Evidence - Law School

Prohibited Uses 410 - Pleas, Plea Discussions, and Related Statements

(1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Exceptions to the rule 404 ban on propensity evidence

(1) criminal defendant opens the door to their own character, (2) criminal defendant introduces evidence of the defendant's pertinent trait, (3) witness's character for truthfulness, (4) when character is an element of a claim or a defense, (5) Prior instances of Sexual Assault, (6) Prior instances of Child Molestation, (7) to establish habit (406)

Prohibited Evidence Rule 412 Sex Offense Cases

(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition.

Rule 401 Relevance

(1) has any tendency to make a fact more or less probable than it would be without the evidence and (2) the fact is of consequence in determining the action

Acceptable Uses 410 - Pleas, Plea Discussions, and Related Statements

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Allowed Uses Rule 404(a) Character Evidence in a Criminal Case

(A) Defendant opens the door and prosecution may offer evidence to rebut it subject to 405 (B) Defendant may offer evidence of an alleged victim's pertinent trait and prosecution may offer evidence to rebut it and may offer evidence that the defendant has the same characteristic (C) in a homicide case, prosecutor may offer evidence of victim's peacefulness to rebut a defense of self defense

Allowed Evidence Rule 412 Criminal Sex Offense Cases

(A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant's constitutional rights.

Ways to prove a witness's character for untruthfulness

1. 608(a) Reputation or Opinion Evidence 2. 608(b) Specific Instances of Conduct 3. 609 Criminal Convictions

Ways to impeach a witness's using statements on the present occassion

1. Bias 2. Prior Inconsistent Statement 3. Perception 4. Memory 5. Narration 6. Contradiction

Rule 402 Admissibility of Relevant Evidence

Admissible if relevant unless any of the following provide otherwise: (1) the Constitution, (2) federal statute, (3) rules of evidence, or (4) other rules.

Evidence of the victim's character for peacefulness

Admissible in a homicide case if the defendant raises a defense that the victim was the first aggressor. Evidence must be in the form of opinion or reputation.

Reputation evidence supporting a witness's character for truthfulness is admissible

After a the witness's credibility is attacked Only by reputation or opinion testimony

Impeaching a witness under 608(b)

Allows inquiry into past instances of dishonest conduct on cross examination. Extrinsic evidence is still not allowed.

Impeaching a witness under 608(a)

Allows testimony (but not extrinsic evidence) attacking or supporting the witness's reputation or an opinion about the witness's character for truthfulness.

Old Chief v. United States - d offers to stipulate on the prior assault felony to avoid the named offense from creating bias in the jury. Is the evidence relevant in light of the stipulation?

An offer of a stipulation does not make evidence irrelevant, but it might decrease the probative value under 403. Courts consider the availability of alternative means of proof as a factor in the probativeness of evidence.

Rule 405 Methods of Proving Character

Character can be proved by reputation or opinion or by specific instances of conduct when the character trait is an essential element of a charge.

United States v Whitmore - Character witnesses: reporter that knows that the officer's reputation for truthfulness is bad, criminal defense lawyer who will testify to the officer's bad reputation for truthfulness.

Community may not be too large so general reputation cannot be know, nor so small that the entire community would be subject to the same biases Opinion must not be based on reputation so remote in time that it is no longer probative of current character.

Rule 403 Admissibility Exceptions for Relevant Evidence

Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of: (1) unfair prejudice, (2) confusing the issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (6) needlessly presenting cumulative evidence.

Crimes that involve dishonesty under rule 609

Court must be able to readily determine that dishonesty is an element or was involved in the crime.

Methods of Proving Character under 405(a) on Direct Examination using a Character Witness

Establish that the witness is familiar with the defendant, offer testimony of (1) the defendant's reputation or (2) opinion testimony.

Prohibited Uses Rule 404(a) Character Evidence

Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Rule 406 Habit

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Prohibited Uses 409 - Offers to Pay Medical and Similar Expenses

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

United States v. Trenkler - Bomb exploded, killing one boston officer and injuring another. Government sought to prove that Trenkler made the bomb. They sought to introduce evidence of a bomb he had built which was used in Quincy. In building the Quincy bomb, Trenkler bought parts from a Radio Shack. Expert witnesses argued as to whether the two bombs bore a "signature" that would demonstrate that the same person built both bombs.

Evidence that bears on a material issue such as motive, knowledge, or identity is admissible if it passes a 403 analysis. In this case the evidence can be used to establish identity—that it was Trenkler, and not someone else, that built the bomb. The characteristics relied on must be sufficiently idiosyncratic to permit an inference of pattern for purposes of proof.

Felony Possession of a Handgun. Relevance of evidence tending to show that she didn't know she had been convicted of a felony.

Evidence that tends to prove her ignorance is irrelevant because it is not a defense.

Relevance of evidence that tends to show a pattern of speeding.

Evidence that tends to show a pattern is relevant but may be inadmissible under other rules.

People v. Zackowitz -Four men repairing a car. A woman, d's wife passed by on the other side of the street. D found his wife in tears because she had been insulted by the men. D fought with the men, pulled a gun and shot one. D then threw the pistol into the river. Is evidence that he had several guns to select from admissible to prove that he was dangerous.

Fundamental to the rules of evidence is that character is never an issue unless the defendant chooses to make it one because the jury may find the defendant guilty based on their character rather than the charge. Dissent argues Res Gestae.

a) Williams v. McCoy - Trial court instructed p not to testify about insurance, discussions with insurance adjusters, etc. D questioned p about the timing of her doctor visits and hiring an atty in an attempt to make p appear litigious. She only retained the atty because they were trying to get her to settle before she got the medical help. Admissible under 403?

Here d questioned p's motivation for hiring an atty, so the insurance evidence was not being presented for d's liability, but would provide an alternate explanation for the appearance of litigiousness. This evidence did not risk unfair prejudice to the d under rule 403. Moreover, without the opportunity to explain, the jury would be forced to assume the worst about her motive.

Felonies under rule 609

If not the defendant, then subject to 403. If the defendant, then probative value outweighs the prejudicial effect (403 plus).

Rule 413

In a criminal case for sexual assault, the court may admit evidence that the defendant committed any other sexual assault (as defined by the rule, harassment, conspiracy, etc.)

Juvenile offenses under 609

It is offered in a criminal case; The adjudication was of a witness other than the defendant; An adult's conviction for that offense would be admissible to attack the adult's credibility; Admitting the evidence is necessary to fairly determine guilt or innocence.

Bolstering witness's character for truthfulness using reputation or opinion evidence under 608(a)

May be established only after being attacked.

Prohibited Uses 407 Subsequent Remedial Measures

Negligence, Culpable Conduct, A defect in product or its design, or a need for a warning or instruction.

Is "always being careful" admissible under 406 as a habit?

No. it is a character trait, not a practice.

Effect of a Stipulation on Relevance

None, but it may decrease the probative value under 403 where there are alternative means of proof. However, a stipulation may be unable to convey a narrative (compare injuries to legal status).

Effect of Acquittals & Pardons on 609 evidence

Not admissible, the probative value drops to 0.

Exceptions to prohibition on victim's sexual conduct or preferences under Rule 412 in a Criminal Case

Offered to prove mistaken identity Specific instances are with the accused and offered to prove consent (or offered by prosecution) exclusion would violate constitutional rights

Specific instances of conduct tending to show a witness's character for truthfulness is admissible

On cross If the court allows it But extrinsic evidence is not admissible

Relevance of Similar Acts Under 404(b) and 401

Only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.

United States v. Biaggi - Court excluded immunity negotiations that tended to show Mariotta's consciousness of innocence. Mariotta did not give information on other officers which demonstrates his consciousness of innocence because he would have taken the chance to gain immunity for himself. Government argues that these were inadmissible as plea negotiations. Admissible under 403?

Rejection of an offer to plead guilty could evidence an innocent state of mind, but not as strongly as the rejection of an opportunity to preclude all exposure to a conviction. The probative force of a rejected immunity offer is enough to make it relevant. Under 403 it is a close question. Given the controversy over Mariotta's knowledge of wrongdoing, the denial of such knowledge in response to an offer of immunity.

United States v. James - defense seeks to submit court documents of the victims violent history to support her testimony that she was afraid of the victim given the stories he had told her. Is the evidence relevant?

Relevant. Even though she did not know about the documents. If the events from his story were true, it is more likely that he told her the story rather than making it up.

Relevance of examiner's testimony that the defendant submitted to a polygraph test willingly and unhesitatingly.

Relevant. Evidence tends to show consciousness of innocence.

Effect of an appeal on 609 evidence

Remains admissible, you can just introduce evidence of the appeal

102 Purpose

Rules should be construed . . .to the end of ascertaining the truth and securing a just determination.

Allowed Evidence Rule 412 Civil Sex Offense Cases

Sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Reputation only if the victim has placed it in controversy.

Methods of Impeachment

Statements on this Occasion Character for Truthfulness Contradiction

Schickels Factors for Evaluating Prior Bad Acts Evidence under 403

Strength of the Evidence as to the Commission of the Other Crime Similarities between the Crimes Interval of Time between the Crimes Need for the Evidence Efficacy of Alternative Proof Degree to which the evidence probably will rouse the jury to hostility

Unfair Prejudice

Tending to lead the jury to make its decision on an improper basis.

West Valley City v. Fieeiki - Highway patrol was involved in a domestic dispute with his wife and retained an atty to represent him because of the risk of losing his job if he were charged. Talked with the prosecutor before any charge was made. Prosecutor then sought to offer the defendant's statements after charges were brought. Admissible under 410 and 403?

The court found that there was nothing in the record to show that the interview would yield a negotiated plea for a charge that had not yet been filed. Attys must make a written record that an interview is part of a rule 410 plea negotiation.

Acceptable Uses 408 - Compromise Offers and Negotiations

The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Methods of Proving Character under 405(a) on Cross Examination using a Character Witness

The court may allow inquiry into specific instances of conduct

Ruling on the Fuhrman Tapes - Under Rule 403, the court allowed playing the recording of an officer using a racial epithet but not all 41 instances.

The number of instances and playing only one instance was needed to impeach the witness. Playing the other 40 instances would be cumulative.

1101 (c) Rules on Privilege

The rules on privilege apply to all stages of a case or proceeding.

1101 (b) To Cases and Proceedings

These rules apply in: civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; criminal cases and proceedings; and contempt proceedings, except those in which the court may act summarily.

1101 (a) To Courts and Judges

These rules apply to proceedings before: United States district courts; United States bankruptcy and magistrate judges; United States courts of appeals; the United States Court of Federal Claims; and the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

1101 (d) Exceptions

These rules — except for those on privilege — do not apply to the following: (1) the court's determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: extradition or rendition; issuing an arrest warrant, criminal summons, or search warrant; a preliminary examination in a criminal case; sentencing; granting or revoking probation or supervised release; and considering whether to release on bail or otherwise.

Michelson v. United States - Bribery charge, d argued he only gave the money because of a threat. D had failed to disclose a prior conviction on an application. D called reputation witnesses. All testified of his good character and reputation. On cross, prosecutor asked about a specific instance (prior arrest).

This is allowed under 405(a). On cross examination the court may allow inquiry into specific instances as long as there is a good faith basis for believing that the event actually happened.

Tuer v. McDonald - Medical Malpractice for stopping a medication because it would be unsafe to restart it. Later the hospital guidelines were changed. Admissible under 403 and 407?

Two justifications support excluding evidence of subsequent remedial measures: (1) the subsequent conduct is not an admission since it is also consistent with mere accident and (2) public policy considerations support encouraging, or at least not discouraging, people to take steps to increase safety. Here the change does not suggest that the doctor did not believe his judgment call was not appropriate at the time. On either rationale the evidence only shows a reevaluation of the risks in light of what happened in this case, which is precisely what the exclusionary provision seeks to encourage.

Mahlandt v. Wild Canid Survival and Research Ctr. - A wolf attacked the boy and the dog. Assuming both the beagle's owner and the child sue and each attempt to introduce evidence that the wolf was chained up after learning of the attack on the dog. Is chaining up the dog admissible under 403?

Under a 407 challenge, chaining up the dog was a remedial measure and therefore may not be introduced to prove negligence, culpable conduct, a defect in a product or design, or need for a warning. However, if there were another purpose such as impeachment or to respond to a dispute of ownership, control or the feasibility of precautionary measures, the evidence could come in.

Specific Instances of Conduct are allowed under 405(b)

Where character is an essential element of a claim or defense.

Prohibited Uses 408 - Compromise Offers and Negotiations

either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Witness's character using specific instances of conduct (other than criminal conviction) under 608(b)

extrinsic is not admissible in order to attack or support the witness's character.

Exceptions to prohibition on victim's sexual conduct or preferences under Rule 412 in a Civil Case

if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party

Acceptable Uses 407 Subsequent Remedial Measures

impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Hearsay of Declarant-Witness's Prior Statements under 801(d)(1)

inconsistent and under oath consistent and to rebut a charge of fabrication identifies a person previously perceived

406 Habit

may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Responses to a 404 claim that propensity evidence is being offered

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Attacking a witness's character using evidence of a criminal conviction if the crime is not a felony

must be admitted if the court can readily determine that establishing the elements of the the crime required proving a dishonest act or false statement

Attacking a witness's character using evidence of a criminal conviction if the crime was a felony under 609

must be admitted subject to 403 in a civil or criminal case in which the witness is not a defendant must be admitted in a criminal case in which the witness is a defendant if the probative value outweighs its prejudicial effect.

Attacking witness's character using a criminal conviction older than 10 years

only if the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable written notice.

Prohibited evidence (of the victim) under 412

other sexual behavior victim's sexual predisposition except: (in a criminal case) to prove mistaken identity, to prove consent, evidence would violate constitutional rights (in a civil case) evidence proves behavior or predisposition and the probative value substantially outweighs the danger of harm to the victim. Victim's reputation is admissible only if the victim places it in controversy.

Felonies over 10 years old under 609

probative value (proof of dishonesty) substantially outweigh the prejudicial effect (propensity reasoning). the proponent gives reasonable notice.

Acceptable Uses 411 Liability Insurance

proving a witness's bias or prejudice or proving agency, ownership, or control

Prohibited Uses Rule 404(b) Crimes Wrongs or Other Acts

to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character

Prohibited Uses 411 Liability Insurance

to prove whether the person acted negligently or otherwise wrongfully

609 in general

within 10 years,