Relevant evidence

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Basically, allows prior bad sexual acts to be used as propensity evidence in sex crime prosecutions.

  • Based on “lustful disposition theory” – that sex criminals are more likely to be recidivists, though studies do not bear this out.

  • FRE 414 – Evidence of Prior Child Molestation – does same as 413, but for evidence of prior molestations in child molestation prosecutions.

  • FRE 415 – Applies 413 and 414 to civil cases

    FRE 406 Habit Evidence

    • FRE 406 – Habit Evidence – Evidence of (1) the habit of a person or (2) of the routine practice 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.

      • Even if party has no other evidence to prove that an action was done on a specific occasion, proof of a habit of doing the action is admissible to prove the action: “we always include this phrase in our acceptance letters.”

      • Testimony like “X is a careful driver” is more like character evidence. To make it habit, you’d need a person to say “I’ve driven with X on this road many times, and every time he stopped at the stop sign.”

      • Problem 5N – Evidence that employee used immersion heater to warm a can a number of times admissible to help show he used it the time when the can exploded. In actual case, 4 or 5 times was enough.

      • Problem 5O – Government (an institution) can use habit of giving deportees a form in their native language to help show it did it this time. In actual case, was held inadmissible b/c person testifying had in fact never given out the form, but with a better offering witness, it’d be admissible.


    • Methods of impeachment

      • Trying to show that witness is just not a believable person

      • Trying to contradict a point in the witness’s testimony

    • Not fitting one impeachment rule doesn’t mean evidence can’t be admitted under another impeachment rule.

    • Motion in Limine – a pretrial motion for a ruling on an evidentiary point so you can plan your case. No right to a ruling on such a motion, and judge not bound by it if circumstances change – hard to see what ruling should be in the abstract. However, they’re very useful, and in practice, it seems like judges will generally follow their prior rulings.

    • Impeachment by Bias – Evidence of a witness’s bias is admissible to impeach the witness. Not in the FRE, but it’s still fo’ rizzle.

      • US v. Abel (USSC 1984):

        • Facts: A is on trial for robbery. Gov’t has E, who says A did it. Defense has M, who will say E told him E would lie and implicate A to get a deal.

        • M’s testimony is admissible – demonstrates E’s bias.

        • Issue: can prosecution attack M w/ extrinsic evidence? It wants to ask if all 3 were in Aryan Brotherhood in prison, where they swore to lie, cheat and kill to help each other out. If M denies it, prosecution wants to re-call E to testify to it (extrinsic evid of bias)

          • Extrinsic Evidence: evidence outside the testimony of the witness being examined

        • Holding: bias can be shown and attacked through extrinsic evidence

          • Issue of bias is never collateral, i.e. not that important

        • Result: Here, judge excluded term “Aryan Brotherhood” on 403 grounds, but let evidence of a group and its tenets. Upheld.

      • Problem 8A – GM asks its expert on direct how much expert is paid for the appearance. On cross opponent can still ask how much expert made from GM last year, how much he expects to make this year, and what proportion of his income comes from such appearances. Relevant to bias and credibility, so proper questions.

    • FRE 608(b) – Impeachment with Conduct Not Leading to a Conviction – Specific instances of the 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.

      • Summary:

        • On cross, can ask witness about past incidents relevant to his own character for truthfulness

        • On cross, can ask a character witness about past incidents relevant to the character for truthfulness of the witness he’s vouching for

        • Lawyer is stuck with the witness’s answer

      • Can only ask about conduct probative of truthfulness. Can ask about stealing or lying, but not being in a fight.

      • Lawyer must have a good faith basis for believing the alleged incident took place. Can be asked to reveal the basis to judge in a sidebar.

        • If there isn’t, could warrant mistrial, or scolding in front of jury

      • Not provable by extrinsic evidence – lawyer is stuck with the answer. Policy is it’s not important enough to create a mini-trial on whether some event that may be probative of a witness’s truthfulness actually happened.

      • Carson v. Polley (5th Cir 1982): Carson is defendant officer in police misconduct case. On cross, testifies that it’s impossible that he lost his temper and used excessive force. P has evidence he’s been cited 3 times for excessive force. Court says it’s okay to prove this with extrinsic evidence, 608(b) notwithstanding.

        • 608(b) bar on extrinsic proof not applicable where denial relates to witness’ testimony on a material issue.

        • Makes sense: policy on excluding extrinsic proof was that it wasn’t an important enough issue to spend time on it. Where the impeachment relates to a material fact, it’s very important.

    • FRE 609(a) – Impeachment by Prior Convictions – For the purpose of attacking the character for truthfulness of a witness:

      • (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

      • (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

      • Summary: To impeach (not to show propensity),

        • (2) Evidence that any witness has been convicted of a crime that involves dishonesty or false statement is admissible.

        • (1) For a witness other than the accused, evidence that the witness has been convicted of a crime with a possible 1+ year sentence (i.e. a felony) is admissible, subject to 403 balance.

        • (1) Evidence that the defendant committed a crime with a possible 1+ year sentence (i.e. a felony) is only admissible if the probative value of the conviction outweighs its prejudicial effect – a reverse 403 balance.

      • Different crimes will have different probative values for impeachment and create different levels of prejudice. To balance, look to age of the crime, if it’s cumulative evidence, whether hearing D’s friend’s crime could taint D

      • Conviction can be proved by extrinsic evidence. Policy: witness not likely to deny conviction, and if he does, it can easily be proved w/ a document showing judgment of conviction (Admissible under FRE 803(22)).

      • FRE 609(b) – Convictions over 10 years old presumed inadmissible

      • Problem 8C – Witness has 9 yr old forgery and 7 yr old manslaughter convictions. Forgery conviction is in automatically as a crime involving dishonesty. Manslaughter probably excluded b/c cumulative and less probative of truthfulness. Both inside the 10 year time bar.

    • FRE 608(a) – Impeachment by Character for Untruthfulness – opinion or reputation evidence of character ok, except: (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.

      • Evidence of truthful character only admissible to rehabilitate

      • However, character for truthfulness doesn’t have to have been attacked by another witness – any attack on character for truthfulness will warrant rebuttal.

    • FRE 613 – Rules to Admit Impeachment by Prior Inconsistent Statement – (a) 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. (b) 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. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

      • Summary:

        • (a) Inquiring lawyer doesn’t have to show the witness the prior statement, but does have to show it to opposing counsel on request

        • (b) You can’t introduce extrinsic evidence of a prior inconsistent statement unless you give the witness an opportunity to explain or deny it, and opposing counsel has an opportunity to inquire.

          • This doesn’t apply to admissions under 801(d)(2)

      • Prior inconsistent statements offered to impeach are NOT admissible for their truth unless they fall under 801(d)(2).

      • If witness you’re impeaching has left the courtroom and can’t be recalled, you can’t introduce extrinsic evidence of a prior inconsistent statement.

      • This rule does NOT say when extrinsic evidence of an inconsistent statement is admissible, only the protocols to follow when one is admitted

      • Admissibility of a prior inconsistent statement to impeach is decided under 403

        • 1) If it’s a trivial prior inconsistency, likely will be excluded

        • 2) However, if it was a different description of the suspect that doesn’t match the defendant, it will be allowed, as it casts doubt on the witness’s credibility regarding a central issue.

          • Remember, it’s all about whether the statement impacts credibility – the prior statement isn’t coming in for its truth

      • Problem 8F – Where party waits until A is off the witness stand and back home in another state before calling B, who will testify to a prior inconsistent statement, statement inadmissible. Responsibility of the party offering the testimony to ensure witness is available when the party introduces the statement, even though it’s not the party’s witness.

    • Impeachment by Contradiction – decided under 403

      • Ex: you have evidence other than a prior inconsistent statement that impeaches the witness. Say she says she went to a movie theater and saw The Rock the day of the murder, and you can show no theater was playing The Rock.

      • 1) If the evidence not only contradicts, but tends to prove a substantive point, it’s admissible.

        • Would be admissible even if it didn’t impeach

      • 2) If the evidence not only contradicts, but tends to prove some other impeaching point, it’s likely admissible.

        • Ex: evidence that the alibi witness and the defendant were dating, where alibi witness denied knowing defendant.

      • 3) Counterproof that only contradicts is likely inadmissible. We’re not going to let lawyers start examining every possible irrelevant inconsistency in a witness’s story.

        • Ex: the movie example

        • Sometimes, however, courts admit counterproof on such a point where it seems that a witness could not be innocently mistaken. Like of witness says he remembers the date, May 3 b/c it’s his daughter’s birthday, and it turns out her birthday is the 8th. This feels like it really undercuts his story.

      • Lawyers will often try to use contradiction to wedge in pieces of evidence excluded from use by another rule in the substantive case. As a lawyer, you have to be careful not to open the door to such pieces of evidence.

      • Problem 8G – D is charged with a robbery in Seattle on July 21. Alibi is that he was at a restaurant in Portland. Owner testifies that D was a regular customer and was there on the 21st. Prosecutor asks if D was there every day for the few weeks prior (as setup to impeach owner) Owner says yes.

        • Kinney will testify that he saw D in Seattle on the 14th and D said he had been there for a few days. This likely excluded. The contradiction isn’t relevant to a material fact, plus you have a smuggling problem.

        • Samuels is a waiter at the restaurant who will testify that he’s never seen D there. This gets in (as substantive evidence as well as impeachment evidence). It impeaches, and is also relevant to a substantive point: whether D was where he says he was.

      • Standard is the same for defense and prosecution here

      • Carson v. Polley (5th Cir 1982): 608(b) bar on extrinsic proof not applicable where denial relates to witness’ testimony on a material issue.

    Impeaching Your Own Witness, and the Smuggling Problem

    • FRE 607 – The credibility of a witness may be attacked by any party, including the party calling the witness.

    • Smuggling Problem: Say you know that Pete now says your client was at fault, but you have prior statements by him that your adversary’s client was at fault. Adversary isn’t calling Pete. You might want to call Pete, have him say what he says, then impeach him with the prior statement. The problem is that the prior statement isn’t admissible for its truth, though that’s how you want the jury to use it. From the law’s perspective, all the prior statement can do is wipe out Pete’s credibility, not help prove your adversary was at fault. If all you’re doing is calling a witness to smuggle in prior statements in hope the jury will, against instructions, use them for their truth, judge will disallow it.

    • US v. Webster (7th Cir. 1984): Here, prosecutor didn’t know what witness was going to say. Asked for a preliminary examination w/o jury, but D objected. When witness testified counter to prior statement, prosecutor impeached with it. Here, this was not pure smuggling, so it was okay.

    • Morlang: The smuggling described above, where the witness is no longer saying what is in the prior statement, the prior statement is not admissible for its truth, and the proponent of the prior statement is just hoping jury will ignore that, the prior statement is inadmissible.

    • DeLillo: Where A’s prior statement had 5 facts that were very good for B, but now A remembers 3 the same way but 2 in a way that is bad for B, B can call A and ask about all 5, and then impeach with the prior statement about the 2 where A seems to be inconsistent. Even if the opponent wasn’t going to call A and bring out the 2 bad statements, B can still do this – story may need its narrative richness, and statements often need to be heard in full to understand them.

    Miranda/4th Am Violations and Impeachment Of Criminal Defendant

    • Miranda and Impeachment with silence:

      • Post-Miranda silence can’t be used to impeach (Doyle v. OH USSC 1976)

      • Post-arrest, pre-Miranda silence can be used to impeach (Fletcher). Gives police bad incentives but USSC seems to not care.

        • Worry that police can arrest D and leave him alone and then use the silence in the interim to impeach D. Bad incentives.

      • Pre-arrest, pre-Miranda silence can be used to impeach (Jenkins v. Anderson)

        • These rules apply both to adoptive admissions under 801(d)(2)(B) as well as simple silence not indicating an adoption of any belief.

        • Defense counsel free to explain why D didn’t go to police. Race factor – what if D distrusts police?

      • Raffel: Once D testifies at the second trial, his decision not to testify at the first trial can be commented on and inquired into on cross

    • Impeachment with evidence gained in violation of Miranda:

      • Harris v. NY (USSC 1971): Statement gained w/o Miranda warnings admissible to impeach. (1) To rule otherwise is to countenance perjury. (2) This doesn’t create police incentive problems – police would rather Mirandize and have a statement they can use substantively than not Mirandize and be limited to impeachment.

        • Brennan dissent: this restricts D’s 5th Am right to testify in his own defense. Also, says this still creates bad police incentives where police think D will clam up if he hears warnings.

      • Oregon v. Hass (USSC 1975): D asked for his lawyer, police didn’t get him, and continued to question in violation of Miranda. At trial, P uses statement gotten after request for lawyer to impeach. Court says okay, even though this case presents much greater incentive problems – if this statement is admissible, police have nothing to lose and a lot to gain by continuing to question after request for lawyer. Court doesn’t seem to care

        • Could argue this is worse than a 4th Amendment violation. There, the violation is over with the improper search. With Miranda, the violation occurs when evidence is introduced at trial, so the injury is still preventable.

    • Impeachment with truly involuntary statements violates 5th Amendment (not just Miranda)

      • Portash: Witness given immunity at prior proceeding so had to testify. Now a defendant against other charges, prosecutor wants to use his confessions to crimes under oath at prior proceeding to impeach. This is inadmissible, as his prior statements were truly compelled – there, he had to testify or go to jail on contempt. This is a core 5th Am concern, not just violation of prophylactic rule like Miranda.

      • Mincey: Mincey was a hospital bed hanging on for his life when police got a statement from him. This statement is inadmissible to impeach him.

    • Impeachment with evidence suppressed under 4th Amendment:

      • Walder: held same as Harris for impeaching with evidence seized in violation of the 4th Amendment. Admissible to impeach. Here, D testified he had never had drugs, and P had suppressed evidence of drugs seized from D a few years earlier.

      • Smuggling Problem: As a prosecutor, you may have suppressed evidence you wish you could use. If D says something that this evidence impeaches, you can use the evidence under Walder. But to what extent can you ask questions on cross to get D to say something contrary to the suppressed evidence so that you can use it to impeach D?

      • US v. Havens (USSC 1980): 2 Ds are arrested coming back from Peru. McLeroth is found w/ drugs, Havens has a T-shirt w/ pieces cut out. Cops find matching pieces taped to McLeroth’s body w/ contraband in them. On direct, D’s counsel asks Havens whether he engaged in taping the material around McLeroth’s body, he says no. On cross, P asks about where the pieces might have come from. Havens denies any knowledge about any shirt. P introduces the excluded shirt to impeach. Can P open his own door like this? USSC says it was admissible.

        • Test: If the questions on cross that opened the door to the impeachment would have been suggested to a reasonably competent cross-examiner by direct, they are not smuggled in.

        • Seems like this is disavowing Agnello. What was the D’s statement in Agnello that USSC said didn’t open the door?

      • Problem 8H – standard is same if the desired impeachment evidence is inadmissible under FRE, as opposed to excluded b/c of 4th Am violation

    Repairing Credibility

    • FRE 608(a)(2) – Evidence of character for truthfulness admissible after an attack on character, by opinion or reputation evidence, or otherwise.

    • United States v. Medical Therapy Sciences (2d Cir. 1978). Court allows gov’t to call witnesses to repair Russell’s credibility even though there were no character witnesses attacking her credibility. D’s examination of Russell was sufficiently aggressive to trigger the government’s right to call a character witness This is an example of the kind of conduct that can fall within the phrase “or otherwise” for purposes of 608(a)(2).

    • FRE 801(d)(1)(B) – Prior Consistent Statement and Tome revisited – Problem 8I

      • Prior consistent statements not admissible for their truth under 801(d)(1)(B) may nevertheless be admissible to rehabilitate credibility.

      • A and C meet with undercover agent and sell him coke. At trial, agent says A gave him sample from her purse. This is important b/c only C had coke on her when arrested, so case against A is otherwise weak. Crossing the agent, A’s attorney pushes that agent’s statement of A having given him the sample is a fabrication, or that in fact he doesn’t remember whether A or C gave him the sample. After the bust, agent came outside and made tape-recorded statement that A had given him the sample. Prosecution wants to bring this out on re-direct.

      • Assuming we read Tome narrowly (not barring not-for-truth use of prior consistent statements), it’s admissible to rebut lack of memory claim, or claim of fabrication – that he made the statement when the motive to fabricate was significantly less.

      • Could also claim that statement is pre-motive and therefore admissible under 801(d)(1)(B) and Tome. At the time of the bust, agent didn’t know no drugs would be found on A and that this would be needed to strengthen the case. However, there was still a motive to implicate A, just not as strong. To a toss-up.

    FRE 701 – Lay Opinion Testimony

    • FRE 701 – If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

    • Generally, opinions are admissible. However, if it is possible to provide facts so the jury can be put into the same place as the witness and be equally able to decide what inferences to draw, a judge may not allow the opinion.

      • In such a case, the second requirement (helpfulness) may not be met.

    • Problem 9A – colloquy where D’s girlfriend says it was her impression after talking to D he was involved in the fire-bombings. Could say it’s admissible b/c it would be helpful. However, (1) this is also a pretty large leap as compared to something like “he was sad,” and (2) it’s going to the central issue in the case. Might say instead that on 403 balance, girlfriend could testify to the underlying events, but not her opinion. In actual case, Cir said error to admit, but harmless.

    • Conclusion like “I’m sure he was smoking a joint” might be out, b/c could testify to the smell, what he saw.

    • Conclusion that car was “totaled” is no good, but can testify to damage he saw.

    Expert Witness Testimony
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