.  The judge must consider the evidence's purpose.  If the evidence has no tendency to prove or disprove any question which is actually contested, they have little use or purpose except to inflame and would not usually be admissible.
-  Holding:  in this case, the pictures, although relevant in nature, they had no probative value and therefore it was an abuse of discretion to allow the pictures to come into evidence because their sole purpose was to inflame the jury.  Conviction overturned.
- Notes:  pictures could have been admitted to prove the death, to identify the victim, to help determine the degree of the atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state's theory of how and why the homicide was committed.

Rule 105
- Limited Admissibility:  "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."
 
Rule 411
- Liability Insurance:  "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."

"A brick is not a wall"
-  Relevancy Test:  Go through each step to conclude whether info is relevant.  Then decided whether the info should not be admitted because it is substantially outweighed by prejudice, confusion, misleading, etc. under 403.  Another test you must apply is whether the information is "probative."  The info must be of some value to the issues of the case.  The 3 step process is:
1)  offer of evidence
2)  the issue to be established
3)  the issues in case
 

- relevancy focused upon the offer of evidence and the issue to be established (at common law)  Under 401:  the standard is very loose as long as the offer of evidence any tendency to make the existence of fact to be established more or less because of the evidence.
- second prong, the issues ot be established must be "material" to the issues of the case.
401::  the issue to be established must have consequence to the case.

HYPOS
-  Witness testifies that P did not wear safety glasses.  hypo:  provided to show lack of care by the P.  The issues might relate to conributory fault in a negligence case.  This evidence would be material to the case.  However, in a wk comp case, the info would be irrelevant because there is no issue o contributory negligence.
- D going over 80 mph 30 miles away.  The issue to be est. is the speed at impact. The issues in the cause relate to fault.  Therefore, the info is admissible.
- Boys are running.  The issue to be est. is to prove that the boys threw the stones over the bridge and the issues in the case was causation:  therefore the info should be allowed.  The court case recited in class proved that the info was allowed and the appeals court did not disturb the trial judge's discretion.

Flight Information:
- info regarding D's flight is relevant and is often admitted and is generally admissible as est. through precedent.
-  proof that someone ran away can be evidence to be used against the D to show guilt.  That type of thought process is readily ascessible to the court system.

Rule 402:  irrelevant evidence is not admissible.  Relevant evidence is.

Rule 403:  if the evidence is relevant it may be exclused if the probative value is substantially outweighed by:  prejudice, confusion of the issues, misleading, causes undue delay, or too cumulative.
 Notes:  in a close case, you admit the evidence because it must "substantially be outweighed" by the countervailing factors.

* Do not confuse the admissibility issue with the "sufficiency issue" because they are different.  The evidence does not have the sufficiently prove an issue.

Problem 2E Page 85
offer of evidence:  info regarding the fact that the woman had sought refuge in a women's shelter for battered and abused children.
issue to be established:  domestic problem and prior violence to her from the D
issues in the case:   whether the man commited murder or manslaughter
Therefore:  the info should be admitted because it is relevent. and affirmed on appeal.

Problem 2f Page 86
1) certified copy of guilty plea
2) how accident happened and why
3) goes to prove causation
:  because it is a close call, the evidence should be admitted. However, the court of appeals found that the evidence was too confusing and should not be admitted and reversed the trial judge who let the info come in.  The appeals court found that the info was not sufficiently probative value to justify the confusion under Rule 403.
The info satisfied 401 because it was sufficiently relevant.

Problem 2g on page 87
- Driver says that her insurance will cover the accident.
-  see answer below.

Rule 411: liability insurance:  evidence that a person was or was not injured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of the witness.
:  Purpose:  aimed at the principle that info must be of probative value and to protect those people who have insurance so that there is no inference that the driver was less careful.  It also tends to mislead the jurors so that they may be convinced of the deep pockets of the insurer.  (may tend to prejudice the jurors)
***--- under this hypo of problem 2g on page 86, the evidence is both admissible because it is relevant but because it contains info about the insurance, it is also inadmissible.  Under this situation, the judge can admit the evidence with an instruction that limits that jurors only to consider the evidence for one purpose and not the other.  In this case, the judge may state that the jurors can consider the info as tot he consciousness of the fault of the driver, but not for the purposes to inquire whether the person was insured or not.  As a trial atty, you may not want to ask for a limiting instruction because it tends to make the jurors focus more on the evidence and thus have an undesired effect.
- traditionally, however, the courts will allow the statement to come in.  (even if the witness is silent after the accident - that will likely also be admissible.)  ((( professor talked about gender bias on this issue because people act different when they are female and male and sometimes women will apologize for acts that are not even their fault.

Rule 106
Remainder of or related writing or recorded statements
-  When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. (applicable to written and recorded statements: and the rule itself does not apply to oral statements - courts will not allow the application of rule to oral statements)
- Purpose of rule:  to avoid situations where documents are being use out of context.
Problem 2h:  the documents should allow the entire document to be put into evidence so that all of the statements are put into context.

Examples under 403 where the judge may do certain things to make trials speedy and prevent delay.  Page 90
-  judges are not more active now than ever before (judges will not more carefully manage the trial and limit trial time and exclude evidence which is too cumulative or too time consuming.)

Rule 104
- judge should screen the evidence for only admissible evidence and jurors are suppose to give the weight to such evidence.
-  Under a, the judge determines what information should come in on the basis of the rules.  Look at rule for specific citations of examples.
-  Under a, the judge listens to the attys. to decide whether the info should be allowed into evidence.  Judge decides whether the admissibility rules apply and how and which evidence should be excluded.  "Preponderance of the evidence" is used by the judge to determine if the rules of permissibility have been met.
- Under b,  attempts to deal with those questions that relate to relevancy questions and questions that deal with probative value.  Jurors can deal with questions dealing with how much weight to give to any offer of evidence.  When the relevancy of the evidence depends  upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Ex. into of pistol.  Officer talks that it is the pistol that was found at the sight.  The lawyer then said that they will connect it up later with later evidence.  The pistol is relevant in the case.  What the judge does it this case, the judge admits the evidence on the basis of which that later evidence will be included later that will fulfill the condition later.  (prima facie evidence is all that is necessary: some evidence must be in the record)  Prima facie is the standard, not preponderance of the evidence as in rule 401a.  Some evidence must be in the record that will allow the jurors to conclude that the evidence is relevant.

***Throughout the course we will come back to determine whether the evidence falls under a or b because the standard of evidence to prove to the judge is different

Problem 2I
-  similarity of he condition of the bike is important and there is dispute to whether the evidence should come in.
-  104b applies and the evidence should be admitted because there is some evidence in the record to show that the evidence is relevant.  The jurors should evaluate this evidence and the judge should admit it.
-  104a applies because the evidence is being admitted through expert testimony which is named in the rule.  The judge is allows to decide whether the expert is able to testify, if the expert is qualified, and the judge also can decide the base foundation of the testimony.  The evidence should be excluded because the foundation is not there and the case should be affirmed on appeal.
-  Authors of the book believe that b should apply, the court however, in real life thought it was an A problem and the appeals court affirmed the decision out of deference to the trial court's broad discretion.
_ this is extremely important because it does matter whether it fall s under 104a or 104b

Problem 2-J:
Facts: Three men rob a bank with .38 caliber handguns. One man confesses
and fingers the defendant. The government shows that the defendant has a
friend who owns a car matching the description of the one used in the
getaway, and that defendant's fingerprints were found in the car.
Surveillance films show a man resembling defendant holding a handgun
during the robbery.
 Issue: Whether evidence that defendant was carrying a .38 caliber
handgun when arrested is admissible.
 Answer: It is relevant to showing that defendant committed the crime if
it is the same gun that was used in the crime. It also tends to show
character (persons who carry guns are more likely to be bank robbers
than those who don't). However, if jury may confuse the issue and accept
the confession of the one robber as proof that this was the same gun
that was used because it was the same caliber. The judge should admit
the evidence, although circumstantial, because the jury is probably able
to apply the proper weight to it.
-  there is a potential for prejudice from the juriors.  However, there is not so much here to make this a unadmissible evidence.

Problem 2-K:
Facts: Victim is murdered by a person who entered through the garbage
compartment. A woman's stocking that had been ripped (like a burglar’s
mask) was found under her body. Defendant's fingerprints were found on
the garbage compartment door. The victim's rings were stolen and there
was evidence that defendant had offered to sell a ring to a witness a
few weeks after the burglary.
 Issue: Whether evidence that three ripped stockings were found in the
defendant's room should be admissible.
 Answer: Let the evidence in.  The line of inferences must be that
the ripped stockings found in the apartment were made into masks,
and that the ripped stocking found at the scene was a mask, and that
the one found at the scene matched or belonged to the defendant.
The jury might jump to the conclusion that the one found at the scene
matched one found at the defendant's house. This evidence is only
circumstantial. However, given the fact that ripped stockings are not a
common item, the evidence should be let in because the jury is probably
able to give proper weight to it.
 

People v. Collins
Facts: A woman was robbed in an alley. She describes her assailant as a white female in dark clothes. A witness observes a white female with a ponytail get into a yellow car with a black male driver with a beard. The defendants loosely match the description of the people observed leaving the alley.
Procedural Posture: The prosecutor introduced an expert witness mathematician who was a mathematics instructor from a state college who testified about the mathematically probability that persons who possessed the various characteristics possessed by the D and his wife existed.  The witness inferred that there could be but one chance in 12 million that the D and his wife were innocent and that another equally distinctive couple actually committed the robbery.  At trial, the D objected to the witness’ testimony on the grounds that it was based on unfounded assumptions.  However, the objection was overruled and Collins was convicted.
Issue: Must applications of mathematical techniques in the proof of facts in a criminal case be critically examined in view of the substantial unfairness to the D?  YES
Holding:  The prosecution’s theory of probability rested on the assumption that the witness called by the government had conclusively established that the guilty couple possessed the precise characteristics relied upon by the prosecution.  No mathematical formula could ever establish beyond a reasonable doubt that the prosecution’s witness correctly observed and accurately described the distinctive features which were used to link the Defendants to the crime.  The most a mathematically formula could ever yield would be a measure of the probability that a random couple would possess the distinctive features in question.
- notes suggest that occasional cases approve of use of probabilities to show identity.  (to make evidence that they have the right body to the right person, etc)
- how can the prosecutor use the number?  Can state that the fact that they are an unusual couple (1 in 12 million) and that is it.  Cannot do as the prosecutor did here as to make an inference of guilt based on the stats.  In other words, you can only use info in a very limited way.  Stats only prove what happens in a random distribution, but it is not percise.
-  Reasonable doubt standard must not be harmed as it was in this case.
-  Court is concerned that even if we do have accurate figures, the jurors will be confused about what to do with the information and how it relates to the standard burdens of proof.
-  you have to let the jurors conclude themselves what the figures stand for, you cannot tell them what the evidence means in these situations or the court will likely find undue prejudice under 403.

Problem 2-L:
Facts: Defendant manufacturer makes 80% of the tires that an auto shop uses. One tire explodes, injuring a worker. The technician who tested the exploded tire determined that it was faulty. But no plaintiffs wrote down the markings on the tire, so they can not say conclusively that it was made by the defendant.
Issue: Whether the fact that defendant makes 80% of the tires used at the shop is admissible.
Answer: It is relevant because it tends to establish that the particular tire in question        belonged to the manufacturer. However, there is another issue besides who made the tire:  whether the manufacturer was negligent in making the tire (i.e whether it was actually defective). It is likely that the jury would confuse the issue and gloss over the negligence issue and latch onto the 80% number to assume that it was 80% likely that the defendant was liable.

Character Evidence
(questions to always ask)
What?
 - how they act (likely to be most persuasive) (not admissible)
 - reputation (admissible)
 - character traits (like honesty)(proclivity toward violence)
 - opinion (admissible)
When?
 -  Propensity Rule? 404(a) "evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion; except:"
  - can't give evidence that a person is violent and therefore the person is guilty (this evidence is inadmissibility)  When evidence is given to prove that someone acted in accordance with a character trait, that evidence is inadmissible.
 -  3 exceptions:
  a)  character of the accused may be brought in:  (only applies in criminal cases - not civil lawsuits. )  : must first come in by the defendant and then the prosecutor can rebut with a cross exam.  See Michleson case.  Can't predict behavior on the basis of past behavior is the policy reason for such a rule.  The accused can bring in character witnesses in order to defend themselves.  In theory, the character trait should be relevant to the charge: (perjury = honesty) however, courts are very loose to let the info in.  In the federal courts, the D may be entitled to a jury instruction that would allow the jurors to be instructed that such evidence may be probative to give "reasonable doubt" to be justify a not guilty verdict.
  b)  character of a victim may be brought in: (will talk about on Friday) Largely in self defenses this will work.  For example, in a self defense case, you may want to give evidence of the victim as a defense.
  c)  character of a witness for "truth and veracity":  the character of a witness may be used to impeach the witness as provided by rules 607-609.  In criminal trials, the D becomes a witness if he decides to testify on his own behalf.
  d)  also a fourth exception:  rule 415 (we will talk about this later)
- 2 fine distinctions
 1)  the rule is only applicable when you are offering propensity evidence to prove that the person acted in such a way that proves the claim.
 2)  where character elements are part of the actual proof of the case: not very likely in criminal trials:  ie (sexual conduct of an unchaste woman would make the woman's character part of the criminal trial)  Entrapment defense is another case where the D's own propensity is something necessary to prove any "previous predisposition to the crime"  D's character may become part of the issues of the case.  (Watch for entrapment cases for this rule)  In civil cases: defamation is a case where a character trait is part of the defense (truth as in this case).  Also, look for in defamation cases, a damage to reputation will have to be proven so this will make it part of the actual determination that must be prove.  In negligent entrustment cases, (lend car out to reckless driver and someone sues for negligent entrustment) the issue of the person's who was lent the car may become an issue in the case.  Also, child custody cases: fitness of the parents are at issue.  Also, in wrongful death claims, worth of the actual person may be an issue for damages purposes.  NOT VERY OFTEN THAT CHARACTER WILL BE AN ELEMENT OF THE CASE.
-  example: person steals something and is charged with theft.  The person's character is not admissible because the elements do not require that the state must prove that the person's character was dishonest.  Does not raise character as a particular charge.
-  second fine distinction:  Rule 404B:  where you are introducing specific acts of conduct done in the past (rape) and this someone reflects on the issue of the case.  Example (possession of stolen property).  Person says he didn't know it was stolen.  However, if you can introduce the evidence that he has stolen property 14 times in the past, this information tends to discredit the information and therefore can be admissible.  (PRIOR ACTS CAN BE OFFERED TO PROVE)

How do you prove the character testimony?  See Michelson v. US
 - direct (D can bring info in)
 - cross (exmainer is able to ask about specific instances of conduct that may reflect on the issue)
 - rebut
- policy reason:  cross examiner can put the information in perspective.  Look at footnote 16 in Michleson.

Michelson v. US (westlaw handout case)
Facts:  D was on trial for bribing a federal revenue agent in which although he admitted to passing the money, he claimed that it was done in response to the agent's demands, threats, solicitations, etc.  On direct examination, D called 5 witnesses who testified to the D's good reputation and moral character.  When the prosecution cross-examined those witnesses, the defense counsel object to question that inquired whether the D's character witnesses ever heard that the D was arrested for receiving stolen goods 27 years before trial.  After the objection was overruled and affirmed by the court of appeals, the Supreme Court granted cert.  after the D was convicted on the fact that the D's creditbility was a likely determining factor.
Holding:  while the use of such evidence cannot be brought about without D's opening the door to such a line of questioning, when Defendant does bring witnesses to testifiy about his reputation and moral character, the prosecution is entitled to test the witnesses own credibility so as to prevent the defendant from profiting by a "mere parade of partisans."  In order to overturn the judge's discretion that allowed the testimony in despite the jury instructions limiting the cross-exams effect, there must be a prejudicial abuse of discretion which is lacking here.  Although the crimes are unlike each other, both proceed from the same defects of character which the witnesses said this defendant was reputed not to exhibit.  Reports of his arrest would tend to weaken the asserting that he was known as an honest law-abiding citizen.  In addition, although the arrest was 27 years before trial, the witnesses dated their acquaintance with the defendant as commencing 30 years before trial which makes such information relevant to their testimony.  Conviction Affirmed!
-  courts should be careful so as to not entertain questions that do not have any basis in reality so as to not influence the jury improperly.  The lawyer must have a good faith basis in putting forth the question.

Rule 404:  Character Evidence not admissible to prove conduct, but there are exceptions.  1)  when evidence of a pertinent trait of character is offered by an accused or by the prosecution to rebut the same, 2) evidnce of the character of the victim or evidence offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor, 3) evidence of a character provided in rule 607, 608, and 609.
- character evidence is never admissible in civil cases.  However, some courts allow the evidence to come in if the underlying conduct is criminal in nature.  It should be noted, that, rule 415 allows the evidence to come in where the plaintiff seeks damages for sexual assault or child molestation.  In this setting, claimants could prove that the D comitted other offenses of sexual assult, which may be considered for any relevant purpose.
- Rule 404 dest not bar evidence of character whenit is offered for other reasons thatn to prove conduct on a particular occasion.  Rule 405(b) provides that proof of specific instances of conduct is admissible whenever character is an essential element of a charge or defense.  In criminal case, character is almost never an element of the charge or defense. Policy reasons:  we do not convict a person who is a bad person or acquit a person because he is a good person unless he did not commit the charged offense.

Problem 5-A:
Same fight except the prosecution (first) offers
witness testimony that the defendant is "agressive...and prone to
violence," and the defense (second) offers witness testimony that the
defendant is "peaceable...and not likely to start a fight."
 
Issue: Whether the statement is admissible under FRE 404/405.
 
Answer: No to the prosecutor, yes to the defendant. 404(a)(1) only
allows the prosecutor to introduce evidence of the defendant's character
to rebut character evidence introduced by the defendant. However,
404(a)(1) allows the defendant to bring in evidence of his good
character.
 
Hypo regarding classmate's punctuality
On direct..
- Can get information about their Opinion
- Can get information about their Reputation
(character evidence is limited to opinion and reputaton about a person's character)
- Can get information on what the person "personally observed."
- Cannot ask about specific instances on direct***
On cross..
- can ask about specific instances (tactically - be nervous about asking that)-
On rebutal....
- can offer opinion and/or reputation testimony
:::::  the advantage that allows a D to parade good witnesses for their testimony will only be available to those people who have led really an unblemished life and have a lot of good character witnesses (priest, banker, etc.)

Rule 404: part 2
-  Character of the victim (a lot of time is raised in self-defense cases)  can be introduced as an exception : allows defendant to put evidence into about the victim regarding a pertinent character trait.

Problem 5B:  under 404a2 the character of the victim may be brought in because this case involved self-defense.

Rule 405:  Methods of proving character:
a)  reputation or opinion: in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.  On cross-examination, inquiry is allowable into relevant specific instances of conduct.
b)  specific instances of conduct:  in cases in which character or a trait of character of a person is an essential element of charge, claim, or defense, proof may be also be made of specific instances of that person’s conduct.

- Be aware of rape shield rule :  Rule 412 (tends to be amended every three of four years to make sure to look up often before using rule blindly)
-  Also, see Rule 412 in the class handout.
 -  evidence pertaining to the sexual history of a sex crime victim is restricted.
412A:  Evidence generally inadmissible.  The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions b and c.
1)  evidence offered to prove that any alleged victim engaged in other sexual behavior is not allowed
2)  evidence offered to prove any alleged victim’s sexual predisposition is not allowed

B) Exceptions:
1)  In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
a)  evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.
b)  evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
c)  evidence the exclusion of which would violate the constitutional rights of the defendant. (right to confront the accuser as per the 6th amendment. D has the right to confront his accusers)
 2)  In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
- keep in mind that most rape shield statutes have pretrial requirements so as to confront any of these issues outside the ears of the jury.
-  also, there are more specific exceptions in rules 413-415.  (sexual assault cases, child molestation crimes, sexual assault or child molestation in civil cases) In general, other offensives are admissible so as to allow evidence of the D's propensity to make these crimes.  This is different than with other crimes because this is more harsh and the courts are more agreeable to let the information in.

Problem 5E
 The testimony of Fred is admissible under 412(b)(1)(B) because
it is evidence of "specific instances of sexual behavior" with the
accused "offered to prove consent."
However, Greg's testimony, although reputational, is barred under 412(a)(1) as being offered to prove that Leslie "engaged in other sexual behavior", and 412(a)(2) as being offered to prove "sexual predisposition."
Also, Thomas' remarks are inadmissible under 412(a)(1) as being offered to prove "other sexual behavior." However, Fred might argue that at least Thomas' remarks are admissible under 412(b)(1)(A) to prove that Thomas was "the source of semen, injury, or other physical evidence."

Rule 413
- in a criminal case where the D is accused of sexual assault, evidence of D’s commission of another offense or offenses of sexual assault is admissible, and may be considered on any matter to which it is relevant.

Rule 414
-  provides that in criminal trials for child molestation, evidence of D’s commission of another offense or offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

Rule 415
-  extends the new doctrine of 413 and 414 to civil cases raising issues of sexual assault or child molestation.

See handout of MN Rule 404:  Admissibility of Character Evidence
- you cannot introduce evidence of a person's character to prove that they did the crime
-  there are 3 exceptions:  character of the accused can be introduced by the accused, character of the victim, and the character of the witness.

Look at 404(b):  still cannot use for propensity purposes, however, it may be admissible for other purposes:  proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
- EVIDENCE OF SPECIFIC ACTS OF CONDUCT CAN BE ADMITTED TO SHOW CERTAIN SPECIFIC PURPOSES.
-  Past acts have to have some relationship between the past acts and the current crime charged.  The federal courts are more protective than the state courts in this area and the fed court will likely see the B part more narrow and see more prejudicial concerns.  MN courts will allow the evidence through and will allow prior evidence of bad acts to come through.  (exception that swallows the rule)

*****- 4 basic concerns that courts must address when allowing the evidence of prior acts to come in:
 1)  is offer for a valid purpose?
 2)  does it tend to prove the purpose? (relevant for that purpose)
 3)  is the probative value substantially outweighed by the potential for prejudice (403 concerns)?
 4)  if requested, the judge should give a limiting instruction.

- Nothing is more common in federal courts than drug cases in which the govt offers evidence that on some other occasion D sold drugs, as proof that on this occasion he “intended” to sell similar drugs found in his possession.  And specific acts are admitted on many other points, like knowledge, motive, and plan.  Obviously the court must carefully analyze probative worth and risks of unfair prejudice and confusion of issues, and often the proof is excludable under 403 even though it is marginally relevant on some point.  See 4 part test above on how must courts decide which evidence comes in and what evidence does not.
-  As the book states, “Prior offense evidence may be admitted in criminal cases on any issue to which it is relevant unless probative value is substantially outweighed by the risk of unfair prejudice, except that it is not admissible if its only relevance is to show a propensity on the part of the accused.”

5H
- proving intent to sell cocaine
- does it fall under 404b?

5I
- modus operandi of suspected criminal:  8 times before the man robbed the bank the same way ( can this evidence come in? )  YES
- a person's modus operandi is admissible.
- this is an easy case because the acts are "strikingly similar" to the modus operandi of the D in the past.
- however, if you change the facts and instead
- 104a :  judge decides
- 104b :  jurors get to decide based on a prima facie showing.

US v. Huddleston
-  The rules do not require a “preliminary finding” by the court that the govt. has proved a prior act by a preponderance, but requires only a “threshold decision whether the evidence is “probative of a material issue other than character.”  Second, admitting evidence of prior acts raises a question of relevance condition on a fact under FRE104b and therefore it is up to the jury to decide by a preponderance of the evidence whether D committed the prior act.  By this approach, proof of a prior crime is relevant if the jury “can reasonably conclude that the act occurred and that the D was the actor.” And the jury decides whether the govt. has shown these points by a preponderance of the evidence.
-  however, this holding is not binding on the states and some have adopted it and other states have not.
-  104b:  is there some evidence in the record that would allow the jurors to see that the D committed the robbery.
-  Prosecution must show that the prior acts took place and that the D was involved in committing those acts  (prima facie showing:  104b ruling.

Dowling v. US
- just because a D was acquitted on a previous charge, will not preclude the prosecutor from using the prior acts.  All the prosecutor needs to prove is that the prior crime was committed by a “preponderance of the evidence,” not beyond a reasonable doubt, as required in the prior proceeding.

State courts go through a different approach.  See handout.
 
 
 

Habit and Routine Practice
Under Rule 406: habit and routine practice are admissible and relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Habit v. Character
Habit = a regular response to a repeated situation (things that do not have moral overtones) - a situations that is semi-automatic : is likely to be seen as a habit.  Must establish a regular practice with a certain type of conduct and consistency with that habit.  Habits are reflex behavior and/or mechanistic.  ** Habit evidence is fully admissible under 406  (drinking habits will likely come in as long as a foundational requirement is met by establishing that the person will act a certain way everytime:  ie.  person drinks 6 beers every time they go to the bar vs. the person has a drinking problem (the latter is character evidence and thus not admissible, but the previous establishes a general habit that is admissible)
Character = generalized description of one's disposition in respect to a general trait such as honesty, carefulness, etc. While habit is more specific.

Problem 5-M
Two cars collide, killing all of the passengers with no
eyewitnesses. In the wrongful death trial, one of the parties seeks to
introduce testimony that one of the drivers was "a good careful driver"
as evidence that the other must have been at fault.
-  Issue: Whether this evidence is admissible under 406 as a habit.
-  Answer: No. "Good careful" driving is evidence of general character and
thus inadmissible under 404(a). There is no way to characterize being
careful as a habit, because habits involve mechanical, reflexive type
actions.
(You may be able to illicit testimony on whether the person usually goes over the speed limit on the type of highway the accident occured on - but not whether the person is a "good, careful driver")

Problem 5-N
A mechanic is injured by an exploding can of freon after he
heated it in a coffee can of water in order to raise its pressure. The
defendant manufacturer seeks to offer testimony by a fellow worker that
he had often seen the mechanic use an immersion heater to heat the
water.
-  Issue: Whether the evidence by the fellow worker is admissible as a
habit under FRE 406.
 - Answer: Yes. The repeated use of a certain tool for a certain purpose
can be properly characterized as a habit, rather than a character trait.
The evidence should be admissible as long as the witness had observed
enough occurrences that it was a habit.

**** In MN, the courts allowed evidence that a man usually shoots at pheasants when driving.  (professor thinks this was a stupid call - how can this be a habit?)

Problem 5-O
An illegal immigrant was deported, and returned, subjecting
himself to higher penalties for re-entry. He claims that he was not
served with the papers telling him of the higher penalties. As proof
that he was served, the government seeks to introduce testimony by an
INS officer that it is the standard procedure of the agents to sign the
warrant, get a thumb print, and give the notice to the deported person.
-  Issue: Whether the evidence of the normal process of deportation is
allowable here to show that it was followed in a particular instance.
 -  Answer: Yes. The evidence does not need to be corroborated under FRE
406.

RULE 407 :  SUBSEQUENT REMEDIAL MEASURES:
- when a company redesigns and fixes a problem after the accident, the court will not allow this evidence in to prove negligence or culpable conduct (includes strict liability as the next case shows)
-  however, the info can come in if offered for another purpose like proving ownership, control, feasibility of precautionary measures, impeachment, etc.
- policy reasons for rule:  it is unwise to discourage efforts to make things better or safer and efforts to prevent future accidents may not show or even indicate that past practice or conditions amounted to negligence or fault.
** keep in mind that changes made before the accident are admissible, just not changes made after the accident occurred.  Under the rule, however, there is a situation where you can imput the evidence.  Look at example on page 6. In that type of case, you can use the subsequent change because the event or injury occurred after the design change.  ****  very important to understand. Only applies to remedial measures taken after the accident or injury!!!!!!
EXCEPTIONS TO RULE:  rule does not require exclusion of evidence if offered for another purpose (ownership, control, and feasibility of cautionary means is a big issue in product liability cases)
- this still remains and issue in state courts.

Flaminio v. Honda Motor Co.
Facts: Flaminio was injured when the Gold Wing motorcycle he was
riding began to wobble, and he lost control.
Procedural Posture: The trial court denied Flaminio's offer of
evidence that Honda had thickened the front struts of the motorcycle
after his accident, under 407's exclusion of subsequent remedial
measures. The jury returned a defense verdict, and the P appealed on the
basis that 1) the evidence was offered to impeach any testimony by Honda that they would never have thickened the struts, and 2) that Rule 407 should not apply in products liability cases, and 3) the federal court was bound to
follow state law interpretation of whether subsequent remedial measures
were admissible because it is a matter of substantive law (Erie doctrine).
Issue: Whether FRE 407 applies in products liability cases.
Holding: Yes.
Majority Reasoning: There was no offer by Honda that they would not
have thickened the struts, so the evidence can not be used to impeach
them. Furthermore, such an exception would swallow up the rule. Also,
the policy behind the rule is to encourage people to make things safer.
Since a strict liability defendant still has a motivation to make things
safer, he would be discouraged from doing so if evidence of subsequent
remedial measures was used to show that the product was inherently
unsafe. Thus, the rule applies in products liability cases. Lastly, the
rule is more procedural than substantive, and thus within the power of
Congress under the necessary and proper clause, avoiding a conflict with
the Erie doctrine.

Rule 408:  Evidence of compromise or offers to compromise are NOT admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations are likewise not admissible.  (based on public policy concerns that not every case should go to trial and lawyers should not find settlement negotiations risky if in trying to settle the other party could use this in trial) *****Limitation:  there must be an actual dispute regarding the validity of the claim or the amount of the claim.  Some state rules are different in that "facts" during negotiations are admissible as in MN.  It may allow the evidence to come in for another reasons, see the rule.  Documents created prior to the litigation, will be discoverable and will not thus be protected under the rule.
- watch for issues regarding bias and obstructing justice (llok at the rule)

Rule 409:  Payment of or promise to pay Medical and Similar expenses are not admissible to prove liability for the injury.

Rule 410:  Pleas, Plea Discussions, and Related Statements are not admissible. (public policy strongly favors plea bargaining as a way of disposing criminal case, and without protection, such bargaining could not occur)  However, watch for situations where statements can be use for perjury determination.  Criminal law admissibility of pleas, plea discussions and related statements.  (if they are talking to police - not available for protection - if they are talking to prosecutor - the statements are protected from admissibility)
- There are exception where the evidence can come in (like to prove perjury or to impeach witnesses)

Rule 411:  Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.
Liability insurance is not admissible whether the person acted negligently or otherwise wrongfully.

WITNESSES AND COMPETENCY
Rule 601:  presumption of competency and competence is determined by state law.
Rule 602:  witness must have personal knowledge (most important rule***)  NO ONE IS COMPETENT UNLESS THEY HAVE "PERSONAL KNOWLEDGE" OR THINGS THAT THE PERSON PERCEIVED AND RECALLED.  This rule does not pertain to expert witnesses however.  The experts can use other information and there is no requirement to testify on the basis of their own personal knowledge.
Rule 603:  every witness required to take an oath (to testify truthfully or by affirmation)  Promise to tell the truth.
Rule 604:  interpreters must be provided if needed and are treated as witnesses.  Must be a neutral witness.
Rule 605:  no judge can be a witness as well as the judge in the same case.
Rule 606:  juror may not testify as a witness (there are a few narrow exceptions)

 - Lawyers may not testify in certain situations - like when they are an advocate in the same case.  Many decision hold that the judge has discretion to exclude such testimony or to condition it on withdrawal by the attorney from the case.  Sometimes, if the issue is small and the harm is great, the judge can allow the testimony.

Common law affect on the Rules dealing with competency.
- mental capacity:  requirement has survived in states, but not in the federal rules.
- religious beliefs:  now mostly prohibited by state constitutions to base a requirement on any religious basis.
- criminal convictions:  a few state statutes remain rendering a witness incompetent who has been convicted of perjury.
- infancy:  only applicable if the court renders the person incapable for a variety of reasons.  Some states have presumptions set for very young children.
-  interested parties:  sometimes there will be bans - but this is abandoned by all courts

Ricketts v. Delaware
Facts:  The D was accused of raping a 5 year old daughter of a person who he knew.  At trial, the child was examined by the court and counsel  as to her understanding of the concepts of truth and falsehood.  While the child did not understand the concept of perjury, she clearly understood the difference between the truth and a lie.  The court permitted her to testify and the D was convicted.
Issues:  May a young child testify if he demonstrates an understanding of the concepts of truth and lies?  YES
Holding:  Under Delaware’s evidence rules, anyone is presumed to be competent to testify, provided that they take an oath and demonstrate a basic understanding as to its meaning.  Here, the child demonstrated an understanding of the concept of truth and therefore is competent to be a witness against the D.  Affirmed.

Rock v. Arkansas
Facts:  The D was involved in a fight with her husband in which he was killed by a bullet wound.  Because the D had only a vague memory of what had occurred, she was put through hypnosis and recalled that her finger was not on the trigger when the gun discharged.  In addition, expert examination  of the gun revealed that the gun was defective and prone to fire when hit or dropped, without the trigger being pulled.  The trial court excluded this testimony as unreliable and D was convicted.  On appeal, the state supreme court laid down a rule that no hypnosis-induced testimony would be admissible in any case, civil or criminal.
Issues:  May a criminal defendant be prevented from using evidence obtained by hypnosis as a defense?  NO
Rule:  A defendant has an absolute right to testify in his own behalf and a necessary component of this right is the ability of the D to tell his story in his own words.  Although a state has a right to prevent perjury, however, where it cannot show that a per se incompetency rule is absolutely necessary, such a rule cannot be enforced.  Here, hypnosis as a memory enhancing device is still largely an unexplored area and it simply cannot be said that testimony gained from it is unreliable.  While a state can devise rules to enhance its probative value, such as requiring proper credentials by those employing it, the state cannot, on a per se basis, exclude all hypnotically-induced testimony.  REVERSED.
- RULE IN MN AND OTHER PLACES:  THERE MUST BE A RECORDING OF A PRIOR TESTIMONY:  ONE WHO HAS THEIR MEMORY REFRESHED BY HYPNOSIS IS NOT ADMISSIBLE IF THERE IS NO PREVIOUS RECORD OF THE EVIDENCE.
- accuracy of information is debatable and the power of suggestion is high and thus mostly not admissible in most cases.

Competency - FRE 601
A. all witnesses are presumed competent if:
1. they have personal knowledge (except for expert witness)
a. personal knowledge “remembered” after hypnosis is admissible.
2. they take an oath or affirmation swearing to tell the truth (except a child may simply explain that they understand the obligation to tell the truth).
B. unless:
1. they are a judge in the case
2. they are a juror in the case - Rule 606
a. juror may only testify outside of the case as to whether any improper outside influence affected any juror.
b. however, judge may question jurors individually outside the presence of other jury members in order to root out improper influence
3. they are a lawyer in the case (not prohibited by rules, but prohibited by ethical standards unless the issue is uncontested).
C. In diversity cases, the state law of competency applies.
1. dead-man’s statute - state law that prevents evidence from being admitted against the deceased’s estate if the deceased could have rebutted it by live testimony were he alive.
a. ex: _ says, “Jim promised to pay me $100, just before he died.”

Tanner v. United States
Facts: Tanner was convicted of a crime. After his trial, the defense
sought to introduce evidence that many members of the jury were drinking
and taking drugs during recesses, and so they were not competent to
return a verdict.
Procedural Posture: The trial judge denied the defendant's motion for
a new trial and for interviewing of the jurors. The defendant claims
that failure to allow evidence of jury misconduct violated his right to
a trial by a competent jury.
Issue: Whether the interviewing of the jurors to determine whether
they were under the influence of alcohol or drugs was a violation of
FRE606(b).
Holding: Yes.
Reasoning: Substance abuse does not fall into the category of
"outside influence" as recited in 606(b). As such, the jury is not
subject to examination, and the verdict is not subject to collateral
attack.
Rule:  Jury testimony cannot be admitted to impeach a verdict.  The only exception is when there is juror testimony regarding improper external influences on a jury can be used to impeach.  However, juror intoxication is not an external influence.  In addition, courts have found “mental incompetence” to be an inside factor and thus not impeachable.

YES
-  newspaper
-  outside information

NO
-  drugs
-  too little sleep
-  too much spicey food

- policy reasons:  to preserve the integrity of the jury system.  It would seriously interupt the finality of the process if a different rule were to be adopted and harm the public's acceptance of the trial by jury system.
 

Rule 606:  Competency of juror as witness.
-  a juror cannot testify in any case in front of the same jury of which they are also a member of
- juror cannot testify to any matter or statement ocurring during the course of the jury's deliberations or ot the effect of anything upon that or any other juror's mind or emotions as influencing the juror to the juror's mental processes in connection with the case   ::::  except, a juror can testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.
 

Problem 6-B: A juror sends a letter to the judge stating that they
disregarded his instruction, and considered the defendant's refusal to
take the stand as an admission of guilt.
Issue: Whether the juror who wrote the letter may be questioned
regarding its content.
Answer: No. FRE 606(b) precludes the testifying of the witness regarding
the mental processes he used in coming to the decision. *** Inquiry into the thought processes are not allowed.

-  IN MN and other places, it is unethical to contact jurors regarding their decision and to investigate their conduct.  (unwritten rule but which is recognized by judicial opinions.)  However, if the juror comes to you, the attorney can talk to the person.
 

Problem 6-C: The jury misinterprets a formula for the calculation of
damages, and returns a verdict for an outrageous amount.
 Issue: Whether the juror's affidavits in regards to the mistake are
admissible.
 Answer: No. However, the judge has the ability to grant a new trial from
the obvious error that the jury made.
 
Problem 6-D: Two jurors do an independent "fact finding" visit to the
accident site.
Issue: Whether the defense attorney may make inquiry of the two jurors
regarding the truth of the report of their misconduct.
Answer: Yes. A visit to the accident site is an "outside influence" that
was "improperly brought to bear" upon the juror.  You can ask them what they found and saw at the accident site, but you cannot ask about what effect it had on their deliberative process and what they told the other jurors.

Problem 6-E: A juror has knows from his own experience about certain
facets of the case, and shares that information with the other jurors.
Issue: Whether the attorneys may question the jury with regard to
whether they were influenced by the one juror's personal knowledge.
Answer: No. Personal knowledge that causes a juror to have a particular
opinion is not an outside influence under 606(b).
 
 

 Problem 6-F: An IRS agent is called to testify that she audited 160
returns made by a certain tax preparer and that 90 to 95 percent of them
had overstated itemized deductions. However, she got this information
for the individuals for whom the returns were prepared.
Issue: Whether the testimony can be received in light of FRE 602's
personal knowledge requirement.
Answer: Yes. Whether an itemized deduction was overstated is the
business of the agent to discover. If the individual can not support the
deduction, then it is overstated. The IRS agent, after conducting the
audit, has personal knowledge of whether the deduction was overstated.
 

Eliciting witness testimony on direct exam.
a)  must establish a person's "personal knowledge" about the witness is going to testify to.
b) can refresh their recollection by using their notes, but can't read the notes because they are an out of court statement and thus subject to the hearsay rule (but we will learn about an exception later)

 Rule 612:  opposing counsel is able to look at documents that witness is using to refresh their recollection.

Leading questons:  questions that encourage a specific answer.  Yes or No usually.
- Non-leading questions are "general questions" that do not illicit a specific answer.

Direct Exam - no leading questions allowed, but there are some exceptions:
1)    When necessary to develop testimony:
a)    very young people
b)    timid, reluctant, or frightened
c)    ignorant, uncomprehending, unresponsive
d)    infirm or mental incapacity
e)    people with language barriers
2)    When witness is uncooperative (hostile witness)
3)    When the rule is more trouble than it is worth (not necessary to question appropriately on non-controversial issues)
4)    When memory seems exhausted (lawyer can “refresh” their recollection by remind the witness of something that the witness said before through an written statement or affidavit or in a deposition) According to Baker v. State, anything can be used to refresh the memory of the witness.

Baker v. State
 Facts: The defendant was arrested as a suspect in a beating. On the
way to the hospital, the police officer transporting the victim took the
victim to identify whether the defendant was involved. There was
evidence in a police report made out by another officer that the victim
stated that the defendant was not one of those who attacked him.
 Procedural Posture: At trial, the defense, on cross-examination of
the officer who took the victim (now dead) to the hospital, attempted to
have the officer testify as to whether the victim had cleared  the
defendant from any wrongdoing. However, since the officer could
not remember, the defense gave him copies of the arresting officer's report
to read in order to refresh his memory. The trial judge prevented the officer
from reading the report, apparently applying the strict standard for the hearsay exception of past recollection recorded (i.e. the testifying officer did
not have personal knowledge because he didn't write the report).
 Issue: Whether a report written by another police officer may be used
by the testifying officer to refresh his memory, even though the
testifying officer may have no personal knowledge of the contents of the
report.
 Holding: Yes.
 Reasoning: The trial judge confused the standard of past recollection
recorded (which requires that the writing be determined to be competent)
with the concept of present recollection revived. In past recollection
recorded, the writing itself is read into evidence. However, with
present recollection revived, it is only a means to jog the memory of
the witness, who is testifying thereafter under oath based on his own
personal memory, not on the contents of the writing. Anything may be
used to jog a memory (songs, smells, writings, etc), subject only to the
discretion of the judge in the interest of proper decorum and avoiding
wasting of time. In this case, the error was clearly prejudicial.

IMPEACHMENT
- evidence used to discredit the credibility of the witnesses.

Substantive evidence vs evidence offered for impeachment purposes.
- who, what, where, when, how, and why = substantive evidence (proving elements of the cause of action. Judge decides the admissibility on 401a and b to apply the exclusionary rules to see if the evidence is relevant and is substantially outweighed by the prejudice over the probative value.
-  impeachment evidence is negative evidence - not offered to establish the elements of the case, but to detract from the adverse party's evidence/ case.  It is given to the juriors so they can evaluate how to weigh the testimony before them.  Impeachment evidence can only be used to access the credibility of the witness.

Impeachment evidence
a) to show bias
b) witness if defected (sensory or mental)
c) prior inconsistent statement to contradict current statement (see application of hearsay rule)
d)  character evidence  (for impeachment purposes) exception to the propensity rule and you can offer evidence like this for the purpose of "impeaching" the evidence.  Can do this through reputation and opinions, as well as bad acts of witness as well as convictions and non-convictions can be introduced.
e)  contradiction:  you can bring in other witness who will contradict the witness. (frequently not impeachment testimony however)

Rule 615:  Exclusion of Witnesses
-  court can order at the request of a party to exclude witnesses so that they cannot hear the testimony of other witnesses.  However, some people cannot be excluded:  1) a person who is party to the action, 2) officer or employee who is designed as its representative, 3) a person who is shown to be “essential to the presentation” of the cause of a party.  (ie. Investigative agents in criminal trials and sometimes expert witnesses)
- when a party violates the court’s order of sequestration, the other party must make a showing of “probable prejudice” or an “abuse of discretion” when the court permits the person to testify.

Problem 7-A:
During trial, the plaintiff obtains an order from the court
excluding all witnesses. However, right before a certain witness is to
be called by the defense, the plaintiff learns that the defense has
(legally) bought trial transcripts. The plaintiff suspects that the
defense read important portions of prior witness' testimony to the key
witness about to be called.
Issue: Whether the court may bar the key witness from testifying on the
ground that sharing of the transcripts violates the court order of
exclusion.
Answer: The court should allow the witness to testify unless the
plaintiff can show by a preponderance that the transcripts were used to
coach the witness. However, an alternate approach would be for the court
to presume prejudice, and let the defense rebut. If the first path is
taken, the court should let the plaintiff ask the witness on cross-
examination whether he was shown the transcripts before he testified.

Impeachment of Witnesses
5 ways to impeach a witness
1) showing that the witness has some bias, animus, motivation, or corruption which might lead him to fabricate or shade his testimony to help or hurt one of the parties (defense has the due process right to show bias, however, court may impose reasonable limits on efforts to show bias and cut off questioning when the point has been made)
2) showing a defect in the witness’s sensory or mental capacity (perception or memory) which undercuts their testimony
3) showing that he is by disposition untruthful (3 ways to do this: a) cross-exam regarding non-conviction misconduct that casts doubt upon their honesty, b)cross-exam regarding his prior convictions or past misconduct, c) provide other testimony from other witnesses that the target witness is untruthful. (character witnesses)
4) showing that the witness has made a prior inconsistent statement
5) contradicting the witness - showing that the target witness is just plain wrong on one or another point in his testimony.
 

US v. Abel (impeachment through bias)
Facts: Abel and two others were arrested for bank robbery. One of his
alleged cohorts, Ehle, pled guilty and promised to testify against Abel
in return for a light sentence.
Procedural Posture: At trial, Abel produced a witness, Mills, who was a cellmate of Ehle in prision, that testified that Ehle had told him that he was going to falsely accuse and frame Abel. The trial court allowed the prosecution to put Ehle back on the stand to testify that Mills, Ehle and Abel were all part of the same secret prison gang whose purpose it was to lie for each other. The court of appeals reversed, holding that the testimony unduly prejudiced the defendant because mere membership in an illegal organization does not have any probative value with regard to veracity.
Issue: Whether the admission of evidence tending to show bias on the
part of a witness is inadmissible if it also tends to show that the
defendant was lying?  NO
Reasoning: The membership of Mills in the prison gang was
sufficiently probative of Mills' possible bias towards Abel to warrant
its admission, and was within the discretion of the trial court. Even
though the rules do not expressly refer to the admissibility of extrinsic
evidence to show bias, this evidence is otherwise covered by 402's
allowance of "relevant" evidence. Proof of bias is relevant, and thus
admissible. Even though the evidence also tended to show that the
defendant and his witness were part of an illegal organization, and thus
probably lying on the stand, it is still admissible for the purpose of
showing bias. Also, even though membership is not sufficient to convict,
it is sufficiently probative to be relevant. The trial court took
sufficient steps to limit its prejudicial value.
Rule:  Evidence which is sufficiently probative of a witness’ possible bias for or against a party warrants its admission into evidence.  Any evidence which reasonably could show an inclination towards slanting the facts for or against a particular party is almost always relevant.  The objection to such evidence properly falls within the argument that such evidence is so inflammatory, or so likely to mislead or confuse the jury, that its probative value is outweighed by the prejudicial impact.  In this case, the court found that the probative value of the evidence clearly outweighed its prejudicial impact and therefore admitted the evidence.

MN: has a specific evidence rule that show that bias testimony is able to come in.........  See handout. Rule 616.
 
Problem 8-A:
General Motors hires an expert witness to testify in a
product liability suit. On direct, the defense brings out the fact that
they are paying him $400 per day. On cross, the plaintiff wishes to go
into further detail about the total of payments, and how much the expert
witness relies on these payments for his living.
Issue: Whether the further inquiry into the total of payments is
admissible.
Answer: Yes. It is probative on the issue of bias. It gives the jury an
idea of the significance of the payments.
 

Sensory and mental capacity
- cross-examiner may raise issues of a witness' eyesight, drug influence, alcohol, memory, etc.  Can always question whether one had the "capacity" to give their eyewitness testimony and whether that info is accurate.

Character for Truth and Veracity
3 means of proving untruthfulness:
1)    cross-exam on non-conviction misconduct
2)    cross-exam on convictions
3)    use of character witnesses

404:  generally bars the use of character evidence to prove conduct outside of court.  Showing that a person is untruthful involves character evidence to show a particular kind of conduct in court - lying on the witness stand, and FRE 404(a)(3) makes an exception permitting this strategy.  FRE 608 and 609 authorize and regulate this means of attack.
-  Under FRE 404: a party may lose much of the protection if he decided to testify on their own behalf, because it opens him up to impeachment testimony.  However, the attack must focus upon traits relating to “veracity” and not the propensity to do the crime.  (Example: in murder trial, the prosecutor may try to suggest that D is “dishonest,” but not that he is “violent.”)
- specific instances may be brought into evidence that show a person’s misconduct that seem to bear on their veracity.  (like previous acts of fraud, lying, bribery, etc.)  Most modern cases disapprove of cross-exam concerning behavior that does not directly involve lies or deception.  Thus, questions regarding drug use, violence, or sexual relationships is generally disapproved, although occasionally such points come out in attacks that show bias or motivation on the part of the witness.
- under 608(b) specific bad acts can be introduced on direct to access a witness's credibility (only those acts which are probative of truthfulness or untruthfulness are admissible).
-  lawyer must have good faith basis for questioning the witness regarding any activity concerning a person's credibility.
-  there are limitations:  you must ask the question of the witness about what bad acts they have participated in.  You may not establish the veracity and truth by "extrinsic" evidence.  (Example,  you have copies of false tax forms - you can ask them questions about them, but if the person denies making the false tax forms, then you are not entitled to disprove their answer by bringing the documents in or by bringing the IRS in [this is collateral and extrinsic evidence].

Simmons v. Pinkerton’s Inc.
Facts:  Simmons hired a security guard, Hayne, through Pinkerton. A fire
started when the guard was on duty.
Procedural Posture: Simmons brought a negligence case against
Pinkerton. At trial and on cross-exam, Simmons asked the guard, Hayne, whether he had lied to his superiors about taking and passing a lie detector test, and the guard admitted that he had lied.
Issue: May counsel question, on cross-exam, whether a witness lied about having taken or passed a polygraph test?  YES
Reasoning: Most jurisdictions do not permit evidence of polygraph tests under the collateral evidence rule.  However, the collateral evidence rule does not limit the scope of all types of impeachment by cross-examination, it merely precludes extrinsic evidence being admitted to impeach by contradiction. Because the veracity of a witness is always an important consideration, the witness may be cross-examined with respect to whether he has lied. Rule 608(b) allows cross examination of a witness about specific instances of her past conduct, if probative on truthfulness, but prohibits proof by extrinsic evidence. Here, the guard admitted lying. Had he not done so, the plaintiff could not have brought in extrinsic evidence to prove that he had.
RULE:  you can ask about previous acts of "lying," as the court allowed here as long as attorney has a good faith basis.  If the D denies lying, the opposing party may not introduce the evidence to refute their denial.  608b: you are stuck with the witnesses' answer.

Impeachment based on Prior Convictions
FRE 609 controls here.

Prior Convictions on cross?  YES
-  Cross-examiner may ask about 1) convictions for crimes punishable by death or imprisonment for more than 1 year for criminal defendants and for witnesses other than criminal defendant, the admissibility of such convictions is subject to FRE 403, and such convictions can be used to impeach a criminal defendant only where their probative value outweighs their prejudicial effect to the defendant, 2) convictions for either felonies or misdemeanors involving dishonest or false statement.  There is a 10 year time limit.  Also, pardons, annulments, and juvenile adjudications are generally inadmissible.  It does not matter, however, if the matter is currently under appeal.

Rule condensed:  Evidence of an witness' prior convictions may be used to impeach if:
                1. conviction is of a crime involving dishonesty or false statement is  admissible.
                2. conviction of a crime punishable by death or imprisonment for greater than one year subject to Rule 403 (presumption of prejudice), unless the conviction or release (later) was within the past ten years or the probative value outweighs the prejudice.

Note:  generally the impeaching party is allowed to bring out only the fact of the prior conviction, the date, and the type of crime, but not the underlying details of its commission.

Class Notes:  crimes involving dishonesty, false statement = these are sufficiently probative enough to always be admissible.  However, regular felony grade crimes (like murder, manslaughter, assault, etc) will come in only if the probative value outweighs the prejudicial effect.   609 sets up a balancing test:
- if witness is the accused = you admit only if the probative value is greater than the prejudice.  In a close case, you always exclude the evidence.
- if the witness is someone other than the accused =  you apply rule 403 which states that you admit unless the probative value is substantially outweighed by the prejudice.  In a close case, you admit the evidence.

United States v. Lipscomb
Facts: Lipscomb was charged with possession of heroine.
Procedural Posture: At his first trial, Lipscomb testified and had
been impeached by cross-examination concerning his conviction for
robbery eight years earlier. The court held that a person who would commit an armed robbery would also lie under oath, and therefore found its impeachment value sufficiently probative to outweigh the prejudicial effect.  A second trial was held following the D’s conviction, and he was convicted again.  D appeals contending that the trial court erred in admitting the prior felony conviction without undertaking an extensive review of the underlying facts to determine whether or not is probative value outweighed its prejudicial effect.
Issue: Whether it was proper under FRE 609 to allow cross-examination
of the defendant and the witnesses with regard to their prior
convictions. Holding: Yes.
Reasoning: Rule 609(a)(1) requires a balancing of the probative value
against the prejudicial value of prior conviction evidence of the
defendant himself, but only requires that the witnesses prior crime be
punishable by more than 1yr in prison. Any prior crime of untruthfulness may be admitted. ***Also, in contrasting with 609(b), which requires specific inquiry by the judge into the underlying facts, 609(a)(1) does not
require such an inquiry. Thus, the judge has the discretion to
determine how far to investigate a prior conviction in performing the
balancing of probativeness vs. prejudice. As such, the judge may allow
this evidence.

Some Factors to apply the balancing tests between the probative worth and unfair prejudice as in the Gordon case.
1)    nature of the conviction
2)    its recency or remoteness
3)    whether it is similar to the charged offense
4)    whether D’s record is otherwise clean
5)    the importance of credibility issues
6)    the importance of getting the D’s own testimony.
 

Problem 8-B: Dennet is arrested for a bank robbery. He has a prior
robbery conviction. The prime witness for the defense, and the prime
witness for the prosecution both have prior robbery convictions.
Issue: Whether evidence of the prior convictions should be allowed as to
each witness and the defendant.
Answer: Rule 609 provides that prior conviction for impeachment of a
witness is admissible subject to Rule 403, as long as it was punishable
by >1 yr imprisonment. So the prior conviction of each of the witnesses
should be allowed unless its probative value is "substantially
outweighed" by its prejudicial effect (Rule 403).
-  Elmo and Farr = no great prejudicial effect, but the prior conviction of the defense witness Farr is probably subject to more careful balancing than that of the prosecution’s witness Elmo.
-  Dennett = Rule 609 states that the probative value must "outweigh" the prejudicial effect. As such, the balancing standard is higher. Since the prior conviction was so similar to the present charge, there is great danger of
prejudice. Thus, it should probably stay out.
 
Problem 8-C
Pratt sues Denko for personal injury damages from a car
accident. After Pratt testifies, Denko seeks to impeach him by bringing
out prior felony convictions for manslaughter and forgery.
Issue: Whether the evidence of the prior convictions is admissible in
either case.
Answer: Only for the forgery. Rule 609(a)(2) provides that crimes
involving dishonesty or false statement are admissible, regardless of
the punishment. However, since a prior manslaughter conviction is
probably excludable under Rule 403 as the prejudicial effect "substantially outweighs" the probative value.
Notes:  crimes like perjury, fraud, and forgery are likely to be admitted, however crimes involving violence, prostitution, drunkenness, and drugs are not.  Most courts also exclude the crime of “theft,” however, if the facts surrounding the theft crimes clearly do involve dishonesty or false statement, most courts have said that the facts do count.  Courts can look at the facts surrounding the conviction to determine if it should be admitted.  However, the court does not have any discretion in not letting in evidence per 609a2 which is evidence of a crime involving dishonesty or false statement, regardless of the punishment.  (the judge must always allow such evidence in)  Dishonest crimes are = perjury, false statement, embezzlements, fraud, false pretense, falsification, etc. according to conference reports on the rule.

Problem 8-D:
Durston is charged with assault, and testifies to an uncorroborated alibi at trial.
Issue: Whether any of his 5 prior convictions should be admissible.
Answer:
1. recent falsifying of motel register - Yes. 609(a)(2) dishonesty.
2. recent drug sale - No. 609(a)(1) not probative on veracity.
3. recent conviction for larceny - Depends on underlying facts, but may be  probative on veracity 609(a)(1).
4. first degree armed assault - No. 609(a)(1) great danger of prejudice, very little  probative value on veracity.
5. forging a bank application, released from prison >10 years ago - No. 609(b) time  limit. But, depends on underlying facts, may be admissible if, "in the interest  of justice," probative value "substantially" outweighs prejudice.

****  According to the time limit, NOT 10 years from conviction, but 10 years from release.
 
Problem 8-E:
Allen is charged with a burglary, and testifies that he did
not do it. The prosecutor attempts to bring out specific instances of
lying on a tax return under 608(b). However, since these prior acts
resulted in a conviction, the defense wants to limit the inquiry on
cross-examination only to the fact that he had a prior conviction.
Issue: Whether the underlying acts which lead to a prior conviction may
be admissible in cross-examination of the defendant when the acts are
probative on truthfulness, and the prosecutor does not mention the
conviction.
Answer: The underlying acts are probative on truthfulness, but only
minimally so because most people cheat on their taxes. If the prosecutor
is allowed to ask them on cross under 608(b), then he can not introduce
any extrinsic evidence of them, or of the subsequent conviction because
608(b) bars use of extrinsic evidence to impeach as to specific
instances.
- 608b vs 609**** be clear the difference!
- 608b should be limited to those acts that do not result in criminal convictions, and 609 should be reserved for just convictions (thus, only specific and limited details of the conviction can come in.  Otherwise, under 608b, the prosecutor can ask about previous misconduct and specific instances, but if the D denied the acts, the prosecutor is not allow to present extrinsic evidence.  However, if D denied a conviction, the prosecutor is able to introduce the criminal record to rebut.  However, in general, a prosecutor cannot ask questions about a conviction, only about previous bad acts and not convictions.
- as in general, juvenile convictions are treated differently.  You cannot use ask about specific acts of bad conduct or about the juvenile criminal record.

Luce v. United States
Facts: Luce was charged with the federal crime of possession of drugs
with intent to sell and conspiracy. He had a prior state conviction of possession of a controlled substance.
Procedural Posture: Before trial, Luce made a motion in limine to
preclude the government from using the evidence of the prior conviction (possession of a controlled substance) to impeach him, should he take the stand. However, he made no commitment to take the stand, nor did he reveal what his testimony might be should he take the stand. The motion was denied, and Luce did not take the stand. Luce was then convicted, and he appeals citing error in denying the motion in limine.
Issue: Whether a defendant who does not testify in a federal criminal
case is entitled to review of an adverse ruling on a motion in limine to
exclude evidence of prior convictions under FRE 609(a).
Holding: No.
Reasoning: If the defendant would have testified, he would be
entitled to review. However, since he did not testify, it is only
speculation whether he would have been prejudiced by the impeachment.
There is no way to tell whether he decided not to testify because of the
prior conviction, or for some other reason. Also, there is no way to
tell what his testimony would have been. Also, there is no way to tell
whether the government would have used the prior conviction to impeach
him. Lastly, there is no way to tell whether the judge would have
changed his ruling on the motion during the course of the trial. There
is simply not enough factual background in order to review such a case.
Thus, the criminal defendant must testify in order to let the trial
develop.
- however, in most states, you are able to get a pretrial motion asking for the information here that is not allowed in the federal courts.  This rule only applies to federal courts.

Rule 608: it would appear that an expert could testify regarding the truth of a person, but courts do not allow the "vouching" of a testimony by an expert.  Experts cannot show that someone is a "pathological liar," etc.
- sometimes the evidence does "sneak" in when experts give testimony on various syndromes liked "battered wife" syndrome.  You see this in particular child abuse cases.
 

Specific Impeachment

Hearsay Rule:  (When you have hearsay testimony)
1)  an out of court statement
2)  offered to prove the truth of the statement asserted.
 (Ok to offer evidence to impeach because the statement is offered to prove that the witness lacks credibility not to prove the truth of the statement asserted)  In other words, the out of court statement does not pass the 2nd prong.

Rule 613
- can impeach thru cross-exam by asking witness about the prior inconsistent statement.  (Do not have to show the witness the statement before the witness has to answer the question - in other words, allows for the witness to be suprised.) No foundation is required to alert the witness about a prior inconsistent statement.
- you are permitted to introduce through extrinsic evidence of prior inconsistent statements - but you have to give the witness an opportunity to respond or give the opposing party the right to interrogate the witness.

Rule 607
-  the credibility of a witness may be attacked by any party, including the party calling the witness. (rejectes common law approach that you can't go against you witness unless there was suprise because of the theory that the lawyer presenting the witness actually vouches for the witness.

Problem 8-F:
Welch testifies on direct that Plimpton's attack on Dirk was unprovoked. During cross-examination, adverse counsel makes no inquiry into any prior statements. Welch is then dismissed. Adverse counsel then calls a police officer to testify that Welch told him that the attack may have been provoked. [note, this is not hearsay because it is not dependent on the truth of the matter asserted. It does not matter whether the attacked was provoked. The evidence of the prior inconsistent statement is being used to discredit the witness, and it is only being offered to show that it is inconsistent, not that it is true.]
Issue: Whether counsel may bring up a prior inconsistent statement of a
witness for the first time on direct examination of another witness.
Answer: Yes. 613(b) allows extrinsic evidence [here, the police
officer's testimony] of a prior inconsistent statement at any time, as
long as the witness is afforded an opportunity to explain or deny it, or
if the interests of justice otherwise require. Unless Welch is
permanently gone, the police officer's testimony should be allowed.

United States v. Webster
Facts: Webster was charged with robbing a bank. King pled guilty to the crime, and made statements to an FBI agent that Webster was involved.
Procedural Posture: At trial, the prosecution called King to testify,
and he denied that Webster was involved. The prosecution then put the
FBI agent on to impeach King with the prior statement [which also tended
to show that Webster was guilty - a hearsay prohibited purpose]. Webster
was convicted and appeals the ruling allowing the prosecution to call
King because the sole purpose appeared to be putting him on in order to
bring in the otherwise inadmissible hearsay statements as impeachment.
Issue: Whether a prosecutor may impeach a witness in good faith if
the witness' prior inconsistent statement would otherwise be prohibited
hearsay.
Holding: Yes.
Reasoning: It would be an abuse of FRE 607 for a prosecutor to call a
witness that it knew would not give it useful evidence, just so it could
introduce otherwise hearsay evidence for the non-hearsay purpose of
impeachment. However, here the prosecution offered in good faith to voir
dire King outside the presence of the jury, and the defense refused. The
defendant still has the opportunity to argue that the impeaching
statement be excluded under 403 because of the jury's inability to
ignore its substantive use, and use it only for impeachment purposes.
- most courts use this analysis as a "good faith" analysis for the lawyer who brings the witness.

Harris v. New York
Facts: Harris was arrested for possession and sale of heroin. An
undercover officer made the arrest when Harris bought for him. At the
police station, before they read Harris his Miranda warning, Harris made
incriminating statements that he had sold heroin to the officer on 2 occasions.
Procedural Posture:  At trial, Harris took the stand on his own behlf and testified that all he had sold was baking powder in an attempt to defraud the purchaser.  He stated that previously submitted evidence showing that the substance had been heroin had been “cooked up” to frame him.  On cross, exam, the prosecution asked him if he had made certain statements during interrogation by the police showing that the bag contained heroin.  These statements were not introduced by the prosecution and was obtained without properly Mirandizing Harris.  At trial, the trial judge ruled the prior
inconsistent statements inadmissible for the prosecution's case in chief
as being clearly unconstitutional. When the prosecution stated that they were being used solely for impeachment purposes, the questions were allowed and Harris was subsequently convicted.
Issue: Whether prior inconsistent statements made before the giving
of a Miranda warning are admissible for the purpose of impeaching the
defendant.
Holding: Yes.
Majority Reasoning: To prohibit the prosecution from impeaching the defendant with otherwise inadmissible statements is to take away a prime method of ensuring his truthfulness on the stand. The defendant does not have the right to use the failure of the Miranda warning to his advantage by perjuring himself. The court properly admitted the evidence and game adequate limiting instructions on the fact that it was only to be considered for impeachment purposes.  The conviction is affirmed.
Dissent Reasoning: The statements allowed in this case were too
prejudicial because they were directly implicating of guilt. It is
unfair for the prosecution to be able to use uncounseled statements
against the defendant in cross examination that they have illegally
obtained and therefore can not use in their case in chief. This
effectively denies the defendant the right to testify on his own behalf
because he can not be free from the prejudice of the uncounseled
statements. It also cuts away at the deterrence of police officers to
conduct legal interrogations.
- Professor thinks this case should have been put in another type of class - so is not too important to remember.
 

Impeachment  (overview)
- Bias
- Defect in capacity
- Character (truth and veracity)
 - Bad acts
  1)  609: convictions
  2)  608 B:  non-convictions
 - Reputation / Opinion
 - Prior inconsistent Statement
 - Contradiction

CONTRADICTION
- evidence of contradiction is offered for both impeachment and for substantive issues of the case.
- in general, you can introduce contradictory evidence if it offers some "contributory value" other than mere contradiction.  You cannot try to impeach a witness on issues that are collateral to the litigation.  If it goes to substantive issues of the case, that is ok to introduce evidence.
- to make the issues "substantive," you have to link up the issues to the material issues of the case - must make a persuasive point.

Problem 8-G:
-  The police officer's testimony is collateral because there is no substantive issue of where Oswald was before the robbery.
-  The waiter's testimony is substantive (and not collateral) if he worked on the night in question.

Note 2(a) : wife who is being charged with a murder of her husband calls an expert who relays the "battered wife syndrome."  Is prosecution allow to bring in evidence of when she threatened injury to a trespasser and a neighbor?  Page 660.  Also, in B the Bobbie Beavers case.  Court allowed the evidence to come in because the D raised the issue of the reasons for his resignation.