CHARACTER EVIDENCE RULES

Rule Description Conditional Relevance Rule # 104(b) Rqmts Cases Fitzhugh Where the relevancy of evidence depends upon the fulfillment of a(her son shows awareness condition of fact, the court shall admit it upon, or subject to, the that introduction of evidence sufficient to support a finding not HIS son) Cox v. State (did fulfillment of the condition. THEORY: Sometimes an item of evidence by itself Huddleston accused know about bond hearing? Only relevant if he knew about bond hearing outcome) Notes Prob. 3.13 (robber on trial, acquitted in first case, able to be brought in related case b/c diff. standards (beyond reasonable doubt v. preponderance of evidence)

Relevance

401

Probative; Evidence must have any tendency [low threshold] to make the existence of any fact more probable or less probable than it would be without the evidence. Material; Evidence must bear on any fact that is of consequence to the determination of the action.

James (s daughter shot victim)

Is it relevant? 3 Questions to Ask 1. What issue(s) is the fact-finder being asked to determine in this case? 2. Does the testimony (or the other evidence) bear on a fact that is material (of consequence) to that determination? AND 3. Does the testimony (or the evidence) tend to 1

make the determination of that fact more or less probable?

402 Exclusion of Relevant Evidence b/c of Prejudice 403 -all relevant evidence is admissible unless prohibited by the US Const., Congress, or SCOTUS Two prong test: -probative value (PV) -risk of unfair prejudice (RUF) -PV must be SUBSTANTIALLY outweighed by Unfair Prej. -could be issue of delay, undue waste of time

State v. Bocharski (gruesome photos) Serge (CGAno facial features, sound, etc. to make prejudicial) People v. Collins (probability evidence)

-can take steps to make things less prejudicial -doesnt apply to 609 -Johnson (bank robber in NY, arrested later in Ga; stippeople will think bank robbery spree; so D can say he was in Ga and used a fake name -Myers (bank robber in Fla, Pa, and flight in cali, flight not allowed in b/c would have had to rebut that with robbery in Pa, and much time b/w mall sighting and flight there

Flight 1) Ds behavior flight 2) Flight consciousness of guilt 3) consciousness of guilt to consciousness of guilt of this crime charged 4) to consciousness of guilt of this crime charged actual guilt

Character of Accused

404(a) (1)

-criminal case -evidence of pertinent character trait offered by accused (REPUTATION OR OPINION) -offered by prosecution to rebut -criminal case

Character of Alleged

404(a)

Victim

(2)

-evidence of pertinent character trait of alleged victim (limited by Rape Shield Law412) offered by an accused -by the prosecution to rebut - evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor -as provided by 607, 608, 609 -NOT ADMISSIBLE to prove character of person in order to show action in conformity therewith. -MAY BE ADMISSIBLE to prove: Proof of motive Opportunity Intent, preparation, plan, knowledge - Silicon valley/kid with comps problem -Common plan in domestic violence not allowed in Identity (MODUS OPERANDI) Narrative Integrity Russian Roulette example Absence of mistake or accident Only 403no risk of prejudice to to Gov Peltier (Motive) Guy killed two FBI agents Trenkler (M.O. Must be more than single prosaic commonality) Rex v. Smith (Doctrine of Chances) See 607/608/609 U.S. v. DeGeorge Narrative Integrity/inextricab ly intertwined 1) Evidence is part of transaction that is basis for charge 2) need evidence to present coherent storyhere why guy couldnt buy boat insurance (but can still redact about the other boats being sunk) Prob. 3.9 Stevens misread Not similar, just propensity evidence W testifies about D or V

Character of Witness Propensity Box: Other Crimes, wrongs, acts

404(a) (3) 404(b)

REVERSE 404(b)

404(b)

Methods of Proving Character

405(a)

-Reputation or opinion ONLY on direct -On cross-examination, inquiry is allowed into relevant specific instances of conduct -no extrinsic evidence

U.S. v. Stephens Only used exculpatorily Sufficiently similar to bring in propensity evidence Michelson (D brought in 5 char Ws to honesty; Pros did you know his 1920 arrest, said they knew him

then) Specific Instances of Conduct 405(b) -Where character is in issue, the parties can show specific instances of conduct either party can bring in evidence at any point because not trying to draw inference of character -Reasonable Fear for safety in self-defense (James) Prob. 3.17 Essential element is that D have been reasonably in fear NOT that victim have been violent person. -D need not enter evidence of victims violent nature can offer evidence that victim attacked first causing D to be fearful. Common instances where 405(b) occurs: specific instances allowed on direct -Rebutting entrapment defense -Rebutting a defense of truth in libel or slander action -Resolving parental custody dispute -Negligence entrustment or supervision Prob. 3.18 That V was high on drugs at time of fight and that made him aggressive, goes around propensity boxnot hindered by 404(a)(2)

like train crash problem, 3.3

Evidence of Habit 406 -does not require same inference as propensity -may have probative value -Facts: Frequency, automatic/semiautomatic nature, AND variability. Halloran v. Virginia Chemical (lack of volition/predictability helps determine habit) Prob. 3.19, that doctor prescribed the wrong pills to eight people out of a possible hundred isnt habit Subsequent Remedial 407 -inadmissible to prove negligence, culpability Tuer v. McDonald Drug addictions dont count, nor previous assaults to prove this one, basically not bad behavior allow - that person is observing Sabbath and not out committing this crime isnt a habit Policy Question

Measures

-may come in if offered to show ownership, control, feasibility of precautions, BUT ONLY IF CONTROVERTED -may come in to IMPEACH

(defines feasibility).

Compromise and Offers

408

408(a)(1): offers during negotiations may not be used 408(a)(2): conduct or stmts made during negotiations inadmissible EXCEPT: -offered to prove OTHER things: -witness bias from previous settlement -but cant use to impeach thru prior inconsistment stmt -lack of undue delay -obstruction of crim. invest. OR -offered in crim case and negotiations with public office (SEE RULE)

Bankcard America (we want to encourage settlementsbut not use as shield) Prob. 2.4 Ramada (report was allowed to be excluded because it was forming the basis of negoitions)

applies in strict liability - 3rd party repairs not barred, but low probative value - safest/best possible is controverting feasibility -claim must have already been made to get protection. -prior inconsistent statements, if made during compromise negs, cannot come in. -COMPARED TO 409: -protects stmts surrounding negotiations (unlike 409) -Doesnt apply when getting creditors to settle - stms made during civil claims arent allowed in in criminal (except with gov) -this extends to third parties (rule bars that) -stmts like Im

Payment of Med

409

-cannot be used to prove liability

Expenses Withdrawal of Guilty Plea Think CRIMINAL 410 -guilty plea later withdrawn inadmissible. -does not exempt witnesses, only defendants U.S. v. Biaggi (guy can use rejecting immunity deal against Pros, rejecting a plea is undecided)

sorry can come in -talking to cop no excluded unless Pros gives authority to make deals (some courts will let it in nevertheless, subject standard) - if again - Prob 2.7 (allowed for D in crim of use it, crim not civil; using insurance not to show more careless, but lack of motive)

Liability Insurance

411

-evidence of liability insurances not admissible on the issue of whether the person acted negligently or wrongfully -may come in for other purposes, such as to prove: agency, ownership, control, bias/prejudice of witness Not allowed: -evidence offered to prove alleged victim engaged in other sexual behavior -evidence to prove victims sexual predisposition Exceptions: 412(b)(1)(A) specific instances offered to prove that person other than accused source of semen, injury, physical evidence. 412(b)(1)(B) specific instances prove consent w/ D, - this could include talk and fantasies 412(b)(1)(C) evidence that would violated constitutional rights 412(b)(2) allowed in civil cases if passes reverse 403 only admissible if reputation has been placed in controversy by alleged victim.

Williams v. McCoy (P only wanted to mention Ds insurance as to why she hired a lawyer, Ds adjuster visited her not to show liability) State v. Smith (if its about false rape accusations, not past sexual behavior, so 412 doesnt apply)must pass Huddleston standardjust must find that past false accusations occurred Olden v. Kentucky (allowed if goes to showing bias)const issue Stephens v. Miller (narrative integrity, but limited)cant say doing it doggy fashion and with Tim Hall U.S. v. Knox (inadmissible case is

Rape Shield Law

412

Sexual Assault

413

-criminal case -D accused of offense of sexual assault -evidence of Ds prior sexual offense admissible -will be considered for all relevant matters -still must comply with strict 403 balancing test

about whether she was awake or not, past behavior irrelevant) U.S. v. Mound (413 does not violate Due Process)

U.S. v. Guardia: 403 not restrained; OB/GYN accused of assaulting patients 4 other victims brought innot allowed, because experts would be needed to test. for each ones care mini-trial

Child Molestation

414

Civil Cases, sex crimes alleged

415

-criminal case -D accused of child molestation -evidence of Ds prior molestation acts admissible -will be considered for all relevant matters -civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation -evidence of Ds prior sexual acts admissible under 413, 414.

STATE CASES that dont follow 414: -Lannan v. State, State v. Kirsch.

WITNESSES (NOT EXPERT AND LAY TESTIMONY)

Rule Description First-hand knowledge Competency of Jurors as Witnesses Either party may impeach a Witness Rule # 602 606(b) 607 Rqmts W needs personal knowledge Cases Shepard Tanner Notes

Reputation and opinion 608(a) only: Witness character for untruthfulness

Specific instances on Cross on truthfulness

608(b)

Criminal Convictions For Witness

609(a)(1)

-opinion or reputation ONLY -must pertain to truthfulness -party MAY support character for truth through propensity box AFTER character for truthfulness attacked -opponent may rebut with evidence of witness character for truthfulness -on cross, party may ask of SPECIFIC INSTANCES -must be probative of truthfulness/untruthf ulness -counsel must have good faith reasonable basis for asking the questions -extrinsic evidence barred! -subject to 403 for W is the Probative value sub. Outweighed by Unfair Prej - -must be punishable more than one year -Use 609(b): Time limit. Must have been released less than 10 years ago. REVERSE 403 HERE if >10 years old?

U.S. v. Whitmore

Remember: If you cant get it in under 609, cannot No Extrinsic Evidence backdoor through 608

No Extrinsic Evidence Remember: If you cant get it in under 609, cannot backdoor through 608

Allowed as soon as D takes the stand, doesnt need to test. to anything

Dont forget to see if juvenile (never used against D)

Criminal convictions for accused

609(a)(1)

MODIFIED 403 (Prob value > unfair prej) USE BREWER FACTORS Prob value must outweigh unfair prej. If a tie, doesnt come in Extrinsic evidence allowed

U.S. v. Brewer factors: 1) Nature of crime, acts of violence have no bearing on honesty 2.) time of conviction, D may have had direct conflict with law while on parole 3.) similarity to charged crime, if similar, then exclude 4.) importance of ds testimony importance favors nonadmission 5.) centrality of credibility issue) is Ds credibility a central issue, that favors admission still subject to (b) and (d)

Prob 4.4 B/c Ds prior is excluded under 404(b), doesnt mean it will be under 609 404(b) is probative of guilt, 609 of veracity in testimony Luce & Ohler if trial judge wrongly admits past convictions to impeach D, 2 conditions for appeal 1) D must have test. at trial (Luce) 2) Pros. Must have intros evidence of contested conviction (Ohler) Note: NO 403 Balancing Test Here

Crimen falsi

609(a)(2)

Criminal convictions and time lime

609(b)

-crimes of dishonesty, always admissible, regardless of punishment. -NO 403 BALANCING TEST If over ten years, reverse 403 to get it in Brewer Factors for accused

Judge from when released or when released from being put back on parole Or, if conviction is later than release

Reverse 403 test Prob value has to substantially outweigh unfair prej

Crim convictions and juvenile adjudication Writing used to refresh memory

609(d) 612

If necessary for a fair determination of guilt or innocence Think b-day cake

Never against accused

Cf. 803(5)

Prior stmt of Witness to impeach

613

-This is just to impeach to credibilitynot truth of the matter asserted -Declarant must have testified see chart at end for Miranda and silence

Barret ( robber) and Ince (gov cant impeach own witness 2nd time around just to bring in prior confession)

All that 613(b) requires before extrinsic evidence of a prior inconsistent statement can be introduced is that the witness be given a chance to explain or deny the statement

LAY AND EXPERT TESTIMONY

Lay Testimony Expert Testimony
701

702

1) W had first-hand knowledge 2) Aids fact-finder 3) Not based on scientific knowledge in scope of 702 1) Test based on sufficient facts or data 2) test. is product of reliable princimples and methods 3) W applied reliable in this case

Garnier (guy test. to complication word program) Johnson (test. to type of pot) Jinro (no nexis b/w his qualifications and what hes test. about)

Lay person can test. to presense of drugs if within their knowledge Think if common sense could be off 5 things to look for 1) proper qualifications 2) proper topic

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3) sufficient basis 4) relevant and reliable methods 5) 403 challenge Opinion on Ultimate issues
704

A) Test. as in opinion or inference otherwise admissible is not objectionable because it embraces utilmate issue to be decided by factfinder B) Expert witness test. about mental state cant state an opinion or inference to if D did or didnt have mental state as to crime charged

Hygh v. Jacobs (W cannot define what deadly force iscannot step onto judges role)

HEARSAY RULES
Rule Description Statement Rule #
801(a)

Rqmts A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

Cases if from a machine, not hearsay

Notes - Verbal Act - Effect on listener - 613 Prior inconsistent stmt

Declarant Hearsay

801(b) 801(c)

-person who makes stmt -"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. So, and out-of-court assertion brought it to prove the truth of what is asserts

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Prior Inconsistent Stmts by Witness Prior Consistent Stmts Prior Stmts for ID

801(d)(1) (A)

-must be subject to cross now -prior stmt must have been given UNDER OATH at trial/hearing/deposition

-must be subject to cross now -consistent w/ declarants testimony now -OFFERED TO REBUT charge of -recent fabrication/improper influence/motive 801(d)(1) -must be subject to cross now (C) -must have perceived person
801(d)(1) (B)

Prob 7.19: if actually forgot, not inconsistent; if lying, then will be allowed in Tome v. U.S.

NOT HEARSAY

NOT HEARSAY

NOTES: Weichell - Composite sketch as identity.

NOT HEARSAY

U.S. v. Owens - just b/c he cannot remember now does not mean that 6th Am right violated. (prison guard beat up) Subject to cross requires 1) W Placed on stand 2) under oath 3) respond to questions willingly

Statements against party opponents Partys Own Stmt Adoptive Stmts

This is warfirst-hand knowledge not necessary -offered against party -partys own stmt -individual or representative capacity 801(d)(2) -offered against party (B) -party has manifested adoption/belief in truth by silence 2.) heard stmt 3.) at liberty to respond 4.) circumstances called for response 5.) person didnt respond or by adoption 1.) heard and understoof stmt 2.) acted in accordance with it
801(d)(2) (A)

NOT HEARSAY For Miranda and silence see chart at end NOT HEARSAY

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By authorized party Agent or servant

Coconspirators

-offered against party -lawyers are included -person must be authorized on subject -Ct will determine if authorized party -stmt alone not enough 801(d)(2) -must be during existence of employ (D) -must concern matter in scope of employ -Ct will determine agency/scope --NO rqmt for personal knowledge -stmt alone not enough 801(d)(2) -Ct will determine existence of conspiracy (stmt alone (E) not enough) -must be during conspiracy -must be in FURTHERANCE OF conspiracy -stmt along not enough
801(d)(2) (C)

Mahlandt (Poos Case)

NOT HEARSAY

Mahlandt (Poos Case)

NOT HEARSAY

Bourjaily conspiracy preconditions. 1.) conspiracy existed during stmt 2.) stmt was in furtherance of conspiracy 3.) Declarant and D were both in conspiracy

NOT HEARSAY

Hearsay exceptions

Present Sense impression Excited utterance

Even though declaran t is available as a witness 803(1)

803(2)

-first hand knowledge of facts -do not need to show effect on declarant -must describe/explain event/condition -Must occur (nearly) same time as event (matter of minutes, not hours). -first hand knowledge of facts asserted -must be startling event that CAUSED stress or

TIMING is KEY.

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State of Mind: Mental, emotional, physical

803(3)

excitement of declarant -only has to relate to event/condition -can occur farther off in time just must be under stress/excitement of event. - offered to show intent, plan, motive, design, mental feeling, pain, and bodily health - not including a statement of memory or belief to prove the fact remembered or believed -exception for wills

Hillmon (allowed to show intent for 3rd party) Shepard (only looking forward, not looking back) Iron Shell (V tld Dr. D raped her; allowed in b/c helped narrow down exam) 10th Cir: takes wide-ranging view because person takes care of you

Exception for wills. See Rule.

803(4) Medical Diagnosis/Tre atment

-for purpose of medical diagnosis/treatment -describing symptoms -general character of cause or source -patient should believe that they offer it to help physician treat/diagnose

Watch for policy Q. - Stmt to family members allowed in - Drs stmt to patient to get him to do something allowed in Cant enter it as exhibit, but may read into record.

Recorded Recollection

803(5)

803(5) con . . .

- Must be memorandum or record - concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately -shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. -If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Johnson v. State (person must somehow vouch for that) 1. W made of adopted record 2. based on firsthand knowledge 3. when matter was fresh in Ws memory 4. record correctly reflected Ws memory 5 W at trial must not be able to test.

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Records of regularly conducted activity

803(6)

Public Records/Rep orts

803(8)

-A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and - if it was the regular practice of that business activity to make record as shown by the testimony of the witness -unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness -custodian or qualified W has to testify to this process (familiarity with and knowledge of record-keeping process) -Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report -excludes in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

fully and accurately about matter recorded Vigneau (Western union and outsider stmts) Palmer v. Hoffman (RR) Look for double hearsay

Must be in course of regularly conducted biz activity -see also ABSENCE OF ENTRY IN RECORDS 803(7)

Beech Aircract/advisory comm. on nonexclusive factors if something is untrustworthy 1. Timeliness of investigation 2. investigators skill or experience 3. whether hearing was held 4. bias if prepared with view toward litigation (like Palmer v. Hoffman)

-see also ABSENCE OF PUBLIC RECORD, 803(10) Hayes (10th cir.) (IRS report not in 803(8), but can backdoor thru 803(6), here person is test (not in Oates, which doesnt allow it) So allowed where non adversarial reports and can cross person

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Misc

803(11)(23)

-see Rulebook

Unavailable Declarant

804(a)(1)

Exempted by court ruling/privilege 5th Am

U.S. v. Williamson

UNVAIL: Former Testimony

REFUSES TO TESTIFY TESTIFIES TO LACK OF MEMORY DEATH, PHYSICAL/MENTAL INFIRMITY ABSENT, AND UNABLE TO GET TO ATTEND BY PROCESS OR OTHER REASONABLE MEANS 804(b)(1) -MUST HAVE BEEN AT ANOTHER PROCEEDING (DEPO/TESTIMONY) -OPPORTUNITY OR SIMILAR MOTIVE -CHANCE TO DEVELOP TESTIMONLY ON EXAMINATION -PREDECESSOR-IN-INTEREST (CIVIL ONLY)
804(a)(2) 804(a)(3) 804(a)(4) 804(a)(5)

U.S. v. DiNapoli Lloyd v. American Export Shepard Cardozo.

UNAVAIL: Dying Declaration

UNAVAIL: Stmts against Interest

UNAVAIL: Personal/Fam ily History 804(b)(6) 1) engaged or acquiesced in wrongdoing UNAVAIL: Forfeiture by 2) that intended to make person unavailable

-Homicide or civil action only -declarant need not have died -declarant must believe that death is imminent (settled hopeless expectation of death Shepard) -must have PERSONAL KNOWLEDGE -must concern cause/circumstance of impending death 804(b) -against declarants pecuniary/proprietary interest AT (3) TIME OF STMT - subject declarant to criminal/civil liability -reasonable person would not have made it -NOTE: exposing declarant to CRIMINAL liability offered to EXCULPATE THE ACCUSED is NOT admissible UNLESS there is corroboration to its trustworthiness. 804(b)(4) See Rule
804(b)(2)

U.S. v. Williamson (mixing lies with truth is effective way to lie; so only let in exculpatory stmts)

U.S. v. Gray

Judge must find the three by

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wrongdoing Hearsay Within Hearsay

805

3) AND DID procure unavail. -does not have to be on this exact matter, but related (Gray). -Hearsay included within hearsay is not excluded under the hearsay rule if - each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

preponderance of the evidence

Attack/Suppo rt Credibility of declarant

806

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. -if not under 803/804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that: A) stmt offered as evidence of material fact B) stmt is more probative on point than any other evidence that proponent could get by reasonable efforts C) general purpose of these rules and the interests of justice will be best served by admission of stmt into evidence However, must give advance notice to adverse party Dallas County (newspaper article admittedunlikely someone alive back then would remember) Laster (guy with stuff for meth, company business records no one could test to knowledge with Considerations for inclusion under the rule: 1) Character of stmt 2) whether stmt is written or oral 3) relationship of declarant to party 4) probable motivation of declarant in

Residual Exception

807

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with a fair opportunity to prepare to meet it

them; near miss)

making stmt 5) circumstances under which stmt was made

Miranda and Silence

Adoption under 801(d)(2) (B) May silence be used to impeach under 613

D not in custory: circuits split D in custody, but before Miranda: circuits split D in custody but post-Miranda: NO D not in custody: Yes D in custody, but pre-Miranda: Yes (Fletcher v. Weir) D in custody and post Miranda: NO (Doyle) Fletcher: D was in custody, but didnt say, as he later did at trial, it was selfD)

Im taking this exam as its asking about relevant evidence under FRE 401 and 402. All evidence is subject to a 403 test. This doesnt include 609. When necessary, I shall explain how the balancing tests in 609 should work.

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