Evidence Notes（证据法学英文原版）

Evidence 011812

pp. 1-16; GF Supp. Review Rule 606

Why put limits on the information that juries hear? Trials have to end, so pointless, bloated, or repetitive evidence must be restricted; Constitutional concerns; societal value of maintaining privacy of certain relations; and achieving the right result.

Faith in juries’ fact-finding powers is not uniform. There is great and arguably unjustified faith in the power to determine the truth of witness testimony and reliability, while on the other end of the spectrum we worry autopsy photos may unreasonably impassion juries to convict regardless of guilt. We forbid evidence of past behavior and don’t trust juries not to be mislead by expert witnesses without using the judge as a gatekeeper.

Despite inconstant themes and motivations behind the rules it is not hard to organize them loosely by function. Rules of relevance, rules of reliability and privileges make up the three broad categories.

Three Themes to Remember:

1. Rules support the truth-telling function of the trial but do carve out exceptions.

2. Rules often involve a balancing of concerns.

-Trust in jurors to assess evidence vs. skepticism with use of jurors -Privileges protecting information vs. “liberal thrust of the rules”

3. Rules often prejudge the reliability of the evidence, so jury only hears what is appropriate for them to consider.

Essential Practical Points to Know:

*Applicability:

-Rules apply in federal court (FRE 101), with few exceptions (FRE 1101(d)), in civil and criminal cases. *Adoption -Rules by Congress, effective in 1975 -Many states have adopted these since then, very similar if not identical -RESULT: older cases, state cases help interpret FRE *Interpretation Sources: several areas to look: -Language: plain language statutory interpretation

-Legislative history: Senate/House reports, Advisory Committee notes (note: disagreements on this source; Scalia)

“Restyled Rules” of 2011: what effect does this have? Intended to make them clearer and easier to read; reduce use of inconsistent terms; minimize ambiguous words

Did this change the meaning of the rules? Advisory Committee made it very clear the changes were intended to have NO substantive effect.

Effect: “While the rule changes were intended to have no substantive effect, the new language may have inadvertently changed the meaning of the rules from their pre=2011 interpretation. Until a case is decided to the contrary, however, the meaning will be presumed to be the same.”

Tanner v. United States: Tanner is convicted of mail fraud. One juror alleges that jurors used alcohol at trial. The trial court rejects motion to interview jurors per FRE 606. Another juror comes forward and offers to sign an affidavit stating that jurors were drinking, sleeping, using cocaine, and a sale of marijuana took place during the trial. The trial court denied the motion for a new trial.

Argue on appeal that 606(b) does not bar juror testimony on ingestion of drugs during trial, and whether or not authorized by 606(b), an evidentiary hearing is compelled by petitioner’s Sixth Amendment right to trial by competent jury.

Issue #2: Dothe Rules allow juror examination?

Rule 606(b): During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about [deliberations, etc.] (2) Exceptions. A juror may testify about whether:

(A) Extraneous prejudicial information was improperly brought to the jury’s

attention;

(B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form

“Outside Influences”: Bailiff comments, bribe to juror, newspapers, and juror application to DA office.

Is the exception for “outside influences” appropriate here?

MAJ examines: 1) common law; 2) policy considerations; and 3) legislative history of Rule.

Held: All sources support the conclusion that the court could not inquire into the juror misconduct. Trial court verdict affirmed.

Marshall Dissent: Argues that drugs and alcohol constitute an outside influence (common law), this situation falls outside the policy goal of protecting the sanctity of deliberations, and the legislative history is consistent with determining this to be part of the exceptions.

Issue of Trust v. Truth. Final points: Deliberations will be kept private, post-verdict. Exception: Equal protection challenges: Wright (1983).

Because private, challenges to verdict difficult it is CRITICAL to manage what jury sees/hears.

Result: Rules of Evidence provide the framework for what the jury does/does not access.

Documentary: Brother’s Keeper

Madison County, New York. Documentary from 1992, will revisit during the semester.

Role: Defense Attorney. What do I find objectionable in this piece of evidence.

Deceased: William. Defendant: Delbart. Others = Roscoe, Lyman (key witness)

Question of whether the brother’s death was natural or whether it was what seemed from the evidence to be a “mercy killing.” The neighbors all thought that Delbart was innocent and put a lot of store in the fact that Delbart was questioned without an attorneyhad waived his rights, but that he didn’t understand what rights he had waived even after the fact.

Prosecutors: Timing of death issue. Basis of knowledge issue, because the witnesses heard the time of death form the newspaper; hearsay.

Relevance of police investigator’s wanting to buy the farm. Rules 401, 402.Length of the chain of inferences necessary to arrive at the desired conclusion.

Neighbor says the body was cool, not cold. Not a doctor, cannot tell the time of death. Rule 702. Maybe farmers would know the temperature of an animal after death. Lay-opinion expertise Rule 701.

Local person says not the type of person to do this sort of thing. Character evidence Rule 404, 405.

Logical Relevance and Conditional Releveance pp. 18-38; FRE 401, 402 and 104

Relevancy does not exist as an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be proved. If an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition.

An offered item of evidence may be excluded as irrelevant for either of these two reasons: because it is not probative of the proposition at which it is directed, or because that proposition is not provable in this case.

Rule 402: Relevant = Admissable

“All relevant evidence is admissible, except as otherwise provided by the

Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”

Rule 401: Relevance

“”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.”

Key point: Evidence with ANY tendency to make the fact more or less probable is relevant.

Related to the idea of relevance isthe idea of probativeness.

Probativeness: The degree to which an item of evidence tends to prove a certain conclusion.

Materiality: Whether an item of evidence has some logical connection to a fact of consequence to the outcome of a case. If statute says that something is irrelevant, it is immaterial (e.g. drunkenness immaterial where voluntary intoxication is not a defense).

U.S. v. Abel (Problem 1.2):

? W testifies about Ehle statement, asked about gang membership ? What FACT does this help prove?

W Mills in in a gang in prison (leads to W Mills is lying)

? As D.A., why would that EVID be material (and relevant)?

1. W belongs in gang, and so shows bias of the W for other gang members, lies to help out the D

2. Witness involved in gang that believes lying is a method to achieve their goals, so lying here

EITHER WAY: Ehle’s testimony more likely to be true

? Is this admissible under Rules 401 & 402?

? RESULT: testimony is probative of a fact - membership in the gang/lying – that makes guilt of D more likely. RELEVANT!

U.S. v. Scheffer (Problem 1.3):

? D charged with murder, takes polygraph

NOTE: results of the test will not be admitted

? E: polygraph examiner testifying D willing to test ? D/C: what fact is this probative of?

FACT: D has consciousness of innocence

? Is that fact material to the case?

If conscious of innocence, more likely actually innocent of the charges

Minimal probative value, but under the rules minimal is allowed, so under 401/402, RELEVANT

Actually admitted? We’ll discuss other tests later in class

? Problem 1.4: “Knowledge” (23)

? Elements of crime require D convicted of a felony

? E: D states she didn’t know the crime was punishable by up to 2.5 years in prison ? Probative?

YES: D unaware of sentence of 2.5 possible for that crime

? Material?

NO: why not?

notmaterialto the case whether the D knew, because knowledge of the crime status is not an element whether or not she knew, D can be guilty.

Materiality related to the SUBSTANTIVE LAW of case

? Montana v. Egelhoff, USSC 1996 (24)(Prob. 1.5) ? Murder charge, D in back seat with BAC of 0.36 (!) ? E: level of intoxication of the D

? D/C: probative of mental state at the time of events ? D.A. Objection?

Even if probative, not material under MT law

? How should the court rule?

HELD: under Montana law, voluntary intoxication NOT a defense, so doesn’t address fact at issue

the intoxication is immaterial to the charges IRRELEVANT!

? U.S. v. James, 9th Cir 1999 (25)

? Manslaughter charge, D and V in violent relationship ? V told D he had killed someone, robbed man with knife ? E: court record shows robbery did occur ? TC: excluded evidence as irrelevant ? Probative?

YES: that the events did actually occur

? Material?

TC: NO, because the actual events not important, only belief

9th Cir: disagrees: did happen = more likely V told D = ADMIT

? RELEVANT; conviction overturned.

? Sherrod v. Berry, 7th Cir 1988 (Prob 1.6) (30)

? E: the fact that violin case held money, not a weapon ? As counsel (D.A. or P.D.) – why material (or not)? ? Which side is the right one? ? VOTE!

? 7th Cir (1988) HELD: evidence inadmissible because reasonable fear unrelated to the contents.

Like TC in James case ? BUT: dissent : if violin case empty, less likely actually raised it = self-defense claim weak and implies D is lying.

Closer to MAJ in James(9th Cir. 1999), Persuades Fisher

Conditional Relevance:

Rule 104(B): Relevance Conditional on Fact. “When the relevancy of 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.”

? EXAMPLES:

? Spoken Statement not relevant UNLESS D heard it ? Letter is an admission ONLY if the D wrote it

? Cox v. State, Indiana 1998 (32) ? Murder charge, D shot V, claim of retaliation

? E: the bond hearing events 4 days prior to the murder ? Conditional b/c only relevant if D knew about the hearing ? TC: admit, based on reasonability of assumption to know ? HELD:

? Under Rule 104(b), E admitted if judge says enough E for a reasonable jury to make the finding on facts before it by a preponderance of the evidence. Beechum (33) ? VERY low standard to admit for 104(b)

? RESULT: Reas. jury could find this fact, so ADMIT

Judge must determine whether a reasonable jury can possibly make the finding before admitting evidence.

Both standards 401 and 104(B) are very low thresholds to pass.

Next class: Balancing relevance and prejudice. Testing positive for marijuana is relevant to whether a driver was negligent or not, but a test only shows that they smoked within a very long period of time so the probative value is relatively small, and the evidence is very prejudicial against the party.

Probativeness and Unfair Prejudice p. 38-61

FRE 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.”

? The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following:

? Unfair prejudice; ? Confusing the issues, ? Misleading the jury,

? Undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule of general applicability. Pro-admission.

Must first determine how much probative value a piece of evidence has, then determine whether that value is substantially outweighed by the other considerations.

Decisions are committed to the trial judge’s discretion and are reviewable on appeal only for abuse of discretion.

Surprise is not a reason to exclude evidence, can deal with it through a continuance.

State v. Bocharski: Woman living in trailer is stabbed and killed and her neighbor at the next site is convicted of her murder. Six gruesome photographs of decedents already beginning to decompose body were admitted into evidence. Bocharski argues on appeal that the photographs prejudicial effect substantially outweighed their probative value. The court opens saying that photos of a homicide victims body are generally admissible because “the fact and cause of the death are always relevant in a murder case.”

Court of Appeals shows concern about admission of two photographs showing the opened skull with a metal rod going through to the inside. The state did not elicit testimony regarding the angle of the wounds or a possible murder weapon, and thus the pictures only met the bare minimum standard of relevance. The court concludes that the error did not affect the juries decision because they chose a lower murder

charge than was available to them and showed no sign of particular disgust or prejudice to those two images compared to the others.

State does not have to prosecute a murder case in a sterile environment; murders are grisly, so some degree of disturbing evidence will accompany a murder trial.

Concurrance: The only issue should have been whether there was an abuse of discretion, absent egregious error; an appellate court should not disturb a trial judge’s Rule 403 ruling.

? COURT:

? Overturned only if TC shows “abuse of discretion” ? First 4: OK to admit, cannot try case in “sterile setting” ? Last 2: Admissible? D.A. or PD argument?

? HELD: last 2 admitted in error, “inflame the jury”

? BUT, error is harmless, so no new trial

? CONC: “murder is a grisly business” – don’t be paternalistic

? People v. Jones, Video Clip 4

? E: photos of the child victim of the murder ? D.A.?

? Shows revenge motive, consistent with theory of death

? DEFENSE RESPONSE?

? Limited probative value, highly inflammatory

? Also: “alternate means”: AC note says availability of other evidence may be considered on prejudice (RB45)

? How should the court rule? ? HELD: inadmissible

? NOTE: practice note: get a ruling on major evidence BEFORE 24 hours before trial!

Problem 1.8: Possession of unregistered machine gun case. DA wants to submit photo which shows the gun at a distance with many other weapons (some belonged to defendant some belonged to another individual). Probative value minimal,

prejudice very severe. On appeal the circuit court concluded that admission was an abuse of discretion.

? “only inference of photo” was that D had a stockpile of weapons and was dangerous.

? Admission in ERROR, even with TC discretion

Commonwealth v Serge: State wants a computer-graphic animation demonstrating the theory of the shooting formulated by their expert witnesses to be admitted to evidence. Defense protests that the animation is prejudicial and full of small

prejudicial animation choices, which are not supported by the evidence or opinions of the experts. The court concludes that the relevance lays in the concise, clear

depiction of the Commonwealth’s theory and an interest in the inclusion of new technology in the courtroom provided that they don’t overly prejudice the process. The Court holds that it was not inflammatory or unfairly prejudicial, it did not

include sounds, facial expressions or evocative movements. Appellants additionally argue that the formulation of the CGA was expensive, costing between 10,000 and 20,000 dollars and an indigent defendant cannot be expected to be able to counter with similar evidence given the financial burden.

Also argues that a motion picture projection creates a prejudicial assumption of validity in the minds of the jury. In effect, it is too persuasive. Court concludes that the disclaimers before the CGA was shown was sufficient to dispel the presumption of validity, it was an illustration of the opinions of the witnesses; it was “like all other evidence, you may accept or reject it… in whole or in part…” Such cautionary instruction is found to limit the prejudice or confusion that could surround a CGA.

? Murder charge, D claims self-defense

? E: computer-generated animation of the crime

? TC: admitted CGA after pre-trial disclosure, instruction ? D/C: CGA inadmissible: inaccurate, unfair, jury effect ? HELD:

? #1: accuracy: W’s had to authenticate the CGA before admitted ? #2: cost: no right to rebuttal CGA, but appropriate to consider ? #3: persuasion: TC instruction aided jury on right inference

Evidence of Flight

United States v. Myers: ? Bank robbery trial, D seen several times after robbery ? E: 2 instances of flight of D, 1 in FL and 1 in CA

Two instances of flight of defendant, one in Florida and 1 in California. Relevance of flight is based on 4 inferences:

1) Defendant’s behavior is flight 2) Flight is consciousness of guilt

3) Consciousness of guilt is for this crime

4) Consciousness of guilt for this crime means actual guilt. Can admit to show guilt as admission by conduct. Ballard (56)

? FL “flight”: flight more probative when instinctive/close in time ? CA “flight”: may not be “flight,” (#1),even if so, fails on #3 as well

If the flight is immediately after the crime, the inference is stronger.

? People v. Cutchall, Mich. 1993 (59) (Prob. 1.9) ? D leaves scene of crime, says he did so because of priors ? Admissible?

? Defense: inference #3: consciousness of guilt for this crime

Rule Review:

? Rule 403:

? Rule of general applicability

? Requires probat. value be SUBSTANTIALLY outweighed

? Photos/other evid: D.A. will get some leeway, as murder case cannot be tried in a sterile setting

? Depends on the level, type of prejudice

? NOTE: limiting instructions also help save cases

? Flight: admissible through chain of inferences ? Will be inadmissible if chain of inferences broken – Myers

The rule is pro-admissability, where it seems to be close, evidence will likely be admissible.

Probability p. 61-89

? General Principles: coin flip example

? Prob. of 1 flip landing H or T: ? (50%)

? Prob of 2 both H/both T: ? (25%, HH, HT, TH, TT) ? 8 flips, all H or all T: 1/256 (0.39%) ? Why true?

○ 1. certain of probability of potential outcomes

○ 2. limited scope of results: H or T, no other options ○ 3. each flip independent of the next

? Also works for 6-sided dice, etc, so long as independent probabilities, can use Product Rule

? People v. Collins, Cal. 1968 (61) ? D charged with robbery of purse 11:30 am, 6/18/64

? W’s: V saw woman (description), Bass saw driver, woman as well, Janet’s employer told work hours

? D.A.: case weak, call professor! Probability of events:

? Partly yellow car: 1/10 ? Man w/mustache: 1/4 ? Girl with ponytail: 1/10 ? Blonde woman: 1/3

? DA: let the jury decide, won’t punish D for robbery

? How should the court rule? ? HELD:

? Affirmed admission of the evidence

? Probative value low, but not substantially outweighed ? Remember, 403 is PRO-admission!

? ALSO NOTE: if robbery not enough prejudice, then next case (Problem 1.10 – Johnson) also not enough.

?

? ? ? ?

? “Negro man with beard”: 1/10 ? Interracial couple in car: 1/1000

? RESULT: DA says product rule tells us a 1/12,000,000 chance that a couple possessed these characteristics of the D’s

D/C objections: 1) Data flawed, 2) Jury role: TC admits

? #1: DATA: why flawed?

? 1. no evidence of foundation for these probabilities

? “never even attempted to lay foundation” ? 2. no evidence each was separate of the others ? RESULT: “wild conjecture” only, so EXCLUDE!

? #2: Jury role:

? “gravely misguided” as it distorted jury role, results in substantial unfairness, and a miscarriage of justice

? HELD: conviction overturned!

? rejects the method employed in this case Issues to mention:

1. Not ALL math bad, just THIS math:

? “intend no general disapproval…of the latter as an auxiliary of the factfinding process of the former”

2. Rule 401 relevance: standard is ANY tendency

? Even with flaws, seems to meet the test

? Usually minimally relevant = admit, subject to cross-exam 3. IF SO, WHY EXCLUDED?

? minimal relevance outweighed by disproportionate weight by the jury, lack of foundation: acts like a 403 exclusion

? NOTE: DNA evidence essentially probability math, and allowed. Nelson, Cal 2008 (page 74)

Other Misleading Evidence

? Presumed Innocent; Video Clip 8

? D (Harrison Ford) charged w/Murder. You are D/C

? Witness will be the man in hallway

? D confesses (!) to murder. ? Relevant?

? D/C objection?

? Misleading

? “Undue Weight”

? D.A response? Let the JURY decide ? Should the judge ADMIT or EXCLUDE?

? NOTE: usual method for weak evidence to fail is by cross, not by exclusion

? Shows how unusual Collins decision is

Stipulations

? U.S. v. Jackson, E.D. N.Y. 1975 (75) ? Bank robbery case, arrested in GA, false ID

? ? ? ?

E: D.A. wants to introduce evidence of flight Flight admissible if 4 inferences met (last class)

D: link #3 weak: D fled other crime, prejudice high as well HELD:

? GA arrest will be inadmissible, so long as D agreed to a stip that had minimal basic facts

○ If so, only the stip facts will be admitted into evidence

? Provides for probative value of the flight, excluding part that has high prejudice (other crimes, guns)

? Dangers mentioned – misleading, “cartoon” 2D simple representation of messy 3D life.

? Practice note: very common in some classes of case Old Chief v. U.S., USSC 1997 (77) Charge with possession of firearm by conv. felon D asks to stip that D convicted of felony, D.A: “no” TC: does not have to accept the stip!

ISSUE: can the DA be forced to accept this Stip? D/C appeal arguments:

? 1) relevance, 2) 403/prejudice 1) Relevance: is this relevant?

? Even if alternative means, still relevant under 401 ? Relevance continues even if fact undisputed 2) Prejudicial? Excluded under 403?

? MAJ: gov’t usually free to try a case any way they choose (similar to Bocharski) ? BUT: under 403, compare evidentiary alternatives

? MAJ: probative value of the evidence gets discounted due to alternative means of proof.

? APPLY TEST: look at probative value vs. prejudice

HELD: with a status issue, the D may force a stipulation because of high prejudice of a prior

GENERAL rule; allowed to present as you please Why is a stipulation usually not needed?

? 1) narrative richness

? 2) evidentiary account does what no abstraction can ? 3) jury expectations

Applying those here, why force the stip then?

? Alternative means of proof for a status offense = limited probativeness plus high prejudice: Stip required ? DISSENT: O’Connor

Prejudice here was not “unfair”: because D.A. simply proving an element of offense, must do so

? ? ? ? ? ? ? ?

? ? ?

?

?

Probability: Started with basics of the math, probability issues

Collins: Classic Evidence case, use of math here was not appropriate, “wild

conjecture”, interferes with Rule 416 (proposed): debate if math better, allowed? Presumed innocent, minimally relevant evidence usually handled through cross-exam, like sarcastic statement here.

Stipulations:

Jackson: Judge crafts compromise to allow flight but remove the highly prejudicial part of the evidence.

Old Chief: Major case: HELD: with status offenses, alternate means of proof reduces probative value so actual offense out under 403, in these circumstances.

General Rule: D.A. can try a case as he/she wants.

The Specialized Relevance Rules p. 90-116; FRE 407-409

Each of these rules reflects a judgment on the writers’ part that the piece of evidence it governs fails a Rule 403 weighing test. Also, public policy choices about when evidence should not be allowed.

FRE 407. Subsequent Remedial Measures. “When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”

? Rule 407; When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

? Negligence,

? Culpable conduct,

? A defect in a product or its design, or ? a need for a warning or instruction.

? But the court may admit this evidence for another purpose, such as impeachment or - if disputed – proving ownership, control,etc.

Review:

Rejects the notion, “because the world gets wiser as it gets older, therefore it was foolish before.”

Problem 2.1: Wolf Attack: Wolf chained up after it jumped a chain link fence to attack a beagle, subsequently, while chained jumps the fence and attacks a small child. Two separate cases, is evidence of subsequent to first attack chaining

admissible? In Beagle case: No, FRE 407 bars subsequent remedial measures being admitted to prove negligence. In child case: Admissible, the chaining occurred before the injury to the child in that event. ? Policy reason for this distinction?

? Probative value changes in 2 situations

? Encourage successful repairs or remedial measures

Tuer v. McDonald: Wife of late husband brings medical malpractice action against two cardiac surgeons. After the death of the husband, the defendants changed protocol regarding administration of a drug to patients awaiting coronary bypass surgery. The blood-thinning drug was discontinued in preparation for surgery, but surgery was then postponed when another emergency came up and the decision not to re-administer the drug was made. Doctor testifies that he thought that it was unsafe to continue administering drug. Plaintiff then wishes to introduce evidence of changed procedure to show that it was not unsafe.

Issue: Whether the trial court erred in excluding evidence of the subsequent change in protocol based on a Maryland rule analogous to FRE 407. Did the testimony of the doctor bring the feasibility of the procedure into question so as to eliminate 407’s exclusionary provision? Did the changed procedure result in impeachment of defendant’s contention?

Holding:If feasibility of the procedure becomes contested (doctors deny that they could have kept administering the drug), then the evidence of the changed

procedure would not longer be protected by 407. Courts split into two camps: The first holds that feasibility is not controverted when a defendant contends that the design or practice complained of was chosen because of its perceived comparative advantage. The other camp announces a more expansive view of “feasibility” which includes that which is capable of being utilized successfully.

Impeachment: “True” impeachment is allowed in cases: Muzyka: Counteract statement product was “best safety.” Dollar: Witness said product safe.

Teaching of the case: Feasibility and impeachment will be read narrowly.

Class:

? P/C: the E of the change in policy is admissible for 2 purposes (not for negligence):

? 1. Impeachment: shows starting Hep. Safe unlike D testified

? 2. Feasibility: D implied it wasn’t feasible to restart Hep., but the new policy requires the medication prior to the OR

? #1: Impeachment: why can’t we impeach the doc w/this?

? Ct: impeachment in 407 cannot be read so broadly, b/c all S.R.M. impeach to some extent, not just for culpability/negligence ? Here, not issue of impeaching, but proper re-balancing of risks

? Impeachment: “true’ impeachment is allowed in cases:

? Muzyka: counteract statement product was “best safety”

? Dollar; W said product safe, but had written letter saying product had “death-dealing propensities”

? #2: Feasibility:

? Is the evidence admissible to show medication feasible? ? Depends on def. of feasible – narrow or wider

? “unsafe” could imply not feasible, BUT here D was not saying not possible just not advisable

? Result: not issue of feasible, but of judgment = OUT!

Problem 2.2: Wood Chipper: P sues D for V’s death in chipper, subsequently redesigned chipper. Trial court decides that re-design is not admissible to show fault. Court admits evidence: “I do not want to leave the false impression that the machines bought to the Army … was this machine.” Issue of fairness to plaintiff, as D exploits the trial court ruling by saying the same machine is still used in the same capacity and was purchased and used by the Army, when in fact a modified version is used.

? ADMITTED: “I do not want to leave the false impression that the machines bought by the Army…was this machine.” Also an issue of fairness to the P, after D’s exploitation of TC ruling

Problem 2.3: Use of the term “safest” in combination with later design change is impeachment in the narrowest sense.

? On retrial, what if D stated “safest chute you can do” ? Is the S.R.M. now admissible?

? NOTE: impeachment, even in the narrow sense, allowed when statement of “safest” or “the best design’ is made, because it cant be “safest/best” because of S.R.M.

? Muzyka very similar = ALLOW

? Amanda Allen Ankle Accident:

? Amanda at the WV mall on Saturday afternoon; wearing high heels ? A trips on the threshold entering JC Penney from the mall, SUES ? After accident, JC Penney puts a new lower threshold at the site ? Store denies it was negligent, says the mall owner is required to maintain the threshold in a safe condition

? Mall says both Mall & Store have responsibility

Third-Party Repairs: A subsequent repair by third parties is admissible, because the public policy rationale does not support suppression. Some courts have found they have too little probative value to be admissible. However, often has little probative value, so 403 can be a bar.

FRE 408. Compromise and Offers to Compromise.

Renders inadmissible evidence of a compromise or an attempt to compromise a disputed claim and statements and conducts made in negotiations to prove liability or invalidity of claim. Does not exclude such evidence to prove other things such as witness bias, lack of undue delay, or obstruction of criminal investigation.

Can a statement made during a negotiation attempt to compromise be used for impeachment purposes? No. Strong public policy interest in having things

smoothed over and settled before litigation. May apologize in some fashion in an attempt to get the injured party to agree to settle and make the issue go away.

Excludes the evidence only for improper purposes.

? Notes on Rule 408; Compromise Offers and Negotiations ? 408 excludes E for improper purposes, not all purposes ? Limiting instructions: good to limit prejudice, save E

? Posner: application can be difficult, shows a chief judge in appellate circuit having trouble

? “CLAIM”: must already have been a “claim” made against

compromise-offering party for rule to be invoked. If no claim, no settlement protection. But if lawsuit, or written demand for $, then claim exists and E out.

Civil ONLY: Criminal pleas are under 410 (next class)

Bankcard America, Inc. v. Universal Bancard Systems, Inc.: ? P wins at T#1, overturned, retried in T#2

? P/C: entry of settlement facts in T#1 not in error ? E: statements made at negotiations for settlement

? Statements admitted to show WHY P breached contract

? Are the statements admissible under Rule 408?

? Normally, excluded

? Mall installs sign at site: “Be careful – Step”

? Both M&S call expert W’s to say the entrance was not unsafe ? Q: Admissible to show negligence?

Admissible to impeach?

? Q: Threshold or the sign admissible for any reason?

When ownership/control contested, SRM shows control = CAN ADMIT for other purpose

May Admit against 3rd party: MAJ rule (see notes 105-106)

? BUT: Rule 408 excludes statements to show liability, invalidity of, or amount of a claim, or to impeach = OTHER PURPOSES OK

? HELD: statements should have been admitted at T#1, remanded for reinstatement of judgment from T#1 for P

? 2d issue: “ the claim” – here a DIFFERENT claim

FRE 409. Payment of medical and similar expenses.

“Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Expenses paid not admissible to show fault, no mention of the issue of statements! Under FRE, statements of fault accompanying payment of expenses will be admitted.

States response: Statutes have responded in some instances by passing statutes that allow apology.

Some: All statements are out – both apology and admissions of fault. Others: Some apology allowed, not statement of fault.

RESULT: state-by-state rules statutes coverage different. (Doctors hesitate to admit fault due to varying rules)

HYPO:

? FACTS: While staying at the Iceland Inn, John’s valuable pocket watch is

taken from the nightstand while he is out for dinner. The assailant had kicked in the door to gain entry. John sues the Iceland Inn for negligence in failing to provide adequate door security. Two weeks after his suit, the Inn installs new hardened steel deadbolts and new Kevlar safety chains. John wants to introduce the evidence of the new measures taken by the Iceland Inn, to show the prior condition was unsafe.

? When the Defense objects to the evidence, the judge’s ruling should be: ? A) ADMIT: this evidence is relevant to the issues in John’s case. ? B) ADMIT: but only if the Defendants claim they were not negligent, because then it is admissible to impeach. ? C) EXCLUDE: Rule 407 prohibits the evidence

Liability Insurancepp. 116-134; FRE 410-411

? FRE 411: “Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Williams v. McCoy: Plaintiff in personal injury suit resulting from a car accident wishes to point out that she retained an attorney after an unpleasant encounter with the claims representative of the defendant, but the trial court bars her from doing sounder Rule 411. The defense counsel tries to paint a picture of her being litigious because she retained an attorney shortly after leaving the hospital before attending sessions with a chiropractor, and she wishes to testify about the insurance claims agent but is denied by the court. On appeal the court finds that the purpose of introducing the evidence was not “an independent fact, solely on the issue of negligent or wrongful conduct.”

It then turns to Rule 403 analysis to see if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, etc…

The court finds that there was more prejudice in not allowing plaintiff to explain her answer in loss of credibility given the defense’s line of questioning, and knowing that the defendant has auto insurance is not a huge prejudice especially as most drivers do. In conclusion the trial court abused its discretion in not allowing plaintiff’s explanatory testimony.

? NOTE: still must pass 403! Balance factors

Problem 2.5

? Lacher v. Anderson, N.D. 1994 (120) (Prob. 2.5) ? Negligence case for injuries from fall

? TC: tape used to impeach the P, says she had been there ? E: D’s insurance adjustor taped the interview ? P/C: Argument? ? D/C response?

? Should the court admit the evidence? ? HELD:

? Tape recording of statement was P only, not adjustor

? adjustor cannot be impeached with his position as D’s agent for insurance. Adjustor not a W.

Problem 2.6

? Robertson v. Netherton, Tn App. 1994 (120) ? Medical negligence action

? D’s experts covered by same insurer as D

? E: P wants to impeach the D/experts on insurance issue ? P/C: argument as to admit? ? D/C: why exclude? ? VOTE: exclude? Admit? ? HELD:

? Not offered for purpose requiring exclusion under 411 ? BUT 403! Highly prejudicial vs. minimal value = excluded

? Jury Room Ruminations, Diamond &Vidmar (122) ? Interesting facts:

? 85% of cases jury mentions insurance ? Jurors aware shouldn’t talk about it

? Potential to have influenced 40% of votes

? Insurance affected P more – want to see if double-recovery

? Conclusion: futile to attempt to blindfold jurors on insurance issue ? Solution?

? Be more open about it: instruct them to not speculate, law requires no mention

? What about other Specialized relevance rules?

Pleas in Criminal Cases

? Rule 410: In a civil or criminal case, evidence of the following is NOT

admissible against the defendant who made the plea or participated in the plea discussions:

? (1) a plea of guilty which was later withdrawn; ? (2) anolo contendre plea;

? (3) any statement made in the course of [entering a #1 or #2 plea under Rule 11]

? (4) any statement made in the course of plea discussions, which do not result in a plea of guilty…

? Exceptions; #1: already in, for fairness, #2: perjury

? How different than 407-409, 411?

? MUCH more exclusionary: only 2 limited exceptions

? Why the difference?

U.S. v. Biaggi: One of the prosecutions associated with Wedtech Corp., a company that received contracts from the Defense Department. Defendant wishes to

introduce evidence that he rejected immunity offered by the government if he could give information on others, to prove that he had no knowledge of any wrongdoing. Government moves to have this evidence suppressed similar to guilty pleas under Rule 410. The Appeals Court finds that given the defendant’s case revolving around his lack of knowledge of the situation, and the fact that rejecting immunity, as

opposed to a reduced plea bargain, is much more probative, the trial court erred in suppressing the evidence. ? HELD:

? Probative force of this E makes it relevant, should admit ? What about 403 balancing?

? HELD: Disagree with TC exclusion; exclusion denied a fair trial to D, probative of innocence

? Marietta's Retrial (Prob. 2.9) (130)

? Retrial; D allowed to show he rejected immunity, D.A. offers statement: “I’d rather face you guys than them…” ? Probative value? ? D/C objection?

? Why does the D.A. think this is admissible?

? Rule 410: statement generally inadmissible ? Exception: “ought in fairness be considered”

? Should the court ADMIT or EXCLUDE?

? Seems to fit the first exception of 410: “ought in fairness” ? ADMIT

Review:

? Rule 407: S.R.M.: bars measures after incident to prove negligence

(Mahlandt), may be admitted for other proper purposes (Tuer), i.e. impeach (Muzyka) ? Rule 408: Compromise Offers: act of compromise and statements are out to prove negligence based on policy, even through probative. May be allowed for other purposes (Bankcard) ? MUST BE A CLAIM!

? Rule 409: Medical Expenses: payment of expenses inadmissible, no coverage of FRE for statements accompanying payment

? Rule 410: Pleas/Negotiations in Criminal Cases: near ban against use of failed pleas or associated plea statements against the D

? May be admissible against P (Biaggi) ? Limited exceptions (Mariotta’s Retrial)

Rule 411: Liability Insurance: inadmissible to show negligence or culpability, can be allowed for other purpose:

? Williams: proper to explain conduct ? Lacher: not admitted because bias/prejudice not at issue ? Robertson: under 411, OK (although excluded under 403)

Character-Propensity Rulepp. 135-145, 154-178; FRE 404

(A)(1) General ban on character-propensity reasoning, but there are exceptions: (2) (a) A defendant may offer evidence of their character, and then D.A. may rebut that evidence.

(b) Subject to Rule 412, a Defendant may offer evidence of victim’s pertinent trait, and then D.A. may rebut on victim’s character, or rebut with the same trait on defendant.

(c) In a homicide case, the D.A. may offer evidence of peacefulness to rebut evidence that V was aggressor.

(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(B) Other crimes, wrongs, or acts. Evidence of other wrongs is not admissible to prove character of a person in order to prove action in conformity therewith. May be admissible for other purposes.

Does the other act have to be criminal in order to be disallowed under 404(A)? No.

People v. Zackowitz: Woman either overhears men swearing while fixing a car early in the morning thinking it is directed at her, or one of the young men propositioned her for money, and she tells her drunk husband who returns and shoots one of the men. Trial Court: The state was allowed to present evidence of three pistols and a tear-gas gun possessed by the defendant to establish that he was “a desperate type of criminal” or “criminally inclined.”

Appellate: A fundamental rule of a criminal prosecution is that character is not an issue until the defendant makes it one. If the weapons had been bought in

preparation for a crime the story would be different, but in this case their presence in his apartment was of no consequence to the case and the prejudice was very high, so the majority on appeal orders a new trial.

Dissent: Here was a man who while at home selected from among several weapons in his apartment to carry out his crime, the fact that he did so and chose a weapon that would kill as opposed to injure or threaten is part of the crime charged and the conviction should be upheld.

Class:

? Common-law Rule: Character of D not admissible unless D makes it an issue, because:

○ Jury more likely to convict

○ Makes D have to defend whole life, not just charge ○ Make case about disposition, not about acts charged

? BUT: admissible to show, motive, intent, identity, common plan, absence of mistake, etc: why?

○ Don’t implicate same issues as general propensity ○ Connection closer to a disputed issue

Rule 404; Contains: ? A) (1)General ban on character-propensity reasoning. But there are exceptions:

○ 2) (a) A D may offer evidence of the D’s pertinent trait, and DA may rebut that evidence

? (b) subject to …[Rule 412]…a D may offer evidence of the V’s pertinent trait, and then DA may rebut on V’s character OR offer evidence of same trait with the D; ? (c) in a homicide case, the DA may offer evidence of the alleged V’s trait of peacefulness to rebut evidence that the V was the first aggressor.

○ 3) Evidence of W’s character admissible under 607-9 (week 6)

? B) (2) Admissible for other purposes: Motive, Opportunity, intent, preparation, plan, knowledge, identity, lack of mistake, lack of accident (e.g. Zackowitz) ? How do we decide if they are admissible under 404b?

○ Advisory Committee Note (RB 49): BALANCING like 403

The Propensity Box

The problem with character evidence, which has been generally not admissible since the common law, is not that it is irrelevant, but that it is overly prejudicial. The prejudice can take two forms: -May give excessive weight to the vicious record and bear too strongly on the present charge. The acts litigants use are often colorful and memorable and risk overly influencing the unrelated event on trial. -May lead to “preventive conviction” by convincing juries that the defendant is of a character that deserves to be punished regardless of guilt for this instance, or that other information like Zackowitz’s small arsenal deserves punishment on its own.

Other risks include waste of time litigating these other claims of wrongdoing or bad character, and jury confusion and distraction from the issue.

Evidence of other weapons ->To prove vicious and dangerous character -> [To prove action in conformance therewith]* -> To prove he killed with premeditation

*The [ ] indicate inferences barred by Rule 404. Routes Around the Box

Rule 404 only bars the forbidden inference of action on a particular occasion in conformity with a character trait.

1. Proof of Knowledge

Proof that a defendant knows how to use a certain weapon is a valid purpose, must then balance probative value and prejudice.

Problem 3.1: Hacker

Defendant enters guilty plea to a charge of hacking and fraud for computer

equipment shipments where he is caught signing for them, but denies a separate incident of the same crime where he was not caught. Government wants to

introduce evidence of the second theft which defendant pled guilty to in order to show knowledge of how to commit this kind of fraud. High probative value and high prejudice. Admit because the fact that few people could do this is so highly probative.

? Purpose: shows D as one of few people to be able to do

? D/C: objection?

? Decide by BALANCING!

? Balancing probative value and prejudice, seems prejudice high, so only if probative value high as well will balance favor admission:

? here probative value seems high b/c few people could do this ? Limiting instruction under Rule 105 too

Problem 3.2: Drug seller

Government wants to introduce evidence of previous drug convictions in a case of selling drugs to demonstrate knowledge of the drug trade. Probative value is maybe moderate to low (not that hard to exchange drugs for cash no real experience necessary), but the prejudice is high. ? NOTE:

? Only admissible if limited number of people are within the realm of knowledge, so probative weak unless something more specific here = UNLIKELY to Admit

2. Proof of Motive

Evidence may need limitations placed upon it so that it passes the 403

probative/prejudice test, but if evidence of prior conduct can establish motive it is admissible.

? U.S. v. Peltier, 8th Cir. 1978 (157) (Prob. 3.4) ? D charged with murder of FBI agents

? E: prior to event, D charged with Att. Murder in WI ? D.A.: purpose?

? D had motive to kill FBI agents when confronted

? Balance probative value with prejudice ? Admit or exclude? ? VOTE!

? HELD: WI warrant is too central to the case to exclude, even though high prejudice, high probative value means ADMIT!

3. Proof of Identity

U.S. v. Trenkler, 1st Cir 1995 (161)

? Bomb from 10/91, other incident 1986

? How do we know if “close enough” to show identity?

? “exact match is not necessary” ? Must be “sufficiently idiosyncratic”

? No need for “exact replica”, must show “distinctive quality”

? HELD: other bomb admissible. Why?

? Similar characteristics of the bomb itself ? Similar instances of crime

? Together = enough to show identity

? What about dissimilarities?

? Goes to weight not admissibility

? DIS: just not close enough. Differences enough to exclude

Trenkler and Shay Jr. are on trial separately for constructing and planting a bomb used in a house which killing one police officer and severely injured another while they were investigating a report of a suspicious object found in Shay Sr.’s driveway. Called the ‘Roslindale bombing.’

Class: For the government to be able to use identity evidence, identity must be challenged by defendant. Must be able to tie other incident to defendant. Evidence must also be sufficiently idiosyncratic, using a knife for a robbery,

exchanging money in a transaction with a handshake, etc. are too commonplace to be used as identity evidence.

United States v. Stevens: Stevens is charged with robbing and assaulting two Air Force police officers. The officers identify Stevens in a photo and then in a line-up, and after one mistrial from a deadlocked jury, he is convicted of both charges.

Stevens sought to introduce evidence by another black man who was assaulted around the same time on the base who stated that Stevens was not the attacker. Stevens sought to prove that because the crimes were so similar and a more reliable victim did not identify him as the criminal, Stevens was not guilty.

The crimes took place in the same area, were armed robberies with a handgun, perpetrated on military personnel, and involved a similarly described black

assailant. Additionally, the money order and checks from the robberies were cashed in the same area.

This evidence is called “reverse 404(b).” Where A is charged with a crime that is similar to B’s proven crimes, introducing evidence of those crimes functions as some evidence of A’s innocence.

? E: similar robbery on base, within 100 yards, 3 days later

? V did not ID the Defendant

? D/C: purpose to show other crime? ? TC: disallowed the use of the other act

? Under Trenkler test: OUT! (“not a signature crime”) ? HELD:

? For “reverse 404b”, the danger of unfair prejudice nonexistent in this case, as compared to standard 404B

? So applies just 403 balancing: but prejudice is only “undue delay, confusion, etc”

? TC should have admitted this: probative value high, prej less ? NOTE: prejudice against the state – is possible, not here (James)

? Hypothetical; College Professors Robbed Near Campus

? FACTS: D charged w/robbery of professor (V1) April 20

? April 20: professor (V1) testified robber muscled him into alley near campus, pointed gun, said “give me your wallet motherf---er”, robber asked for PIN number, V said didn’t have one

○ V1 followed D after robbery, ID’d the car

○ V1 also ID’s the foreign currency from his wallet in D’s possession

? April 18: professor (V2) said robber came up to him on street with gun, near campus, and pressed to head, said “give me your wallet motherf---er”, robber grabs and runs

○ V2 given a lineup, ID’d D as the assailant

? D’s defense is that April 20 incident not him. Admit 4/18? ? HELD: Howard, Ill App 1999, said NOT sufficiently distinctive

Narrative Integrity (Res Gestae)pp. 178-197; 223-240

Problem 3.10: Russian Roulette

Gun with obliterated serial number was found and the state is trying to prove that defendant had possession of the gun. State wants to introduce evidence of an

incident with his ex-fiancee where he pointed the gun at her, put in one bullet, spun the chamber and pulled the trigger until she convinced him to stop. Defense states that this is unnecessarily prejudicial evidence. Highly prejudicial anyone would want this guy in prison, but also highly probative because it seems highly unlikely that the ex would forget this gun that was pointed at her. ? U.S. v. Hite, 7th Cir 2004 (178) (Prob. 3.10)

? D charged with possession of pistol w/o serial #

? E: testimony of GF, says D pointed at her head in 1998! ? D.A: rebuts defense, shows WHY W so sure its same gun ? D/C: what objection?

? D.A.: what argument re: admission? ? Which argument is more compelling?

? HELD: 7th Cir. affirmed the TC decision to admit, stating it is an issue of

narrative integrity, story inextricably intertwined to the fact of strength of memory

? NOTE: No “Russian Roulette”, cant mention pointed at head/face

United States v. DeGeorge: Defendant is charged with a scheme to defraud by inflating the value of a yacht through sham transactions then losing it off the coast of Italy and attempting to collect on the insurance. DeGeorge had a history of boat losses and needed another corporation to take ownership of his shares in the

company in order to get insurance for the yacht. When they were caught trying to sink the ship by cutting holes in it they made up a story about being overpowered by a crew they contracted with and that it was them that attempted to sink the boat.

The court allowed evidence of the prior boat losses despite 404(b) in order to

complete the story about whyDeGeorge had to distance himself from ownership of the yacht, but the Court did not allow the government to introduce evidence that he collected on the insurance of previous boats. ? U.S. v. DeGeorge, 9th Cir 2004 (180)

? D contracts for boat, series of sales, boat sails & sinks ? Charges: wire fraud, mail fraud, perjury

? E: D.A. wants to introduce D had 3 other boat losses ? TC: admitted the boat losses, not insurance payout ? Res Gestae: 2 types:

? #1: constitutes part of transaction

? #2: narrative integrity: part of a coherent story

? HELD:

? Admissible as Res Gestaeunder #2: why?

? jury needed to know why the D couldnt insure in own name ? NOTE: res gestaenot mentioned in 404(b), allowed though

Two categories of evidence that can be “inextricably intertwined (res gestae)” with a charged offense: -Prior acts may be admitted if the evidence “constitutes a part of the transaction that serves as the basis for the criminal charge. -Or, “when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” The court finds that under the second category the evidence was necessary to

explain why DeGeorge couldn’t simply get insurance in his own name. The limited fashion in which the evidence was introduced ensured that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.

Absence of mistake or accident: Listed as a valid purpose as an exception to the propensity rule. Can only be invoked when defendant claims that it was an accident.

Problem 3.12: Cruelty to Dogs

Defendant allegedly throws a dog into oncoming traffic after a fender bender and he claims that it was accidental and the dog bit him while he was holding it and

instinctively threw it away from himself. Government wants to introduce evidence of beating a dog to death while working on a naval base. People v. Burnett, Cal. App. 2003 (184) (Prob. 3.12) ? Charge: animal cruelty

? Defense: dog thrown instinctively when bit him ? E: prior incident of killing dog from 1995 ? D.A.: why is this admissible?

? How is it not “propensity” reasoning?

? HELD:

? Affirmed admission of the act, but very close to propensity issue (if not over-the-line)

? NOTE: absence of accident = rebuttal to defense

Problem 3.11: Cleaning his gun

Defendant in murder trial of wife claims that she was accidentally shot. Government wants to introduce evidence that three years earlier he had shot and killed his first wife claiming again that it was an accident while cleaning his gun.

If it were an accident the first time, he would exercise more caution when cleaning guns. This connection increases the probative value without “taking a trip through propensity land.” Rebuts the specific defense that it was an accident. ? Cleaning his Gun: (183) Problem 3.11

? D shot wife, D claims rifle went off when cleaning it ? E: 3 years earlier, D shot 1st wife, claimed cleaning rifle ? D/C: what objection?

? Propensity! D.A showing D is a “wife-killer” so disallowed!

? D.A.: admissible for non-propensity purpose?

? COMPARE: dog case to this case

? Admit or exclude?

? Not a real case, similar to Comm. v. Scher, Pa. 2002 ? Classic absence of mistake here: D raises defense of accident, and D.A. gets to show unlikely

? Based on specific language of Rule 404b

Doctrine of Chances: Evidence is admissible because improbability of events occurring the way defendant says. Other acts are so improbable as to make it impossible that so many accidents befell the accused.

Is this propensity evidence? Academic debate. The argument that it is not is that you are not directly inferring anything about the character of the defendant, just that the scenario described is so incredibly unlikely that it seems more true that the defendant is lying. Does not directly say that he is the sort of person to do this sort of thing.

? Rex v. Smith, U.K. 1915 (184-190) ? Doctrine of Chances; E admissible because:

? Improbability of events occurring the way D says

? Other acts so improbable as to make it impossible that so many accidents befell the accused

? Assessment of the relative likelihood of events

? Is this propensity reasoning? ACADEMIC DEBATE

Huddleston v. United States: Issue of did the defendant know that the tapes he was selling were stolen.

? Huddleston v. U.S., USSC 1988 (190) ? Charge: Selling Stolen goods: did D know stolen?

? E: two other incidents with fencing, w/TV’s and applian. ? D.A.: Admissible under 404b for knowledge, TC Admits ? 6th Cir: E allowed if D.A. can show occurred by C&C/PofE ? ISSUE: what standard governs admission of other acts?

? D: wants a C&C, or P of E standard

? DA: lesser standard, or no finding needed at all (see fn 4)

? HELD: admit, if jury could reasonably decide act occurred:

? Based on legislative intent, policy, fairness ? RESULT: E was properly admitted

Admissibility Standard

Dowling v. U.S., USSC 1990 (196) (Prob 3.13) ? D charged with robbery in USVI

? E: other act of robbery by man in ski mask, unmasked ? Problem? D acquitted of other charge! ? Admissible under 404? ? HELD:

? Other act admissible b/c not guilty on higher burden of proof, may still meet lesser Huddleston standard ? Is that Fair?

404A propensity; exceptions

? Rule 404(a)(2)(B); Character of Alleged Victim: [In a criminal

case]…subject to the limits of Rule 412, a D may offer evidence of an alleged V’s pertinent trait, and if the evidence is admitted, the DA may: (i) offer evidence to rebut it; and (ii) offer evidence of the D’s same trait

? Rule 404a2c: V in homicide case – DA may initiate

? EX: assault case, D brings up V’s character for violence to show V was first aggressor (propensity for aggression).

? DA can respond by showing V not violent ? OR DA can respond by showing D is violent

? YES: Rothstein: how could innocent be charged again? Just saying he is guilty because he is a killer.

? NO: Imwinkelreid: doesn’t require propensity, because an OBJECTIVE assessment of unlikelihood, not subj.

? NOTE: VERY rare. Allowed U.S. v. Woods,4th Cir1973 (188)

? Rule 404(a)(2)(A); Character of D: [In a criminal case]… a D may offer evidence of D’s pertinent trait, and if the evidence is admitted, the DA may offer evidence to rebut it;

? EX: assault case, D can show D’s peacefulness, then the DA can show D is violent to rebut D’s evidence

? NOTE: all character propensity exceptions in 404a apply only to the D and the Victim - no one else!

Methods of Proving Character: 405

? Rule 405(a): When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.

? EX: assault case, D wants to show V 1st aggressor, so call a W who says V has reputation for violence (or opinion is violent)

? On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct

? EX; after D shows V violent by R/O, then the D.A. may cross-examine the witness about specific instances of nonviolent behavior (i.e. gang mitigation, counseling youth against violence)

? Summary: Can cross-examine about direct behavior when a witness states that the defendant has a good reputation and his opinion is that he is a good individual. Cannot bring own witness to testify about specific instances however unless character is an essential element of a charge, when bringing own witness they can only counter with evidence about defendant’s reputation and the witnesses opinion of defendant.

Michelson v. U.S., USSC 1948 (223) ? Bribery charge, D says agent extorted money from him

? E: D wants to bring in 5 character witnesses, to say D was a man with reputation for honesty in community

? D.A. response: ask about 1927 conviction, 1920 arrest ? D can bring in character, to show he wouldn’t do this

? not specific instances (“mini-trials”)

? Why can a D.A. attack character then?

? D opened the door

? Test sufficiency of the W’s knowledge

? HELD: D’s E was OK, because incompatible with charge

? D.A.’s Q’s on cross OK: OK to test qualifications of W’s

? Age of the events goes to strength, not admission

? “archaic, paradoxical, and full of compromises”…but “it has proved to be a workable even if clumsy system”

? DISSENT: events too remote, and highly prejudicial

? ALSO: JURY unable to make clear distinctions ? Michelson: apply Rule 404 ? D’s evidence: admit: pertinent character trait, 404a

Brother’s Keeper; Video Clip 15

? Testimony of a person from Community about Delbart. ? LEFT SIDE; D/C RIGHT SIDE: D.A. ? P.D.: benefit of the testimony?

? VALID PURPOSE under 404?

? PROPER PRESENTATION under 405?

? D.A.: response?

? 1. Cross-exam W’s on Specific instances of conduct – 405 ? 2. Counter-opinion: call other W’s

BUT! Counter W’s have to present R&O only, not SIC

? ALSO, can attack knowledge basis on cross

U.S. v. Keiser, 9th Cir 1995 (239)(Prob. 3.16)

? V makes threat in hallway of shooting trial ? D/C wants to bring in to show V is violent

? V’s character for violence admissible under 404?

? “Pertinent” = test of admissibility under 404a ? Will the court admit this then? ? NO: why not?

? Under Rule 405, D would be limited to R&O, this is SIC ? This is not R&O b/c only 1 instance

Habit; Routine PracticeFRE 406.pp. 240-245, 197-223; FRE 406, 413-415

“Evidence of the habit of a person or of the routine practices of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”

Halloran v. Virginia Chemicals Inc.: A can of Freon exploded and a mechanic brings suit for injuries sustained against the manufacturer. He testifies that the refrigerant was running slowly as he was pouring it into the air-conditioning compressor of car so he warmed up some water and put the cans in the warm water which he testified he’d taken to be about 90 to 100 degrees. The Chemical company wished to

introduce testimony that it was Halloran’s practice to use an immersion coil to heat the water, a statement Halloran denied on cross examination and the trial judge did not allow the introduction.

? Properly presented method under 405: reputation ? DA cross: specific instances, on cross OK

? BASIS: “information that reasonably leads him to believe the acts were committed” Pic’l (262)

Evidence of carefulness or carelessness has traditionally been excluded due to its low probative value as to how one acted on a particular occasion, but evidence of habit, a consistent response to given circumstances, has generally been admissible.

Here, Halloran in the course of his work has serviced hundreds of automobile air conditioners and used thousands of cans of Freon. He would of course have a routine and evidence of that routine should be admissible to aid the jury in its

determination. This is provided that the witness can testify to a sufficient number of instances of the alleged habit. Class:

Halloran v. Va. Chem. Inc, NY 1977 (240) Exploding Freon can during AC recharge in NY E: P’s warming of cans using an immersion coil

W: will testify the P did coil method many times TC: sustained objection, so testimony excluded

Relevant? Yes! More likely P negligent, D less/not liable Admissible under Rule 404? NO: propensity=disallowed What is a “Habit”?

A “deliberate and repetitive” response to specific situation, where person likely to repeat it again

HELD: Ct should admit the evidence IF shown to be a habit, based on # of occurrences.

? “Habit” defined: ? “predictable and predictive conduct” Halloran (242) ? “invariable regularity” Wigmore (243) ? “Routine” (242)

? “deliberate and repetitive practice” Halloran 242 ? Reflexive, almost instinctual, quality to it

Weil v. Seltzer, D.C. Cir 1989 (244) (Prob. 3.19) ? P family sued Doc for prescribing steroids, says ‘antihist.’ ? E: P wants to introduce 8 other patients, same steroid ? P/C: how could this be admitted? ? Judge: what ruling? ? HELD:

? this was EXCLUDED as a non-habitual act

? proponent cannot make showing that it has regularity, is a habitual event, since unclear # of patients

Habit, “involves more that unpatterned occasional conduct, that is, conduct however frequent yet likely to vary form time to time depending on the surrounding

circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct.”

There is no clear line separating “habits” from character-based “propensities”

regulated by Rule 404. There is some evidence that the committee meant to expand the definition only to include relatively innocuous behavior.

Problem 3.19 Steroids

Doctor gives patient over the course of several years steroids telling him that they are antihistamines. Patient dies mysteriously and it is discovered that it was these steroids that killed him. State wants to introduce evidence of 8 other patients that were told they were being prescribed antihistamines who were actually being prescribed the same steroid.

Presumably this doctor has had many more patients and saying that he has done something 8 times does not rise to the level of predictability necessary for habit under 406. The argument that it is habit, not a winning one in this case most likely, would be that every time he encounters an allergy he prescribes this drug and lies about it for whatever reason, without fail.

p. 197-223 Character-Propensity: Sexual Assault Cases

FRE 413, 414, and 415 are the first true exceptions to the propensity evidence ban. They relate to evidence of similar crimes involving either sexual assault (413), child molestation (414), which are admissible wherever relevant.

State courts do not always adopt similar provisions for admission of this type of evidence.

Pre-413; Lannan v. State; Ind. 1992 (198) ? Molestation case

? E: D.A. wants to show other acts with same, other victim

? Indiana law: exception pre-1992 for sexual crimes, which allowed “depraved instinct” evidence

? BASES: 1) recidivism, 2) necessity/bolstering ? Rationale #1: Recidivism: analysis?

? CT says based in tendency of deviants to repeat offenses ? But then again, so do drug addicts so not compelling

? Rationale #2: Bolstering: analysis

? Rule started in 1930’s because jurors couldn’t imagine anyone could do this type of act

? Cannot allow propensity reasoning, no matter social goal ? HELD:

? Indiana state law exception is OUT: what replaces it?

? Rule 404b will apply to these issues, like in federal court (before 413)

? LESS evidence coming into trials as a result

404b applied: State v. Kirsch, N.H. 1995 (203) ? Prosecution for sexual assault, 3V’s between 1984-7 ? E: uncharged acts with other V’s (1970’s & early 80’s) ? D.A.: shows motive, intent, common plan, so in by 404b ? TC: admits prior acts, under Rule 404b, after balancing ? D/C appeal argument?

? Each rationale should be rejected

? #1: Motive:

? MAJ: this is propensity evidence, so not motive here

? #2: Intent

? MAJ: “this argument indistinguishable from one that would seek to use the evidence to show the D’s propensity to sexually assault young girls and therefore imply intent” (205)

? #3: Common plan:

? MAJ; common plan must have each act be a “constituent part” of the whole, here each is a different event

? HELD: admitted in error under 404, error not harmless. ? DISSENT:

? common plan should not be so narrowly limited as MAJ does

? NOTE: prior to 413, 404b difficult to get other acts before jury

DV Prosecutions: Problem 3.14 (206-7)

? EVERYONE SERVE AS D/C for Defendant

? FACTS: Charge is DV homicide. The D.A. is asking to introduce prior incidents of battery of the spouse

? Each is an incident involving assault w/o weapon, 911 call ? D.A. says that this EVID is admitted properly under Kirsch ? Allowed because each incident addresses issue of control

? D/C: response to D.A’s argument? ? Court: admit or exclude?

? Only allowed if CONTROL the key. See Ryan v. State, WY 1999 (802) ? Video Clip #14a: OJ Simpson Opening ? Purpose of the prior incident? ? Admit under Rule 404?

? NOTE: Judge Ito did allow this in at trial

Character-propensity: Sexual assault cases

Rule 413: In a criminal case where D is accused of sexual assault, the court may admit evidence that the D committed any other sexual assault. The evidence may be considered for any matter to which it is relevant.

Rule 414: Same, for child molestation charges Floor statement: to protect the public from sex offenders

Once a rapist?Baker (p. 213) Rate of recidivism is lower than other crimes, but this information is offset by the fact that rapes and sexual assaults are under-reported compared to other crimes. However, other crimes are notoriously underreported as well and being apprehended and convicted only after repeatedly engaging in comparable illegal conduct is also not unique to rape. Because of the

misconceptions that rapists are rare and particularly recidivistic, allowing this

evidence makes a false conviction of a repeat offense more likely. The police place a picture of a man in front of a victim who misidentifies the individual, and then the court is more likely to convict because of the evidence of prior acts. ? Challenges the propensity/recidivism rationale for 413

? NOTE: does not attack Rule 414 same way, b/c recidivism rationale appears well founded in those cases

United States v. Guardia: ? D charged with sexual abuse from physician visits ? E: other acts with 4 other V’s during physician visits ? TC: evidence excluded under Rule 403 ? Under Rule 404, what result?

? Probably out: each act not a “constituent part” of overall plan

? Rule 413: allowed in? 3 needs: D charged with sexual assault, E is another instance of sexual assault, and E must be relevant

? Relevant? Shows propensity to assault so more likely guilty

? Does Rule 403 also apply?

? CT: yes it applies

? but must consider favorable standard for admission under 413

? HELD: TC did not abuse discretion in excluding other acts

? issue in case not of credibility but of physician propriety in medical visits, so don’t help resolve things “at issue” here

This type of evidence can come in for a relevant purpose, but must still be sufficiently probative because of its high prejudice under Rule 403.

United States v. Mound: ? Denied review, but dissent discusses Rule 413 ? What’s wrong with Rule 413, per Arnold?

? Propensity reasoning excluded per common law

? The prognosticative power of evidence is low (Baker?) ? Fundamental fairness issue

? Response from the MAJ: Rule 403 will exclude evidence that violates rights

? Is Judge Arnold correct, or is Rule 413 worth it?

Review: Character: 404-406, 413-415

? Rule 404a: disallows character evidence for propensity

? Zackowitz: classic case, provides basics of Rule 404 ? Anatomy of a Murder; classic propensity reasoning

? Rule 404b: Permissible Purposes: non-exhaustive list of allowed reasons to admit other acts:

? Knowledge: Hacker problem, D one of few to know ? Identity: Trenkler, “sufficiently ideosyncratic”

? Motive: Peltier: motive to read violently, high prej, but in ? Res Gestae; narrative integrity; Hitt, DeGeorge ? Absence of Accident/Chances: how very unlikely it is with accidents, one with rebuttal and other without

? Rule 404a2: some character, in criminal cases, usually at the option of D to start, then DA can rebut

? Rule 405: Methods to Prove Character

? Direct: Reputation or opinion

? Cross: specific instances of conduct

? Rule 406: HABIT: routine/repetitive response

? predictivequality is key for Habit Halloran ? Rules 413-14; response to failure of Rule 404 to allow some E into trial; allows propensity reasoning

? subject to 403, “fit” to issues in the case too Guardia ? controversialMound

021612

Last Class

? Rule 406: Habit: permitted to show conformity

? Halloran; must show number of instances, invariable regularity: high burden, compare to propensity

? Weil: 8 patients not enough, don’t know total # so cant show admissible

? Common Law: Sexual Assault & Propensity Evid.

? Lannan: shows old system with “depraved instinct” law, adopts 404b ? Kirsch: prior to 413, must show 404, high bar to admit if read narrowly

? DV & Control: potential as all acts of control, Raeder, OJ Video

? Rule 413-415: adopted to allow propensity evidence in trial

? Guardia; discussed whether the other acts admissible, but because what was “at issue” in case, 403 keeps it out – 403 balancing still to be done!

? Mound: shows the controversy over use of propensity reasoning, and whether it violates due process

Truthfulness Ipp. 246-272; FRE 607 & 608

Impeachment:

? Flowchart, Page 249 ? Impeachment Types:

? Character-Based Impeachment: (Left side)

? Rule 608: character for truthfulness ? Rule 609: prior criminal convictions

? Non-Character Based Impeachment: (Right)

? Conflicting Statements with other Evidence ? Prior Inconsistent Statements ? Evidence of Bias

Character evidence rules impose no restraint on calling a witness mistaken by casting doubt on their perception, memory, or narrative accuracy. Additionally, a lawyer’s suggestion that a witness is lying now may say little about the witness’s general tendency to tell the truth.

Non-character Impeachment:

-Conflicting statements with other evidence:

Lawyer can impeach Witness A’s claim that traffic signal was red by

introducing a witness that says it was green, or can introduce a photograph showing that it was green at the relevant moment. -Prior inconsistent statements:

Evidence that witness A once before said that the light was green tends to impeach their testimony that it was red. The theory is that the witness should not be believed on this point, and it can be traced to an attempt to deceive, or poor memory or bad narrative skills. -Evidence of bias:

FRE 607. Who May Impeach. “The credibility of a witness may be attacked by any party, including the party calling the witness.”

FRE 608. Evidence of Character and Conduct of Witness.

“(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for

truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct. Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2)

concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

? Rule 608: a) A W’s credibility may be attacked or supported by testimony about the W’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.

? But evidence of truthful character is admissible only after the W’s character for truthfulness has been attacked.

? (b) Except [with 609], extrinsic evidence is not admissible to prove specific instances of a W’s conduct in order to attack or support the W’s character for truthfulness.

? The court may, on cross exam, allow them to be inquired into..if probative of truthfulness or untruthfulness…

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.”

Differentiate between extrinsic evidence, which is inadmissible, and evidence introduced during cross-examination to show that the witness is being dishonest.

? Rule 608: similarities/differences to Rule 404/405? ? Similarities: form of proof is R&O, unless cross

? Must be an attack first to allow rebuttal to bolster Truthf. ? Differences:

? Rule 608applies in civil and criminal cases!

? Either party may initiate an attack on credibility, as opposed to 404 where (generally) D has the option

U.S. v. Whitmore, DC Cir 2004 (250) ? Cocaine/firearm charge based on Soto testimony ? D/theory: Soto planted the pistol on the D

? E: 3 witnesses to testify re: Soto’s truthfulness, plus cross-examine Soto on prior acts ? 3 witnesses:

? Cherkis: local reporter, interviewed W’s about Soto 1/2000 ? Cooper: criminal lawyer, R&O of Soto’s truthf. is poor ? Edmonds: acquaintance of Soto, lived there 5 yrs ago

? All proposed Defense E excluded by TC ? Issue #1: the 3 witnesses:

? For reputation, must be1) acquaintance, 2) in his community, and 3) know the circles in which he moves Michelson ? Cherkis&Edmonds: too remote in time

? Cooper: cannot speak for the “community”, too few people ? Result: all W’s properly excluded by 608 & 403

Philadelphia: Video Clip #19

? Employment discrim. case, P on stand for cross ? D/theory on line of Q’s? ? P/C response? ? Ruling?

? Seems unrelated to truthfulness, so likely out by 608a

? “Did you state on you bar exam application that you had no tickets?...Werent there 2 tickets?” ok?

? Rule 608a: now probative of truthfulness, so in (application is in to show lying disposition under 608a)

? Tickets themselves in?

? NO: no extrinsic evidence allowed to prove a SIC by 608b

Article: Richard Uviller (255,265)

? Bases of Impeachment Evid under 608:

? 1) Dishonest people more likely to lie

? 2) Character for veracity detectible by outside observer

○ Community consensus on veracity transmitted

? 3) Jurors can differentiate between dishonest character resulting in untruthful testimony, and dishonesty and criminal conduct ? CONCLUSION: “more suitable to a nursery,” “ludicrous” ? REAL basis:

○ take W out of artificiality of the trial process

4 (5?) limits on Use of 608 Evidence:

? 1. Must be probative of truthfulness/untruthfulness ? 2. No extrinsic evidence

? 3. Discretion: TC may exclude by balancing 403 ? 4. Factual basis to ask Q: Michelson ? (5: independent duty of the judge to protect W from harassment or embarrassment: Rule 611a3)

Impeachment by Character Evidence: Rule 609

? Rule 609: (a) The following rules apply to attacking a W’s character for truthfulness by evidence of a criminal conviction:

? (1) for a crime that…was punishable by death or imprisonment for more than 1 year, the evidence:

? Issue #2: Cross-Exam of Soto: support/license

? Standard to ask: reasonable basis for “genuine belief” Lin, DC Cir ? DMV record enough to allow the question!

? If D denies, then stuck with answer: no extrinsic evidence

? not harmless to deny Q’s: Soto key to the case and credibility central to Defense on pistol charge

○ A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the W is not a defendant;

○ B) must be admitted in a criminal case in which the W is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that D

? (2) For any crime regardless of punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving – or the W’s admitting – a dishonest act or false statement.

? Rule 609: basis:

? More likely to lie if W has a felony conviction

? Cannot use for propensity reasoning on the crime ? Juries understand the difference between these

? Article: Uviller (265)

? Extremely unlikely inference can be made from felony to lying, since different: why allow when disallow propensity?

? Article:Eisenberg & Hans (270)

? If D testifies, jury more likely to learn of prior record

? On strong cases, jury learning of record doesn’t affect verdict

? WEAK cases: jury learns of record MUCH more likely to convict the D (18 vs. 49%)

? CONCLUSION: jury uses prior to “make up” for evidence in weaker cases, should be considered by judges in 403 analysis

Truthfulness IIGF 273-305; FRE 609

Anatomy of a Murder: Video Clip #20

? Murder case, jailhouse informant on the stand, cross ? Practice note: often these will be “pre-empted” by other

? But if so, no error can be claimed by D Ohler, USSC 2000 (288) ? Issue #1: Arson – admissible w/o sentence?

? YES: admissibility depends on possible sentence, per 609a1

? Issue #2: Reform school: admissible?

? Probably not: Rule 609d gives limited circumstances for admission

? Issue #3: Arsons: 8, 12, and 15 years old: admissible?

? 12&15: disallowed unless Prob. Value substantially outweighs prejudice to the opposing party

? 8: if possible punishment over 1 year, then in for truthfulness w/403

? Issue #4: Misdemeanors: in?

? OUT, unless proponent can show they involve dishonest conduct in elements or readily discernable. (Rule 609a2) ? Disorderly conduct, window peeping?

? No element of dishonesty = OUT

? Larceny?

Cascade of Criminal Conduct under 609:

? 1. 609a2: dishonest crimes: SHALL be admitted, no 403

? 2. 609a1: crimes over 1 year, W not accused: should be admitted, subject to 403 review: Mostly in

? 3. 609a1: crimes over 1 year, W accused: probative value must exceed prejudice: strict balancing:

? 4. 609b: 10-year old or more: not admissible unless prob. value substantially outweighs the prejudice: mostly out

? 5. 609d: Juvenile: only allowed if necessary for fair determination of guilt/innocence: almost all out

U.S. v. Brewer: Kidnapping and auto theft case, Defendant moves to suppress priors. ? U.S. v. Brewer, E.D. Tenn 1978 (273) ? Kidnapping/auto theft case, D moves to suppress priors ? 4 prior offenses:

? 1. 1960: Kidnapping: federal case

? 2. 1968: Aggravated assault, assault with weapon, rape: OH cases

? How to decide if admissible?

? Step #1: punishable by over 1 year?

? Answer: yes – all were felonies (609a1)

? Step #2: are these within 10 years?

? RULE: 10 years measured from date of conviction or date of release from confinement, whichever is later

? BOTH: within 10 years when calculated from date of release

? Step#3: because used against D, balancing:

? probative value must exceed prejudice: 5 factors:

? 1) nature of crime, 2) time of conviction and subsequent history, 3) similarity, 4) importance of D’s testimony, 5) centrality of the credibility issue Gordon (276) ? Result on each factor?

? HELD:

? 3 offenses from OH are admitted

? Kidnapping charge from 1960 out: too much like the present charge so prejudice high, probative lower

? NOTE: more D needs to testify, less likely court will admit the other crime. SeeGordon, Paige(279)

U.S. v. Valencia (Prob. 4.4): ? Cocaine case

? Larceny generally NOT a crime of dishonesty Fearwell, DC Cir (281)

? Perjury?

? YES: shall be admitted, no 403 review. But 10-year rule does apply!

? E: govt offers prior sale of controlled substance (404B, 609) ? TC: prior is admissible to impeach D if D testified, by 609

? D argument: since it was inadmissible for 404b purposes, cannot be admitted for 609a balancing ? D.A. response?

? What should be the result?

? HELD: 8thcir decided evidence serves legitimate impeachment purpose, and probative value is the ADDITIVE of 404b use and the impeachment use ? Altobello v. Borden Conf. Pd., 7th Cir 1989 (286) (Prob 4.5) ? Age discrimination suit, P crossed about prior offense

? PRIOR: Statute for theft elements, 6 months imprisonment

? When D pled, admitted he tampered with meters

? Admissible under RULE 609a1?

? NO: only 6 months imprisonment = out

? Admissible AT ALL?

? Act of Deceit 609a2?

? Should this be admissible at trial then? ? HELD:

? allowed under 609a2, because this necessarily involved dishonesty because intending to deceive the meter-reader

Anatomy of a Murder (Video Clip #20): Practice note: Often these will be “pre-empted” by other party. Defense lawyer asks: “Isn’t it true you’ve made some mistakes before? But these have nothing to do with the offense we’re discussing today, correct?” The risk here is that you cannot on appeal claim error for admitting priors because you dealt with them before the prosecution did.

Article, Wissler & Saks: ? Issue: Do juries follow limiting instructions that limit use of this evidence to truthfulness?

? Interesting Facts:

? Little effect of conviction on credibility determination ? Ds’ with no prior record = lower conviction rate

? Highest conviction rate = for “same crime” prior (75%) ? 56% said prior meant more likely D is guilty ? 13% said prior was critical factor in guilt

? Conclusion:

? No effect on credibility

? Jurors using priors to determine substantive guilt ? Convincing, or not?

Rehabilitation:

? When party has attacked truthfulness, under ? Rule 608a: O&R testimony re: untruthful character

? Rule 608b: evidence of SIC re: untruthfulness, on cross ? Rule 609: impeachment by conviction

? Then the proponent may respond and BOLSTER

? Call a W to discuss the W’s character for veracity (608a2) ? On direct must be R&O only, no SIC ? No extrinsic evidence allowed 608b

U.S. v. Bonner (Prob. 4.7): D.A. bolsters witness’ truthfulness character, defendant appeals. Bolstering credibility of witness before it is attacked is impermissible. May only be permitted to rehabilitate a witness’ credibility once attacked. ? Attacks on W’s character: opening statement, and cross

? D: attacks on the W were not impeaching character, so no rebuttal by bolstering allowed

? Were these statements impeaching general character? ? HELD:

? 7th Cir upheld the TC, allowed the bolstering

? Wrong? Note that “evidence of bias or interest does not” qualify as a general attack for truthfulness (RB 138)

Appeals court affirms the district court decision that character had been challenged. Wrong? Note that, “evidence of bias or interest does not” qualify as a general attack for truthfulness.

Extrinsic Evidence

Extrinsic evidence disallowed

? Rule 405: may cross on SIC, but cannot then offer extrinsic evidence of the issue

? Rule 608: cross exam on SIC, but stuck with answer

Some evidence allowed: In limited circumstances

? Rule 609: prior convictions

? Evidence under 405/608 and ALSO ALLOWED FOR OTHER VALID PURPOSE Abel, USSC 1984 (302) ? When not attacking generalcharacter, but addressing the specific lies in this case (303)

Problem 4.9: Defendant wants to call two witnesses to testify about DA’s star witness. W#1: Witness accused him of meth possession to help self, and W#2: Witness blackmailed him to get car repairs

Defendant: Offering to show witness is a liar in general D.A.: Why out?

Trial Court held: Denial of the witnesses was proper. For witness regarding car repairs, extrinsic evidence of SIC=out. For witness #1 regarding meth, offering plea deal, conviction good enough to impeach, no need to get into these = out.

The Rape Shield RuleGF 310-346; FRE 412

FRE 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence regarding sexual misconduct generally inadmissible:

(1) Evidence offered to prove any alleged victim engaged in other sexual

behavior.

(2) Evidence offered to prove alleged victim’s predisposition. (b) Exceptions

(1) Criminal case: (A) specific instances of sexual behavior by the victim to prove that a person other than defendant was source of semen, injury or other physical evidence. (B) Specific instances of sexual behavior by alleged victim with respect to sexual misconduct by defendant to prove consent, or by the prosecution and (C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) Civil case: Evidence to prove sexual behavior or predisposition of any alleged victim is admissible if otherwise allowed by the rules and probative value outweighs danger of harm to victim and of unfair prejudice to any party. Reputation is only admissible if put into controversy by the alleged victim.

(c) Procedure to determine admissibility under (b).

(1) Must file a written motion at least 14 days before trial, and serve the

motion on all parties.

(2) Must conduct a hearing in camera and afford all parties a right to be

heard on admission.

Rule is intended to encourage victims of sexual misconduct to institute proceedings by safeguarding from public embarrassment and sexual stereotyping from disclosure of intimate sexual details.

Rule bars evidence relating to sexual behavior or disposition whether substantively used or for impeachment, unless probative value significantly outweighs harm to victim.

The way victim has acted with other individuals is irrelevant because of desire to protect privacy and shield from embarrassment, unless the aim of the evidence is to say that certain evidence of the alleged sexual misconduct was placed by another person than defendant.

Wigmore Treatise on Evidence in Trials at Common Law:

Shows how young women’s testimony was distrusted and women who attempted to charge rape had to be mentally examined thoroughly and their social history examined by experts.

Susan Estrich, Real Rape:

Historically rape charges have been discounted because the charge is easy to levy, hard to prove, and it’s hard for a man to prove it was not consensual. Feminist efforts to revise the law have attempted to stop women from being victimized a second time by the justice system.

Corroboration of victim testimony still is a critical factor even today.

“Whodunit” vs. “What Was Done”

Problem exists in distinguishing between victim’s violent character in a self-defense assault case (fair game for defense) and a victim’s sexual predisposition or character in a consent-rape defense case (Off-limits to defense).

The difference that does exist is that the opposite side of the coin, the woman’s

likelihood to commit the unscrupulous act of lying about a rape is the same whether she is promiscuous or sexually reserved. Therefore, the relevant information is

whether she has a propensity to lie about rape, not whether she has a propensity for having sex with many men she meets.

(This argument also says that information allowed, previous consensual sex with defendant, should also not be admitted)

However, one may defend such evidence saying its relevance isn’t zero, when

considering the possibility of consent. But this is not whether she consented at that one time, which is still an entirely separate inquiry.

Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts.

The new regimes is designed to rebut the sexist assumptions of a bright line between “chaste” and “unchaste” women, from which behavior may be inferred.

The new rule is an extension of 404(b) which prohibits evidence of “other crimes, wrongs, etc” form being introduced to infer conduct on a specific occasion for

propensity, but does allow for other purposes, identity, opportunity, common plan or scheme, etc…

The article then criticizes the rule for failing to distinguish between benign and invidious uses of sexual conduct evidence. Cases and Examples:

People v. Jovanovic (Problem 5.1): A woman claims she was raped on a first date after e-mail correspondances. Defendant claims encounter was consensual. Court refuses to admit certain e-mailsto D talking about a current partner who was a

sadomasochist, and that she described herself on one occasion as being a submissive partner who pushes the S to inflict more pain.

Correct to exclude?

Evidence to prove disposition and other sexual behavior is inadmissible (412a). In a criminal case the exceptions are under 412b1 are to prove another person was source of injury, (Not applicable here, defendant admits he was the person who sodomized her), specific instances of sexual behavior with respect to sexual

misconduct by defendant to prove consent, and constitutionally required evidence.

? Under 412: acts of “sexual behavior” to show consent = allowed

? HELD:

? These emails were sexual behavior in their specific context, so TC should have admitted at trial.

Explaining the Source of Physical Evidence

(Problem 5.2): Victim claims that defendant had never been to her apartment, dropped off some documents and then sexually assaulted her. Introduces

fingerprints on dresser as evidence. D claims that they had a consensual sexual encounter a month before the alleged attack and showed evidence that it could still be there.

? E: D wants to rebut evidence of fingerprints, by stating that D&V had consensual sexual encounter month earlier ? TC: Allowed the testimony

? Exceptions: 1)“physical evidence”: does exception work?

? NO: not claiming another person source of E, but that he is

? Exceptions: 2) “D&V encounter before”: does this work?

? NO: not offered to prove consent

? So should this be in? D.A? D/C? ? Which side is more compelling?

Past Allegedly False Accusations

State v. Smith: Convicted of indecent behavior with juvenile, D argues on appeal that evidence of prior false accusations of molestations should have been admitted. Grandchild of D’s wife claimed that on and off over the years D had touched her in inappropriate places. No physical evidence because there was no penetration.

Defense introduces evidence testimony of a friend who claims that the girl had levied the same accusation against her cousin and allegedly recanted, state objects

and defense argues that the evidence is to prove state of mind of alleged victim, not prior sexual behavior.

Trial judge held an en banc hearing on the matter and concluded that there were no prior incidents of false molestation (evidence of cousin conflicted with mother of girl and girl herself), and any actual prior molestation was barred by the rule.

Issue: Is testimony and cross-examination of witnesses regarding prior accusations by the victim allegedly recanted admissible?

Holding: Because the evidence was intended for purely impeachment purposes without relying on reputation for chastity or any actual prior sexual conduct, the evidence was improperly excluded constituting reversible error.

? AC NOTES: False prior claims not barred by 412

? Admit per 608: SIC on cross, of instance that prob. of truthfulness: “reasonable basis test” from Michelson

State v. Alvey: Defendant accused of stopping car in a secluded spot and raping a girl wants to introduce evidence that she had made a false accusation after

consensual sex before providing a witness would state that she had been with a guy many times that she lived with while he was there with her sisters and one occasion she came out saying ‘he raped me’ repeatedly looking upset and they all knew he had not and laughed including her sisters.

Admissible? No, regards sexual history so exclusion was proper.

Can the defense merely cross-examine the complainant about the situation? Constitutional right to confront accuser?

? Held: Different than Smith, because in Smith event was entirely fabricated. Here there was a sexual event in the past, but the issue of consent or not was disputed. So this IS barred by 412.

Proof of Bias

Olden v. Kentucky: Petitioner claimed that two men raped her then dropped her off at her live-in boyfriend’s house. Both her and the boyfriend were married to other people and had separated from their spouses. The defendant seeks to introduce evidence of the living situation in order to prove their theory that she lied about the rape because she feared her boyfriend would be suspicious of her getting out of their truck.

Trial court bars all evidence of the living arrangement from the jury. The supreme court finds that the decision improperly denied petitioner his right to be confronted with the witnesses against him, which includes the right to conduct reasonable cross-examination.

The defendant has consistently insisted that he and the alleged victim engaged in consensual sexual acts and that she lied on this occasion to protect her relationship with her partner. This testimony was crucial to the case and was improperly excluded.

(Note: Under the proposed 404(b)-style analysis rule this would be also included under the need to maintain the narrative integrity of the defendant’s account. Motive to lie in this case, not character to lie generally.)

Whether the Sixth Amendment’s confrontation clause allows the accused to cross-examine about past lies depends on the jurisdiction as they are split on the issue.

Bryant’s Accuser (Problem 5.5): Defense for Kobe Bryant in pretrial hearings and a court filing have alleged that his accuser had sex with two of the prosecutions witnesses and had intercourse only hours after her encounter with Bryant. 404B Purposes: Res Gestae

Stephens v. Miller, 7th Cir 1994 (333)

? Rape case, D&V in trailer and D claims fabrication

? E: D/C wants to introduce statements of D to V in trailer ? TC: D allowed to mention statements, but not content ? D’s appeal: #1: denied rights, #2: narrative integrity ? Issue #1: was this a constitutional violation?

? right of D to testify may bow to other interests, has some limits Lucas, Rock; no D error here ? Issue #2: res gestae?

? DENIED: because if this is allowed, lots of 412 would get in and end-run of the statute, and not a constitutional issue anyway

? DIS: genuine exculpatory material should be in Sharlow ? No other way to present the material w/strength of defense

? Which argument is more persuasive: MAJ or DIS?

404B Purposes State Mind

U.S. v. Knox, Ct Mil Rev 1992 (340) ? Charge: Aggravated sexual abuse

? E: D wants to introduce V’s prior history

? Evidence to show that D reasonably believed consent ? NOTE: propensity of the D, not of jury, so not 404 issue

? “Evidence critical to the defense must be admitted” Chambers USSC 1973 (343) ? HELD:

? D was trying to do with this E what 412 prohibits: make the V look like a bad person

? NOTE: usually not an issue, because usually by statute no mental state required on issue of consent

? At least 1 case allowed: Doe v. U.S., 666 F.2d 43 (4th Cir 1981) (344)

Defining Hearsay030712 GF 360-391; FRE 801-802

Classic hearsay: Witness relates prior statement of a person, for the truth of what statement asserts.

If witness testifies, can use: -Oath: Swear to tell truth, perjury if lying. -Demeanor: Jury sees them on stand. -Cross-exam: Test the strength of memory, accuracy, etc.

These methods are all used by fact-finder to test validity of testimony with regard to perception, memory, narration, and sincerity. However if that individual is relating something someone else said there is not way to check that person’s perception, memory, narration, and sincerity.

Rule 801(c) Hearsay. “Hearsay” is a statement, (1) other than one made by the declarant while testifying at the trial or hearing, (2) offered in evidence (by a litigant) to prove the truth of the matter asserted (by the declarant).

? Out of court? Then 2 Questions:

? Is the litigant offering the statement to prove the TRUTH of what was said?

? Did the declarant ASSERT – intend to communicate – that fact?

Question #1: Is the litigant offering the statement to show the truth of what was said? -Example of yes. Witness testifies that somebody else heard a scream to demonstrate that there was a scream.

○ Effect on the Listener: (i.e. James) ○ Verbal Acts: contract acceptance, etc – whether or not its true, the statement itself has legal effect

○ Inconsistent Statements to IMPEACH only:

? Amanda Allen Accident

? JJ said light red for AA at scene ? JJ says on stand light was green

? Lawyer cross-examines JJ on prior statement, to show inconsistency, NOT to show light was red

Protip: Can never know whether something is hearsay unless you know what it is being offered for.

If the purpose of the testimony is served just by the fact that the listener heard the statement and could have believed the statement, the actual truth of the statement is not in question.

Problem 7.1: Affidavit(370)

? Civil Claim for injuries due to rollover accidents

? E: Affidavit of former employee, tests showed rollovers with this car ? #1: Is it an out of court declaration?

? YES: affidavit is not witness testimony

? #2: being offered to prove the facts asserted in it?

? YES: offered to show they did tests, which showed rollover hazard

? #3: Is it a “statement”?

? Rule 801a: statement includes oral assertions or written assertions

? Result: HEARSAY!

Problem 7.2: Gesture(371)

? E: W tells about gesture after asking about bike ? #1: out of court conduct?

? YES

? #2: offered for the truth?

? YES – to show D short of cash

? #3: is it a “statement”?

? Rule 801a: also includes nonverbal conduct if intended by the person as an assertion ? Result: HEARSAY!

Problem 7.3: Quoting Herself (371)

? Robbery victim testifies about lineup “He’s #3!” ? #1: out of court declaration?

? YES: statement made at the lineup

? #2: offered for the truth?

? YES – to show robber (D) was #3

? #3: is it a statement?

? Rule 801a: statement includes oral assertion

? BUT its W’s own statement – result?

? No difference: See AC note

? Result: HEARSAY! (but see 801d1C)

Horse Thief Problem 7.6 (372)

? D charged with theft for selling horses

? E: D wants to introduce evidence of statements of PP, who said he was trying to sell them

? Purpose: reasonable belief that PP owned them ? Hearsay?

? Result: Not hearsay, for this purpose! Effect on the listener not the truth of the statement

U.S. v. Washington, 4th Cir 2007 (Prob. 7.4) (371) ? E: printout from machine about blood test

? D.A.: why is this NOT a statement?

? Statement = declaration of “a person” (801a)

? D/C: why is this a statement?

? Contains clear input from humans, not 100% machine ? Is this hearsay?

? Result: 4th Cir: Not hearsay, no statement of a “person” ? NOTE: significant disagreement on this issue

Shallock v. Heinze, Video Clip #26 ? E: P is on stand, discussing reporting the misconduct

? 2 purposes: 1)Employees’s fearful, and 2) Notice to Office ? If offered to show P & others fearful of D, hearsay?

? YES: that is the truth of the matter asserted

? If offered for NOTICE, is it hearsay?

? NO: offered for alternative purpose besides truth

? If allowed for 1 purpose, not other, result?

? Rule 105: LIMITING INSTRUCTION

? Result: admit subject to instruction

U.S. v. White, 6th Cir 2004 (Prob. 7.8) (373) ? Charge: fraudulent customs declaration ? At Customs: #1: “I didn’t get anything else”

? #2: “I have more items to declare”

? “I did not buy anything else abroad”: hearsay?

? No – offered because it is NOT true

? “I have more items to declare”: Hearsay?

? NOT offered for the truth

? Act of declaring is a VERBAL ACT: did try to declare the items and didn’t get a chance

? Result: not hearsay, for these purposes

Hearsay: Assertions

-Article, Judson Falkner (p. 374)

Assertion: Message intended to be communicated from one to a known audience.

Hearsay does not include nonassertive nonverbal conduct. -Ex1: People on street with umbrellas –not asserting it is raining. -Ex2: Truck moves at green light – not asserting light is green, just going.

Nonverbal conduct is assertive ONLY when intended to substitute for the words of expressing the matter stated. (ex: Man asked why he doesn’t fix car rubs fingers in the money gesture)

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