EVIDENCE OUTLINE AIKEN FALL 2004

Transcription

1 EVIDENCE OUTLINE AIKEN FALL 2004 Evidence = 1. What I bring to court as proof 2. The rules that govern the admissibility of the evidence 3. What has been admitted into evidence - Direct = what is heard, smelled, saw that does not require an inference to tie it to the case - Circumstantial = requires an inference 5 reasons for rules of evidence: - Mistrust of juries jury can t handle hearing it, jury will use the evidence wrong (eg. hearsay) - Substantive policy relating to the matter being litigated (eg. presumptions) - Substantive policy unrelated to the matter being litigated (eg. privilege) - Ensure accurate fact finding litigants in the court must be careful (eg. authentication) - Pragmatic, Efficiency make sure the trial flows, judicial efficiency (eg. judge controls order of evidence, can t ask your own witness leading questions unless the witness is incompetent) Rule 103 = Rulings on Evidence = how objections will be viewed on appeal Role of objections: - Judge must decide whether objection is sustainable or should be denied - Forestall error in the immediate trial - Preserve error for appeal o Failure to object waives error - Strategic advantage slow the other side down and break the opponent s flow Plain error = attorney need not make an objection to preserve appeal; has to affect a substantial right (usually the outcome) Proffer = offer of proof; made after losing an objection - Lets the trial court hear what would have been - Has to include the nature and content of the evidence - Through testimony or the lawyer s description of the testimony or the object itself - Done outside of the hearing of the jury Rule 104 = Preliminary Questions a) General admissibility - Court not bound by rules of evidence in determining a piece of evidence s admissibility - Preponderance standard b) Relevancy conditioned on fact:

2 - Admitted upon, or subject to, introduction of evidence sufficient to support a finding of the fulfillment of the condition o Sufficiency test = very low standard - Can consider only admissible evidence c) Hearings on evidence conducted outside hearing of jury Foundations set of elements that must be shown to make the evidence admissible - In order to admit what looks like hearsay under an exemption or exception, one has to prove the necessary conditions are present. - These are usually fact questions, normally for the jury, but because they determine whether the evidence can be heard or seen by the jury, the judge is charged with that fact determination. FRE 104 standard of proof = preponderance of the evidence o 104(a) = Questions of admissibility generally. Preliminary questions of admissibility generally concerning the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b). In making its determination it is not bound by the rules of evidence except those with respect to privilege. o 104(b) = Relevancy conditioned 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. RELEVANCE Rule 401. Relevance - Relevance: any tendency to make the existence of any fact o To what fact is this potential evidence addressed? - Materiality: fact that is of consequence to the determination of the action o What is the issue in the case? Is that a fact of consequence to the issue(s) in this case? Is there a relationship between the fact and the issues and facts of the case? o 3 kinds of facts of consequence: Direct evidence of claims and defenses Circumstantial evidence of claims and defenses Evidence that bears circumstantially upon the evaluation of the probative value given to the other evidence in the case, i.e. credibility, demeanor, impeachment, background information o Facts of consequence change as each witness testifies o Largely dependent on what the substantive law is - Probative value: more probable or less probable than it would be without the evidence o Does this potential evidence make the fact more or less probative than without the evidence? = minimum threshold The evidence does not necessarily have to prove the fact it is intended to prove.

3 Remoteness = Evidence is remote when it is so removed in time or circumstance from the proposition to be proven that it is deemed unusable for the case. Immaterial if: - It is evidence which helps prove a proposition but not one at issue in the case - It is evidence that is of so little help in proving a proposition at issue as to be not worth hearing. Evidence may be seemingly relevant but suffer in value so to be excludable. Conditional Relevance = relevance of an item depends on the existence of some other fact or condition, in the absence of which the evidence would be irrelevant - Do you really know enough facts to make the evidence relevant? Are there unstated facts that you are taking for granted but must be proven for the evidence to be relevant? - Judge decides whether piece of evidence in question will be admitted before antecedent fact or condition is proved. Admit it subject to proof. - Steel blade example in order for the blade to be relevant, it must be proven that the blade came from the tractor that the P contends injured him - Battered women s syndrome example defense counsel s argument should be that there is no evidence that the plaintiff has battered women s syndrome o Must be a history of battery the history is a condition precedent. o Limiting instruction expert testimony should only be considered if you should find that this women is a victim of domestic violence Not good for defense attorney because the seed of battered women s syndrome is planted in the jury s mind, likewise, the jury has to consider all the other examples of domestic violence. o No limiting instructions, just the judge will not allow the witness testimony until a sufficient amount of proof of domestic violence is put in front of the judge not jury. RULE 403 = Confusion and prejudice caused by relevant evidence - Probative value is substantially outweighed by: o Danger of unfair prejudice The fact that it may hurt the other side s case doesn t make it unfair the jury must use the evidence unfairly: Exaggerating the probative value = Old Chief Causing the jury to disregard certain issues Using the evidence for an improper purpose causing the jury not to like the party because of some bad act they did earlier o Danger of confusion of the issues o Danger of misleading the jury o Considerations of undue delay o Waste of time

4 o Needless presentation of cumulative evidence o Balancing Test = If an alternative is found to have substantially the same or greater probative value and a lower danger of prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. - Person opposing the evidence must make the objection not a threshold that must be met by the person offering the evidence. - Probative value = Cultural; from whose perspective is the evidence probative? o Josie Smith woman killed and all the stocking tops cut off of her stockings; Winston accused of murder b/c cops find stocking tops in his drawer although none of them match Josie s stockings Probative value low if Winston is black b/c black men use stocking tops to fix their hair - Probability evidence o Product rule may be given more weight than other evidence because of the presentation by a mathematician Do we know the person is from Walhalla? Do we know the witness descriptions are accurate? Statistics can be misleading, but is not always - Graphic depictions o It may inflame the jury. o Pictures don t prove that the defendant did anything jury could be preoccupied with the gruesomeness of these pictures. o Jury likely to rule based on emotion not fact. - Reenactments o Scientific Evidence attempts to recreate the events that occurred Is the scientific experimental evidence sufficiently similar to the event in question so to avoid misleading the jury? Can the jury judge the significance of the differences? Can the difference be cured by a clear jury instruction? Critically viewed by most courts o Day in the life accident victim wants to put a video on of the way her life was before the accident Emotional response must substantially outweigh the probative value of the evidence. Jury members must be more likely to judge based on their emotions than on the fact. Usually are admissible not like scientific reenactments that are more critically viewed - Curing Prejudice o Limiting Instructions = tell the jury how they can and cannot use the evidence o Stipulation = parties agree that this fact has been proven o Admitting Liability and Reducing or Eliminating Relevance

5 Defendant was a drunk driver who wants to reduce the damages he is liable for. Admit liability, but being drunk is not relevant to damages. Therefore, the plaintiff will not be able to present evidence of his drunkenness. - Old Chief Language that is actually cited when the case is cited o A criminal may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it. o The prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story. o A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. Similar Happenings Evaluating Relevance of Similar Happenings - Determine relevance under Rule Evaluate under Rule Both evaluations require a substantial similarity of operative circumstances o Examples: One party is litigious sometimes evidence of prior lawsuits is ok Prior insurance claims on arson Fair Market Value for Houses based on sales of similar houses Product liability relevant to notice, dangerousness and causation to show previous examples of damages caused by a similar product Prior Dealings - Problem 4-10:Spoiled Shrimp Prior contracts that did not deal with shrimp to prove requirements of contract that does deal with shrimp o Same parties not always necessary in contracts o Not same product, but both shellfish o Same pattern or practice? probably was how they are going to ship it o Look for similar operative circumstances Same parties? Same product? Same pattern or practice? Lack of Similar Occurrences - Problem 4-11 Double Decker no one has been injured in 5,000 previous rides on the Double Decker assumption = no complaint means no accident o Look to see if there have been no other accidents or just no other complaints o Look to see if probative value is inflated: Lack of prior accidents does not resolve the issue of whether the ride was safe

6 o Definitely relevant Is the jury likely to inflate probative value? Usually, these cases fall prey to a 403 objection Authentication Rule 901 Requirement of Authentication or Identification - Authentication = A showing that a thing is what it purports to be. o The party offering the exhibit need only offer evidence that is sufficient to justify a finding that the thing is what it purports to be. very low threshold o The judge only determines whether a reasonable jury could find the thing to be authentic - Examples: o Testimony of witness with knowledge o Nonexpert opinion on handwriting business associate for example o Comparison by trier or expert witness with specimens that have been authenticated o Distinctive characteristics in conjunction with circumstances o Voice identification o Telephone conversation - recognition of the voice and how witness knew the voice; testified you dialed a number identified with this individual and they picked up the phone o Public Records or Reports o Ancient documents or data compilation o Description of process or system used to produce a result and showing that the process or system produces an accurate result o Computer Records usually need an expert; must show reliability o Foundation This foundation may require the testimony of a certification authority unless there is a stipulation that the person in question is the owner of the public key The CA verifies that a person owns a particular public key (an identifying certificate) The recipient received the message in question Recipient used the senders public key to decipher the message The key unscrambled the message The message identified the key owner as the sender o Caller ID Foundation Can usually get judicial notice that Caller ID is reliable Prior to the telephone call in question, the user acquired and installed caller ID This caller ID unit is reliable On this occasion the caller ID displayed a particular number The telephone number belongs to a particular person or business o Photographs

7 Foundation: Competent witness says that this is a fair an accurate representation of the thing portrayed No need for the photographer (assumption: the process is reliable and un-dynamic.) Can be admitted for a limited purpose if different, i.e. shows the scene but does not reflect the lighting at the time of the event. May be disallowed if distortions in the photograph make it misleading o Digital Evidence = easily modified; may need an expert to authenticate Rule 902 Self-Authenticating - To avoid making it necessary to call a bunch of witnesses to authenticate - Just hand it to the judge and cite the rule - Examples: o Domestic Public Documents Under seal and not under seal o Foreign Public Documents o Certified Copies and Public Records o Newspapers and Periodicals o Trade inscriptions and the like a diet coke bottle If critical information is above and beyond trademark, then more info is necessary to make it relevant o See rule Best Evidence Rule Not evaluative Better called The Original Document Rule When does the Rule apply? - If one can get from testimony to conclusion sought without the writing, then the Best Evidence Rule does not apply. if the writing is merely corroborative then the rule does not apply - If the writing is central to the litigation, or there is importance in bringing the precise words of the writing before the trier of fact to avoid the danger of mistransmission, then the original writing is required. o What are we trying to prove? If we take the writing out of the mix can we still prove it, even if just with testimony? Is the writing the central issue? - Videotapes, audio recordings, photographs, stone etchings = writings Rule 1002 = requires the original Rule 1003 = a duplicate can be used the same as an original unless there is a genuine question as to authenticity or it would be unfair to allow the duplicate - Unfair = in discovery, you ask for something and they say it s lost. Then at trial they present a copy that s not fair.

8 Rule 1001 = definitions Rule 1004 = when the original document rule will be waived No original necessary if: - Original lost or destroyed - Original not obtainable - Original in possession of opponent - Collateral - Problem 19-6 and 7: Sweet Suit breach of contract involving the sale of chocolate bars, sole issue was whether the number of bars stated in the contract was 3,800 or 38,000 o Duplicate is fine : original was destroyed in rainstorm duplicate is fine : All Business Duplicate of a photograph taken of a famous person on the boat o Not a best evidence problem because other evidence could be used The Competency of Witnesses Rule 601 = Presumption of competency - Dead Man s Statutes = rule of competency disqualifying an interested party from testifying about transactions or communications of a dead opponent o Jury can t make evaluation of who is telling the truth o 7-3: Dead Again and Again not barred if just testifying about the terms of the contract b/c Statute only deals with oral transactions o Best evidence question o Per se inadmissible? o Some states have them, some do not - Competency = Understand what it means to be truthful o Distinguish competency from credibility The Habitual Drug Addict can testify under FRE 601 Goes to credibility not competency Addict doesn t know the difference between right and wrong problem because the witness must know the difference between truthfulness and untruthfulness Purse snatching 20 yards away witnessed by deaf and blind 102 year old man witness can testify Credibility not competency issue - Child witness = does this person have an appreciation for the difference between telling the truth and lying and that truth should be told on the witness stand? - Hypnosis: Problem 7-4 Hypnotized person who didn t remember the robbery until she had been hypnotized by a certified police neuropsychologist, then she remembered the robbery and identified the defendant as the robber o Seems like a question of credibility not competency

9 o In CA Hypnotic refreshed testimony about events that she has been refreshed on is per se inadmissible o Somewhere between 601 and 602 (personal knowledge) Rule 602 = Personal Knowledge - 7-5: Robbin the Hood Robbin s wife testified that he was despondent before the day that he is accused of robbing the bank o Description of his despondency is allowed because that is personal knowledge based on her own observations Rule 605 = Competency of Judges as Witnesses - Total Bar for Judges in the cases in which they sit and no objection is needed if a judge testifies this error is automatically preserved for appeal without an objection - What about other court personnel? Problem 7-6 o Bailiff He shouldn t be able to testify for the same reason that the judge should not be able to testify o Classic 403 prejudice argument captured by the spirit of 605 o Court Reporter same argument as Bailiff o Best friend goes to credibility not competency o Attorneys? Rules of Professional Conduct Rule 606 = Competency of Jurors as Witnesses - What are the limits? trying to limit to secretarial errors - Juror brings in a knife could be prejudicial - Juror can only testify as to what happened not as to how it influenced juror s vote - Juror should be able to testify about this - Juror walks with a limp to prove that a witness is lying could be extraneous prejudicial information o Juror may be able to testify about this when the experiment purports to give an answer, then there s a problem o Juror makes statement that these people are violent strictly opinion and juror may not testify about this The Examination of Witnesses Direct and Cross Examination Rule 611(c): The Rules for Direct - No Leading Questions on direct except as may be necessary to develop the witness testimony development questions like you live at 1223 Washington in St. Louis, right? are ok. o Allowable to create a foundation - Direct questions should not be compound or call for a narrative - If a question has been asked and answered, it should not be asked again on direct temptation to do this because the more often someone hears something the more likely they are to believe it is true. - Common Objections:

10 o Leading Does it call for a yes or no answer? Does it begin with Did or Does? Does it assume facts not in evidence? o Asked and answered o Compound questions o Assuming facts not in evidence o Argumentative o Calls for speculation asks someone to either read someone s mind or make a judgment about facts that is an opinion that the jury should make o Non-responsive witness does not answer your question o Narrative (or Calls for a Narrative) Rule 611 (b): Scope of Cross - Funnel Questioning: Scope of cross is generally tied to the scope of direct examination. All inferences and components of the subject matter covered on direct examination, plus the credibility of the witness are fair game on cross. - Wholly new substantive matters are not the proper subject of inquiry. Impeachment Intrinsic = occurs during the examination, from the witness mouth Extrinsic = outside of the mouth of the witness - The need for extrinsic evidence generally arises when the impeached person denies the impeaching question and the impeacher would like to prove the impeachment. - The Collateral Matters Rule = If extrinsic impeachment evidence is offered, it must be either in the form of reputation or opinion or go to some additional issue beyond the witness general propensity for truthfulness, such as bias, a fact in issue, testimonial capacities, or conviction of a crime. If not, it is inadmissible as a collateral matter. Good faith = must have good faith reason to impeach Rule 607 = The credibility of a witness may be attacked by any party, including the party calling the witness. - Draw the Sting = impeach your own witness before the other side does it to lesson the impact on your case Impeachment Techniques: a. Contradiction = the witness testifies to something today that is inaccurate from something she said earlier today. Therefore she is not a good truth-teller generally and should not be believed. b. Bias = any form of corruption, influence, prejudice, interest, etc. that can cause a witness to favor or disfavor a party or its position. - Showing that the witness is disposed against the person against whom the witness is testifying;

11 - Showing that the witness is disposed toward the party for whom she is testifying. c. Rule 609 = Felony conviction not just accused or charged with a felony - Permits: o Prior felonies to be used to impeach witnesses subject to 403 = assumes admissibility o Prior felonies can be used to impeach the accused if probative value outweighs prejudice gives force to presumption of innocence = assumes inadmissibility 609 = Does prejudice outweigh the probative value? Only applies when the witness is not the accused and when the crime is a felony or punishable by more than 1 year in jail NOT a 403 because 403 requires substantial outweighing and because the showing about prejudice in a 609 must occur before the use so the proponent has the burden in a 609 whereas the opponent has the burden in a 403 How old is the crime? If something is older than 10 years, we presume it is not an impeachable offense. Determined by the date of release from incarceration What is the punishment for the crime? Crimes punishable by less than 1 year in jail can t be used Doesn t matter how much time the person actually served, it only matters for how long the crime is punishable Probative of truthfulness or honesty? most crimes are Crime the same or substantially different from the one charged? Effect of defendant s willingness to testify? Luce v. United States: The Supreme Court held that if a defendant loses a motion in limine (prior to the trial) to exclude a prior conviction and then does not testify, the defendant cannot complain on appeal. It is impossible to assess prejudice until the scope of the testimony is seen and to find otherwise would allow defendants to o plant reversible error into the record. Crimen falsi = Crimes involving dishonesty or false statement can be used to impeach anyone, regardless of punishment. Difference between witness and criminal accused ok against witness, but not against criminal accused By that phrase, the Committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretenses Where it s not completely obvious that the crime was one of dishonesty, there used to be a mini-trial outside the hearing

12 of the jury to determine whether the crime is one of dishonesty or false statement Proposed change in rule = Amendment would permit automatic impeachment when an element of the crime required proof of deceit No more mini-trial It would also allow automatic impeachment if an underlying act of deceit could be readily determined from such information as the charging instrument. Amendment deletes the indefinite term involved - Does not permit: o Crimes over ten years old from date of conviction or release from confinement (unless court allows for good cause and there is notice) o Crimes that are subject to annulment, pardon or certificate of rehabilitation o Juvenile convictions of the accused d. Rule 608 = Prior bad acts - can be used to get around 609, but juries give more weight to convictions than mere bad acts themselves - Permits (with some limitations): o Reputation or opinion evidence about character for truthfulness on direct examination someone calls a witness to testify that another witness or party is truthful or untruthful in their opinion o Specific acts that are probative of truthfulness when inquired about on cross-examination may NOT be proved by extrinsic evidence Can only talk about convictions not arrests or expulsions (can t use consequences of act, only the act itself) Did you lie on your income tax return last year? = ok; Were you arrested for lying on your income taxes last year? = improper impeachment Example: Witness lied on his mortgage application the mortgage application (extrinsic evidence) may NOT be used to impeach witness because it goes only to the witness s propensity to tell the truth - Does not permit: o Acts proven by extrinsic reputation or opinion testimony not relevant to truthfulness o Character evidence as to being a truthful person before credibility has been attacked = no pre-emptive bolstering of witnesses relevance problem o Arrest, charge, indictment, expulsion, suspension this is about acts of other people in response to witness, not the witness s act o Specific act evidence when only probative of truthfulness - Must have good faith belief that event took place e. Testimonial capacities - Ability to be accurate/to perceive - Incentive to lie in this case - Memory

13 - Knowledge - Perception - Sincerity - Extrinsic or intrinsic evidence = ok - Questions about schizophrenia = ok; questions about depression = maybe not f. Rule 613 = Prior inconsistent statement - In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request, the same shall be shown or disclosed to opposing counsel. - Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. (Admissions not covered) o If you know for sure that the witness said something different to a policeman, you can either let the witness testify fully and later call the cop to refute the witness, but the witness gets a chance to take the stand and explain himself or ask the witness about it while he is testifying - Example: o You said I don t know before, now you say the car was traveling at 40 mph Inconsistent o You said The car was traveling at 40 mph before, now you say you don t remember NOT inconsistent o By Stander testifying on direct examination by plaintiff The plaintiff s Mazda was traveling about 25 m.p.h. when it was struck by the defendant s Buick. Didn t you tell the investigating officer that the plaintiff s Mazda wasn t going much faster than 20 m.p.h. just before the accident? not inconsistent and not admissible Didn t you tell the investigating officer that you couldn t remember how fast the plaintiff s Mazda was going just before the accident? inconsistent Isn t it true that Ahn Looker told the investigating officer that the plaintiff s Mazda was going at least 35 m.p.h. just before the accident? not the same witness, not inconsistent statement Didn t you tell the investigating officer that you re not too good at judging the speed of cars? inconsistent Isn t it true that you lied about a year ago about stolen computers? not inconsistent Didn t you tell the investigating officer that the defendant s Buick entered the intersection with the green light just before the accident? not inconsistent

14 o How fast was the defendant s car going just before the accident? I don t remember Didn t you tell the investigating officer that the defendant s car was traveling no more than 30 m.p.h. not inconsistent just forgotten - Impeachment by omission didn t you say that at the deposition and didn t I ask you to include all of the details and now you didn t say that o Impeachment by omission requires two statements: one preceding trial and one during it. The trial witness prior statement omits one or more facts testified to at trial. The inference drawn from this embellishment is that the factual additions at trial suggest dishonesty. Rule 612: Refreshing Recollection - Can use anything to refresh a witness recollection either while testifying or before their testimony fiction in the law is that the person is now testifying from present memory refreshed not testifying from the thing used to refresh the memory. o Need not be independently admissible o Witness can NOT read from the paper must give it back to you first - If necessary, an adverse party is entitled to have the writing produced at the hearing, to inspect, to cross-examine the witness thereon, and to introduce into evidence those portions that relate to the testimony of the witness. - No need to authenticate Rule 610 = Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness credibility is impaired or enhanced. - Can t ask someone if they are a good Christian or if they are a Muslim to draw inferences about their credibility positively or negatively - Can call a Catholic priest as a character witness, but you can t ask the priest if he attends mass regularly Rehabilitating the Witness = after the witness s credibility has been attacked you may offer extrinsic evidence of the witness s truthfulness - Subject to 403, waste of time, objection - 608(a): Evidence of truthful character is only admissible after the character of the witness for truthfulness has been attacked - 801(D)(1)(B): Prior consistent statements are only admissible if offered to rebut an express or implied charge of recent fabrication or improper influence or motive...

15 Other Exclusions of Relevant Evidence Rule 407: Subsequent Remedial Measures = subsequent to the injury - Cannot be offered to prove: o Negligence o Culpable conduct o Defect in a product o Design defect o Need for warning or instruction - Can be offered to prove: o Ownership o Control o Feasibility of precautionary measures, if controverted = huge hole as a practical matter all you have to do is ask could the thing have been safer? if answer is yes, sit down if the answer is no, feasibility is controverted Objection to this is that the other side is trying to subvert rule 407 Measure was prohibitively expensive Example = shields on bulldozers o Impeachment - If remedial measure was taken by a third party, then it may be admissible but not to prove liability only to prove ownership - First step of a remedial measure is protected proof that a study was conducted is inadmissible even if the actual measure was not taken - Must be subsequent to be protected = accident occurs on May 31; letter concerning faulty brakes is sent on May 30 and arrives June 3; letter may be used to prove design defect and liability b/c it was not sent subsequent to the injury Rule 408: Compromise and Offers to Compromise rules want to encourage compromise - Furnishing, offering or accepting or promising to accept valuable consideration - To settle a claim which was disputed as to validity or amount o Only when there is a dispute, is the statement protected. If client admits wrongdoing and promises to pay whatever the amount ends up being, then there is no dispute as to validity or amount and the statements are NOT protected. - Is not admissible - This includes statements or conduct (nodding head) made in compromise negotiations o At common law, anything said outside of the offer was not protected, but now it is. - Admissible Compromise Evidence

16 o Evidence otherwise discoverable o Evidence offered for another purpose such as: Proving bias or prejudice of a witness Negating a contention of undue delay Proving an effort to obstruct a criminal investigation or prosecution - Use against a compromising party, not admissible; - Use by a compromising party, then admissible; - Use against a non-party to impeach, admissible subject to Scope of the Impeachment Exception to FRE 408 o The amendment would prohibit the use of statements made in settlement negotiations when offered to impeach a witness through prior inconsistent statement or through contradiction. o The Committee concluded that this position is more consistent with the underlying purpose of the Rule to promote uninhibited settlement negotiations. Rule 410: Inadmissibility of Pleas - Covers: withdrawn guilty pleas, plea of nolo contendere, statements made during plea negotiations with an attorney for the prosecuting authority which do not result in a plea of guilty or result in withdrawn plea. - Prosecuting authority must be present - Inadmissibility of Pleas, Plea Discussions and Related Statements o Was the statement made during the course of plea discussions? o Was a prosecuting attorney present? o Is the statement offered against the defendant who participated in the plea discussions? - Can be waived: o Allowed in perjury prosecution Rule 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. - I m really sorry; I was preoccupied, and our collision was all my fault. If you don t bring suit, I ll pay for your medical expenses and your ripped pants. o Admission of guilt is admissible, but offer to pay medical expenses would not be admissible Rule does not cover all statements and no dispute necessary o Ripped pants = NOT similar expenses occasioned by an injury Similar = similar to hospital or medical expenses = costs of getting to the hospital or doctor; inconvenience of driving; in home helper Admissible

17 Oh Mac! I hope you re ok. Why don t you go to the Mellon Hospital, and I ll pay for the check-up? o Protected o Look, I don t want any trouble. I admit I was not looking when I ran into Mac; I was in a hurry. If I gave Mac $1000, would this whole thing go away? Settlement attempt dispute as to amount Rule 408 captures all of the statements o Sought plea bargain which he would admit guilt if he received a suspended sentence, but the prosecutor rejected bargain. Inadmissible Rule 410 Rule 411: Liability Insurance - Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully - Weak inferential link people who carry insurance are more likely to act negligently than people who do not D forgot to buy auto insurance o Are you a careful driver? seems like character evidence o What is your motive to be a careful driver? Then lawyer wants to proffer that he will claim he is a careful driver b/c he doesn t have insurance. Inadmissible - Admissible if offered for other purpose: o Agency o Ownership o Control o Bias o Prejudice of a witness Character Evidence Continuum of Character Evidence: - General character: likely behavior across many different sorts of situations propensity bar - Character traits: behavior in a narrow set of circumstances propensity bar - Non-character specific acts under Rule 404(b): behavior in even more narrow circumstances = he tends to kill women and put them in bathtubs not barred when used to prove certain things - Habit: covered by Rule 406 = very specific response to very specific circumstances admissible

18 Rule 404(a) = Propensity Bar = Evidence of a person s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. - Is the sole relevance of this evidence based on the idea that he did it before, therefore he was more likely to have done it again? - The many forms of character o Specific acts to show untruthfulness on cross examination to show that witness doesn t really know what they re talking about o Opinion/Reputation testimony regarding untruthfulness or truthfulness or a pertinent trait offered by the accused re self or victim and rebuttal by prosecution o Specific acts and/or opinion reputation when an element of the offense or defense. - Propensity = the circumstantial use of character evidence to prove conduct on a particular occasion. o Previous conduct being referred to (usually specific) o Offered to prove character for that kind of conduct o Offered to prove conduct on this occasion - Exceptions to the Propensity Bar o Mercy Rule = The Character Evidence Offered by a Criminal Defendant (and then Rebutted by the Prosecution) Reputation or opinion on direct 405(a) Specific acts only on cross 405(a) If defendant says he was never disposed towards crime, can the prosecutor offer evidence that defendant accepted stolen goods 20 years ago? Yes. 405(b). Character is an element of the crime, not offered for propensity but for proving the element of the crime o Character of Alleged Victim 5-10 Violent Victim D charged with attempted homicide on victim. D offered evidence that the victim was a violent person. Can prosecution offer evidence that the victim: Had a reputation among students in her night-time GED program as a peaceful woman? admissible under 404(a)(1), could be a problem with fact that it wasn t a broad enough community Was, in opinion of her co-workers at McDonald s, a peaceful woman? admissible, but still a problem with the broadness of her community o Still have to establish the relevance of the community even for opinion Despite being punched in the face by a neighbor, had never defended herself or retaliated with violence? inadmissible on rebuttal b/c it is meant to prove propensity, can be brought on cross to repute reputation evidence that she is violent

19 o The Character for Truthfulness of a Witness See 607, 608 and 609 above What is the relevance of each piece of evidence offered? Distinguish act propensity for truthfulness and act propensity for other character traits What specific acts indicate a lack of truthfulness? Rule 608(a): The credibility of a witness may be supported by evidence in the form of opinion and reputation (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. Credibility evidence = a special type of character evidence dealing with the propensity of a witness to be truthful. o When Character is in Issue an element of a claim, cause of action or defense calls for proof of a person s character trait or disposition; eg. character is an element of the crime, claim, defense, etc. Prove with reputation, opinion, specific acts 405(b) Examples of Character in issue: Defamation= a material misrepresentation of fact published to others causing damage to the plaintiff. Entrapment Negligent entrustment Negligent hiring Seduction 5-11 D charged with possession with intent to distribute cocaine. D admits to possession but claims to be entrapped. State uses subjective test of entrapment, which asks 1) whether the police induced or created the crime and 2) whether the defendant was predisposed to committing the crime charged Testimony of D s father stating that his son would never violate any criminal laws whatsoever. To the father s knowledge, his son had only once violated the law when he stole a ball at the local five and dime. admissible b/c propensity = element of entrapment Opinion that D is an honest person. admissible if offered to prove law abiding but not if offered to prove truthfulness b/c you cannot bolster (could offer to prove truthfulness if truthfulness was questioned) D was arrested for the possession of marijuana fifteen years prior to trial. admissible - Act vs. Mental Propensity o Rule only precludes character evidence offered to prove that the person acted consistently with the character trait on this particular occasion. o If offered to show an internal state, then it does not offend the rule.

20 o The literal language of Rule 404 bars evidence of character or a trait of character to prove action in conformity therewith on a particular occasion. Action implies acts not mental states. o Even though there is debate, most courts and commentators believe that Rule 404 does not prevent evidence offered to prove that a party experienced a mental state in conformity therewith on a particular occasion. o 5-3 The Negligent Driver Jane lent car to teenager, Murray, who had a well-known reputation for driving recklessly. Murray s parents sue: Evidence of Murray s reputation as a reckless driving admissible b/c it shows that Murray had a reputation for recklessness which attempts to prove that Jane knew she was lending her car to a reckless driver. Evidence of Murray s specific acts of bad driving still admissible What if no evidence is offered that Jane was aware of Murray s reputation of his prior instances of negligent driving? acts could go to prove she should have known, but reputation is definitely admissible b/c it certainly goes to prove she should have known Murray survives and is charged with reckless vehicular manslaughter. Reputation as a reckless driver not admissible b/c it is propensity evidence Reputation as a speeder not admissible b/c it is propensity Specific instances of tailgating not admissible b/c it is propensity and b/c it is not relevant to whether he was speeding Specific instances of speeding not admissible b/c it is propensity even though the relevance issue is fixed Murray was not aware of speeding b/c speedometer was broken. Now can the above evidence be brought? Reputation as a reckless driver still inadmissible Specific acts of prior speeding relevant b/c a person with 6 tickets for speeding is more likely to be aware of his speeding o Not relevant to character, relevant to awareness admissible on rebuttal b/c the defendant has made awareness of speeding an issue Rule 405 = Methods of Proving Character - when it is an issue in the case, one can use any method to prove, but when it is admissible under 404, it has to be in the form of opinion or

21 reputation on direct and specific instances are only allowed on cross - Rule 405(a) = when character is admissible, can be shown by reputation or opinion testimony on direct. On cross, inquiry into specific instances of conduct is allowed - Rule 405(b) = when character is an essential element of the charge, claim or defense, can use specific instances of conduct Rules 412, 413, 414 and 415: Sexual Character Evidence Rule 412: Presumptively Inadmissible Evidence - Rule 412(a) creates a general rule against admission of evidence offered to prove: o The alleged victim engaged in other sexual behavior o The alleged victim s sexual predisposition - Pertinent has to have more probative value than relevant being an exhibitionist is not pertinent to consent o Time and culture specific - When are you dealing with sexual predisposition and when are you dealing with acts relevant to the case at bar? o Predisposition = what kind of person one is generally o Is the evidence related to sexual predisposition? Sexual connotation for the fact-finder? o Low cut dress = sexual connotation based on how she dresses o Drunk = inebriation may be relevant to the specific D o Dancing with D= excluded from rule 412 b/c that is behavior directed toward the D which is excluded in a criminal case = admissible Dancing alone or dancing with others = barred by rule If Sarah calls a witness, can the witness be cross-examined about her provocative dress on the night of the alleged rape? o No 412 objection b/c witness is not an alleged victim, but there is a strong 403 relevance argument. What if she was raped by him in the past? 412 applies now b/c any victim means any victim at any time not just the alleged victim. - Applies in any civil or criminal proceeding involving alleged sexual misconduct. - It protects any alleged victim. Just talking about sex is not enough, the person must be a victim and that fact must be relevant. - Balancing test probative value must SUBSTANTIALLY outweigh the danger to victim (the danger is presumed to be high. o Leaving this to the discretion of judges is ironic b/c the rule was meant to overcome cultural prejudices against women and judges are just as susceptible to the prejudices as anyone else.

22 - In Civil Case 412(b)(2) Test = does probative value of the evidence substantially outweigh the danger of harm to any victim and of unfair prejudice to any party. - Problem 5-37 Toby Wyatt issue = consent? o Medical records including possible attempted suicide? relevance = someone who has committed suicide is more likely to engage in selfdestructive activity and is more likely to engage in such activity in the future about consent? does not come up if the medical records show sexually transmitted disease, then 412 does catch it; if medical records include what happened during the encounter with Wyatt, probative value increases and not barred by 412 o Academic records show she is a poor student relevance = a poor student is more likely to be stupid and stupid people are more likely to make false claims No 412 o Psychiatric records show depression and paranoia relevance = someone who is paranoid may not be able to distinguish between reality and fiction and may be more likely to wrongly accuse 403 No 412 o Notes of accuser s conversation with her rape counselor privileged; relevant 412 statements about the particular events might be available to defense to prove order of events or to impeach if she gets on the stand to testify. o Sex with 3 different men within three days asked of the medical examiner conditional relevance = if they are going to assert that abrasions were caused by her previous sexual encounters, they must prove that; 412(b)(1)(A) if evidence is offered to prove that the injuries were caused by other people, then it s admissible under prejudice may outweigh probative value 404 character evidence o DNA evidence of semen that did not belong to the accused found on her underwear to prove person other than accused is the source of the semen admissible 412(b)(1)(A) presumes mistaken identity defense, but Toby said he did have sex with her. Defense wants to offer the evidence to prove she has a bad character which is not admissible Rule 413 evidence of the defendant s commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant can be used as act propensity evidence = no requirement of conviction and allow 30 year old events reported by an alleged victim - Is attempted buttock pinching covered by Rule 413? Yes

23 - What is the relevance of this evidence? person who tries to pinch buttocks at fraternity parties is more likely to derive pleasure from other sexual acts that causes pain - Any other objection? 403 prejudice outweighs probative value b/c pinching buttocks is not closely enough related to rape - What if the defendant asserts he reasonably believed that the victim of the rape was consenting? evidence becomes more relevant b/c perhaps he can t differentiate between consented to sexual acts and non-consensual sexual acts Problem 5-48: The Harassing Politician - Didn t you expose yourself repeatedly to another employee? Not admissible b/c it is not probative of truthfulness o 415 admissible if offered to prove act propensity evidence - Isn t it true that while governor you stole money and cooked the books to get away with it? admissible b/c it is probative of truthfulness o 403 unfairly prejudicial? probably not o He denies it, but can we call an accountant to testify that he did cook the books? No, 608(b) cannot be proved by extrinsic evidence - Consensual affair with another woman that you lied about to the press and other people? admissible b/c it is probative of truthfulness; violating oath of monogamy = probative of truthfulness o He denies it, can we call someone to prove that he did have the affair? No, not under 608(b) s bar on extrinsic evidence as a waste of time - Beat his wife on 5 occasions? inadmissible, beating wife is not probative of truthfulness - Friend testifies that politician never lies after politician testifies (acceptable to bolster as long as politician s character for truthfulness has been challenged): o Can he be asked if politician stole money? admissible o Can he be asked about politician s adultery? admissible even if politician denied adultery b/c it s probative of how well friend knew the politician o Can he be asked about politician exposing himself repeatedly to another worker? No b/c exposing himself to a secretary is not probative of truthfulness and is not probative of the witness knowledge of politician, but may be so close that it would be admissible under act propensity prejudice Allegations of sexual harassment that the boss claims never happened: - Whether he was convicted nine years ago of a felony rape of his then secretary? not stale but risk of prejudice b/c of similarity of conviction; no obligation that probative value outweighs prejudicial effect b/c defendant is not a criminally accused b/c it is a civil case.

24 - Boss denies the conviction Extrinsic evidence can be used to prove conviction; can t call the victim b/c of 403 objection; self-authenticating public record = OK o What details could you elicit? fact that it was his secretary? no b/c too prejudicial and not very probative to his truthfulness which is why the evidence was offered. - What if it happened 11 years ago and resulted in probation? stale if it is older than 10 years from the date of conviction or of confinement (probation is NOT confinement) o If it happened 11 years ago and resulted in him spending 5 years in jail? not stale o Spent 3 years in jail, but was pardoned based upon a finding of his innocence? can t use it if the pardon was based on a finding of innocence, unless there is a subsequent conviction within a short period of time (in which case, the court will use it) o Rape conviction is on appeal? conviction is still a conviction regardless of appeal - Instead of civil harassment trial, the case is a criminal trial, can we admit number 1? exclusion is favored; now we use the balancing formula to determine whether probative value outweighs prejudice - Weren t you recently convicted of a bank robbery that occurred two years ago? admissible - it is probative of truthfulness, but does probative value outweigh prejudice? Yes. o What if he was wearing a disguise, produced a phony identification? attempts to make the crime a crimen falsi in which case there would be no balancing o What if the conviction involved a 15-year-old juvenile adjudication? 2 problems = stale and juvenile; juvenile adjudication are typically inadmissible particularly against a defendant, but will be allowed if the court determines that in fairness the evidence must be admitted 404(b) - Other Crimes, Wrongs or Acts Evidence - Critical Questions When Assessing Admissibility of Other Crimes or Acts Evidence o Is the issue for which the evidence is offered in dispute? o Does the chain of reasoning focus the trier of fact on some purpose other than the defendant s general criminal propensities? - Allows other crimes or acts evidence if the purpose for such evidence is to show something other than propensity such as (list is not exhaustive) motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. o Similar happenings usually in a tort context. - There must be notice of intent to offer such evidence. - What is admitted under 404(b)? o When offered as mental propensity evidence