Character or Impeachment? PRESENTED BY JUDGE KATE HUFFMAN

Character or Impeachment? PRESENTED BY JUDGE KATE HUFFMAN

Evid. R. 401 Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Determining Relevance Does the evidence alter the probabilities of the existence or nonexistence of a fact properly before the court?

Determining Relevance No particular quantum of relevance is necessary. Probative value may be slight or extremely low. Fact must be of consequence to the action. Of consequence embraces the concept of materiality.

Evid. R. 403 (A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.

Is the evidence relevant? In a personal injury trial, Plaintiff seeks to admit evidence that Witness observed a red vehicle cross the center line and hit Plaintiff s vehicle.

Is the evidence relevant? Defendant is on trial on a charge of aggravated robbery with a firearm specification. It is alleged Defendant broke into Victim s home, brandished a gun, and robbed Victims. Defendant asks Victim about Victim s drug dealing activity.

Exclusion of Relevant Evidence Exclusion may be based upon: Hearsay Authentication rules Privilege Foundation Best evidence rule

Relevant Evidence If relevant, opponent must advance a specific exclusionary rule or principle to exclude the evidence. If relevant, the evidence is admitted unless a specific basis for exclusion is present.

Character Evidence When is it admissible? What form may character evidence take? Character v. impeachment?

Character Defined Character is a generalized description of a person s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness. McCormick, Evidence 196 (5 th ed. 1999)

Why Exclude Character Evidence? Evidence of character is powerful and persuasive, but distracts the trier of fact from the main question what actually happened?

Character Evidence Evid. R. 404(a) General rule character or a trait of character is not admissible to prove conformity therewith, except: (1) Evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the accused s offered character evidence. (2) Evidence of a pertinent trait of character of the victim offered by an accused or by the prosecution to rebut accused s offered character evidence, or evidence of the peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

Evid. R. 404(A)(3) Character of a witness related to credibility is governed by Evid. R. 607, 608 and 609.

Evid. R. 405 Methods of Proving Character (A) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (B) Specific instances of conduct. In cases in which character of a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of his conduct.

Reputation and Opinion Witnesses Less dangerous than specific act evidence. Less likely to arouse prejudice or confuse, surprise or waste time.

Foundation for Opinion Q: Mr. Smith, do you know Defendant? A: Yes. Q: Did you know him in January, 2017? A: Yes. Q: How long had you known him at that time? A: About ten years, he lives across the street. Q: Do you have an opinion as to whether he was a peaceful person at that time? A: Yes Q: What is your opinion? A: I think he is a very peaceful person.

Foundation for Reputation Q: Mr. Smith, have you heard the reputation of Defendant in the community where he lives, for peacefulness as of January, 2017? A: Yes, I have. Q: How have you come to hear of his reputation? A: I have heard dozens of people talk about him over the past ten years. Q: What is his reputation in the community for peacefulness? A: He is known as a peaceful man.

Prior Arrests of Defendant Where Defendant offers testimony of character witness relating to Defendant s reputation for truthfulness and nonviolence, the State was not limited to rebutting the evidence with specific incidents resulting in Defendant s conviction. The State could cross-examine the character witness on evidence relating to arrests that did not result in convictions. State v. Hart, 72 Ohio App. 3d 92 (1991)

Pertinent Character Trait Specific instances where character may be an element of a crime, part of a claim, or part of a defense: Self-defense Perjury charge Use of illegal drugs in possession case Slander and libel Wrongful death Negligent entrustment Child custody Malicious prosecution Entrapment defense

Self Defense Defendant, who is charged with felonious assault, calls Friend as a witness. Friend will testify that Victim has a reputation for violence. Is the evidence admissible?

Self Defense A victim s character is not an essential element of a self defense claim. A defendant may not use extrinsic evidence to support a claim of self defense. State v. Hale, 119 Ohio St. 3d 118 (2008)

Pertinent Character Evidence Pertinent character trait of the accused or the alleged victim. Pertinent character trait of the defendant may only be offered by defendant and then rebutted with character evidence by the State. Pertinent character trait of the victim may only be offered by the defendant and then rebutted with character evidence by the State. Evidence of the victim s peacefulness may be offered in rebuttal by the State to rebut defendant s claim the victim was the first aggressor.

Summary of Character Evidence - Victim Opinion evidence of character of victim is limited to reputation or opinion of the victim s truthfulness. Where character of the victim is an essential element of a charge, claim, or defense, specific instances of conduct may be admitted.

Character Analysis Civil or criminal case? Who is offering the evidence? Did the opposing party make character an issue? Who is the offered evidence about? Defendant Victim Witness

Evid. R. 404(b) the prior bad acts rule Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Prior Bad Acts Inadmissible: If the evidence is wholly independent of the charge for which the accused is on trial. Admissible: If the evidence is admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Prior Bad Acts Evid. R. 404(B) must be strictly construed against the admissibility of other-bad-act evidence. State v. Broom, 40 Ohio St. 3d 277 (1988) State v. Shaw, 2008-Ohio-1317 (Second District)

Prior Bad Acts Test for Admission 1. Is the other act evidence relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence? 2. Is the other act evidence presented to prove the character of the accused simply in order to show activity in conformity therewith, or is the evidence presented for a legitimate purpose, such as those stated in Evid. R. 404(b)? 3. Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice?

Appellate Review The admission of other-bad-acts evidence lies within the broad discretion of the trial court, and will not be disturbed in the absence of an abuse of discretion that has created material prejudice. State v. Perez, 124 Ohio St. 3d 122 (2009)

Is the evidence admissible? At trial, Victim testifies that he recognized Defendant when Defendant shot Victim, because he knew Defendant. Victim testifies he and Defendant had previously been in prison together.

Prior Bad Acts Testimony that Defendant fought with both his former girlfriend and her new boyfriend and told them they would pay for what they had done within weeks of their deaths was admissible, as it demonstrated Defendant s motive to kill both the former girlfriend and her new boyfriend. State v. Marshall, 2007-Ohio-6298

Prior Bad Acts Where the identity of the assailant was at issue, and the victim of a sexual assault could not identify Defendant at trial, evidence of Defendant s similar sexual assault on another victim in the same vicinity and near the same time was properly admitted for purposes of identification. State v. Kirby, 2014-Ohio-5643

Limiting Instructions Testimony has been admitted indicating that the defendant fled the scene. You are instructed that fleeing the scene alone does not raise a presumption of guilt, but it may tend to indicate the defendant s consciousness or awareness of guilt.

Is the evidence admissible? In a personal injury suit, Plaintiff seeks to admit evidence that Defendant was at a bar drinking approximately forty-five minutes prior to the time Defendant allegedly ran a red light and hit Plaintiff s vehicle. Defendant claims Plaintiff ran the red light.

Evid. R. 406 Habit Evidence Evidence of the habit or routine must be relevant to prove the conduct on a particular occasion was in conformity with the habit or routine. Corroboration is not required.

Character or Habit? Character general conduct; the product of conscious behavior. Habit specific conduct; the product of automatic response.

Habit Evidence One or two isolated incidents of conduct do not amount to a habit. Habit must result from a stimulus which triggers the semi-automatic response on each occasion.

Habit Evidence Higher probative value than character evidence. Can be highly persuasive as proof of conduct on a particular occasion. Admissible by reputation, opinion, or specific act. Must demonstrate an adequacy of sampling and uniformity of response.

Examples of Habit Routine practices of an organization. Wearing a seat belt. Drinking on the job daily. Locking a door/latching a fence. Driving a particular route. Avoiding being in the presence of a firearm.

Is the evidence admissible? In a criminal trial, Police Officer testifies that he has no specific recollection about an interview with Defendant, but testifies about the manner in which he conducts each and every interview, and specifically about his practices regarding the manner in which he notifies all defendants of Miranda rights, and is prepared to authenticate a written rights waiver signed by Defendant and Police Officer.

Is the evidence admissible? In a negligence suit where Defendant is alleged to have driven recklessly upon exiting his driveway, hitting a school bus stopped three houses down from Defendant s home at 7:00AM, Neighbor testifies that in the evenings Defendant often speeds and drives wildly immediately after exiting Defendant s driveway.

What is the purpose of the evidence? Witness is asked on cross examination: You lied when you told the police that my client ran the red light, didn t you?

Impeachment and Rehabilitation Focus is on credibility The believability of a witness s testimony. The trier of fact determines credibility. The Rules of Evidence provide limitations on methods of attacking credibility.

What affects credibility? Manner of testifying. Substance of testimony. External factors.

Impeachment Evidence Evidence that is not substantive in nature, but instead is offered solely to attack the credibility of the witness.

Why Impeach? The point of impeachment is to impugn a witness s credibility by attacking his ability to perceive the event, recall accurately that which he perceived, or communicate his story accurately, or his desire to testify truthfully.

Is the Evidence for Impeachment Purposes? Is the evidence probative of a witness s credibility? Is there a danger the impeachment evidence may be used prejudicially as substantive evidence?

Evid. R. 607 Who can impeach?

Court s Power to Prohibit Party from Impeaching Its Own Witness Court must consider the other rules of evidence, particularly hearsay and relevance, in managing party s efforts to impeach a witness called by the party.

Means of Impeachment Bias/interest/motive for testifying Perception/sensory defects and mental capacity Truthfulness Criminal convictions/crimes of dishonesty Self contradiction Prior inconsistent statement

Collateral v. Intrinsic Collateral a matter not related to an issue of fact; no extrinsic evidence permitted. Truthfulness Character Intrinsic that which relates to the testifying witness statement of fact; extrinsic evidence permitted. Bias Prejudice Interest Perception Competence Contradiction

How may the credibility of a witness be attacked? Evid. R. 608 Reputation or opinion on truthfulness Specific instances of conduct admissible on crossexamination of the opinion or reputation witness only Extrinsic evidence prohibited

When Extrinsic Evidence is Excluded If the matter is extrinsic, witness must be asked about the specific issue. Inquiring party is stuck with the answer.

Foundational Requirement for Testimony Related to Truthfulness Familiarity with reputation. First-hand knowledge underlying opinion. Within a time period reasonably proximate to testimony.

Specific Acts Probative of Truthfulness Prior use of a false name. Filing false tax returns. Failure to file tax returns. Forgery Omitting a material fact from an official report. Attempts to threaten potential witnesses to keep them from testifying truthfully. Perjury.

Matters Not Probative of Truthfulness Acts of violence. Drug use. Speeding. Filing bankruptcy. Threats against judicial officers in a prior prosecution.

Limitations on Direct and Cross No specific instances of conduct permitted on direct by witness testifying about the veracity of another witness. On direct, knowledge of reputation or opinion only. Specific instances of conduct permissible on cross to test the opinion or reputation testimony. Specific instances of conduct must be probative of veracity.

No bolstering before attack! Opposing party must first attack the veracity of the witness before the party calling the witness may offer opinion or reputation testimony.

Should the testimony be admitted? Plaintiff calls Witness 1 to testify about her observations during surgery performed by Defendant. On cross-examination, Defendant inquires about Witness 1 s memory and perceptions. Following the examination of Witness 1, Plaintiff calls Witness 2, who testifies that Witness 1 has a reputation for truthfulness in the community. Defendant objects.

Proving Bias, Interest, or Motive Personal relationship Financial state Penal interest Potential for gain Fear of a party

When Extrinsic Evidence Is Admissible Party is not stuck with the answer. Witness need not be asked about the issue.

Perception Sensory Defects: See Hear Touch Smell Capacity: Mental illness Dementia Age Language barriers Substance abuse

Should the evidence be admitted? At trial, Plaintiff testifies he and Business Partner signed a contract to form an LLC. Business Partner has denied the entity was formed. On cross-examination, Plaintiff denies that he has any memory impairment. Business Partner calls Secretary to testify that she has observed that Plaintiff often forgets business meetings and forgets about conversations he has had with various persons. Plaintiff objects, alleging the evidence is collateral.

Is the evidence admissible? On cross-examination, Defendant attempts to impeach Victim with a statement she made to Friend. Defendant asks Victim whether she told Friend she made up the allegations because Defendant was cheating on her. Victim denies she made the statement to Friend. Defendant then calls Friend who testifies, Victim told me she made this all up because Defendant was cheating on her. Prosecutor objects and moves to strike the statement of Friend, arguing the evidence is collateral.

Is the evidence extrinsic? Nurse testifies that Doctor did not respond to Nurse s calls regarding Patient, and Patient died. Doctor calls Scheduler to testify that Nurse was not working the evening Patient died. Patient s counsel objects and argues Scheduler s testimony would be extrinsic.

References to inadmissible extrinsic evidence prohibited Isn t it true, sir, that if I called Employer as a witness, he would testify that you lied on your employment application?

Evid. R. 608(b) By taking the witness stand, a witness does not waive Fifth Amendment protection associated with past incriminating misconduct.

What is a prior inconsistent statement? May be oral or written; A material fact is excluded or different from the testimony; or, Prior to testimony in court witness evidenced an inability to remember the facts testified to at trial.

Evid. R. 613 Impeachment by selfcontradiction Prior statement need not be shown to the witness. Prior inconsistent statement may be offered for impeachment only. Extrinsic evidence of prior inconsistent statement permitted if: Statement has been shown to the witness and witness has had an opportunity to explain or deny the statement. Subject matter of the prior inconsistent statement must be of consequence in determining the credibility of the witness.

Is the statement inconsistent? At trial on a charge of assault, Victim testifies that Defendant hit her numerous times, and when asked for a specific number, Victim says, I think probably twenty. Defendant seeks to impeach Victim with a prior statement made to the police where Victim stated, He hit me a lot, at least fifteen times.

Is the statement inconsistent? At the same trial, Victim states that the incident for which Defendant is on trial was not the first time Defendant had assaulted her. Defendant attempts to introduce Victim s written statement to police where Victim did not mention prior assaults by Defendant.

Limiting Instruction The statement should not be considered for its truth, but rather for the restricted purpose of assessing the credibility of the witness. Limiting instruction not required if the prior statement is substantively admissible.

Evid. R. 609 Impeachment by evidence of a prior conviction of a crime Crime must be punishable by death or imprisonment in excess of one year. Crime was an offense involving dishonesty or a false statement, regardless of the potential penalty. Court must determine that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the jury, pursuant to Evid. R. 403. Time limit ten years from the date of conviction or release from confinement or termination of supervision.

Offenses of Dishonesty or False Statements Perjury Theft (deception) Forgery Fraud Embezzlement Bribery Receiving stolen property Filing false tax returns Counterfeiting Tampering with an electric meter

What evidence is admissible? Date of conviction Offense No details of offense No evidence associated with punishment

Is the evidence admissible? During trial on a breach of contract claim, Plaintiff is asked on cross-examination about a prior conviction for perjury. Can Plaintiff later call Witness, who will testify about Plaintiff s reputation for truthfulness?

In the same trial, on cross-examination, Witness, who testified about Plaintiff s reputation for truthfulness, is asked by Defendant whether Witness is aware that Plaintiff is cheating on his wife. Is the evidence admissible?

Character or Impeachment? In a rape case, the trial court did not abuse its discretion by excluding evidence of the criminal record of a man who lived with the victim, as the identity of the alleged rapist was not at issue, and the fact that the man was previously convicted of rape did not make it more or less probable that Defendant raped the victim, rendering the evidence not relevant for any purpose. State v. Bickerstaff, 2015-Ohio-4014

Limiting Instruction Testimony was introduced that Defendant was previously convicted of a criminal act. This testimony may be considered for the purpose of helping you test the credibility or believability or weight to be given to Defendant s testimony. It cannot be considered for any other purpose.

Evid. R. 610 Evidence of the beliefs or opinion 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.

Questions?