Character Evidence/Impeachment

Question 1

When does the Confrontation Clause bar statement to be admitted?

Answer 1

(1) The statement is offered against the accused in a criminal case,
(2) The declarant is unavailable,
(3) The statement was “testimonial” in nature, and
(4) The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

Question 2

What is a testimonial statement?

Answer 2

Statements made in the course of police investigation

• Testimonial - when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation (e.g. statements to police describing a crime after it has concluded)
• Nontestimonial - statements made to enable the police to help in an ongoing emergency (e.g. 911 call during ongoing crime)

Affidavits or written reports of forensic analysis

• Testimonial - reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (e.g. fingerprint test results)
• Inadmissible unless the defendant previously had an opportunity to cross-examine the author of the report

Question 3

Who has the burden of producing evidence?

Answer 3

The party who has the burden of pleading usually has the burden of producing evidence sufficient to make a prima facie case

• Prima facie - create a fact question of the issue for the trier of fact

Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence

Question 4

Who has the burden of persuasion (proof)

Answer 4

The party who has the burden of persuasion also has the burden of proof

• After the party has met the burden of persuasion, the question becomes whether the party satisfied its burden of proof

For civil cases, the burden is usually by a preponderance of the evidence (more probable than not)

Some civil cases require clear and convincing evidence

For criminal cases, the burden is beyond a reasonable doubt

Question 5

What is a presumption?

Answer 5

A rule that requires that a particular inference be drawn from an ascertained set of facts.

The effect of a presumption is it shifts the burden of production to the party against whom the presumption operates (a rebuttable presumption)

It does not shift the burden of persuasion

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact (rebutting the presumption)

Question 6

When is opinion testimony admissible by a lay witness?

Answer 6

General appearance or condition of a person

State of emotion

Sense recognition

Voice or handwriting identification

Speed of moving objects

Value of his own services

Rational or irrational nature of another’s conduct

Intoxication of another

Question 7

What are the general rules for a witness to testify on a matter?

Answer 7

(1) The witness has personal knowledge of the matter, and
(2) The witness declares he will testify truthfully

Question 8

What is a present recollection refreshed?

Answer 8

Any writing may be used to refresh a witness’s memory (a photograph may also be used)

The witness cannot read from the writing while testifying

There is no hearsay problem because the writing is not introduced into evidence

Question 9

What is a past recollection recorded?

Answer 9

Introduction of a writing that meets the following foundational requirements:

• The witness had personal knowledge of the facts in the writing
• The writing was made by the witness or under her direction, or adopted by the witness
• The writing was timely made when the matter was fresh in the witness’s mind
• The writing accurately reflects the witness’s knowledge
• The witness has insufficient recollection to testify fully and accurately

The writing is read into evidence

• But is not received as an exhibit for admission into evidence unless introduced by the adverse party

This is hearsay but falls within a hearsay exception

Question 10

What is spousal immunity?

Answer 10

One spouse cannot be compelled to testify against the other spouse in any criminal proceeding

Only the witness-spouse may invoke spousal immunity (i.e. the party-spouse cannot prevent the witness spouse from testifying)

The privilege can be claimed only during marriage, but covers information learned before and during marriage

Question 11

What are confidential marital communications?

Answer 11

Communications made in reliance upon the intimacy of the marital relationship are privileged. The privilege applies in both civil and criminal proceedings

Both spouses have the privilege not to disclose, and to prevent the other from disclosing, a confidential marital communication

The privilege survives the marriage, but covers only statements made during the marriage

Question 12

When is evidence relevant?

Answer 12

Probativeness: If it has any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence

Is the evidence probative of a material issue

Is the probative value substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury

Unfair surprise is not a valid ground for excluding evidence

Question 13

What is character evidence?

Answer 13

Evidence submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person

The witness has a propensity to act in a certain way

Question 14

When is character evidence admissible?

Answer 14

May be offered as substantive evidence to (1) prove character when it is the ultimate issue in the case, or (2) serve as circumstantial evidence of how a person probably acted

Question 15

What types of character evidence are admissible?

Answer 15

Evidence of specific acts

Opinion testimony of a witness who knows the person, and

Testimony as to the person’s general reputation in the community

Question 16

What are the rules for admission of character evidence in a criminal case?

Answer 16

The prosecution cannot initiate evidence of bad character of the defendant merely to show the defendant is more likely to have committed the crime (cannot be used to show propensity)

The accused may introduce evidence of her good character to show innocence of the alleged crime (open the door)

• But the prosecution may rebut evidence of the accused’s good character

Question 17

How can the accused prove character?

Answer 17

A witness for the defendant may testify as to the defendant’s good reputation for the trait in question and may give personal opinions concerning that trait

If the defendant takes the stand, he does not put his character at issue

Instead, he puts his credibility at issue (i.e. the prosecution is limited to impeachment evidence)

Question 18

How does the prosecution rebut defendant’s character evidence?

Answer 18

Cross examining the character witness regarding the basis of the testimony, including if he knows or has heard of specific instances of the defendant’s conduct

• The prosecution may not introduce any extrinsic evidence

Calling its own witness to testify to the defendant’s bad reputation or give their opinion of the defendant’s character

The prosecution may not call a witness to testify about specific acts; the prosecution may only ask the witnesses alleging good character if he knows about specific acts

Question 19

What are the rules for introducing character evidence of the victim?

Answer 19

The defendant may introduce evidence of the victim’s reputation or opinion evidence of a bad character trait when relevant to show the defendant’s innocence

• Never admissible in sexual assault cases

Often becomes relevant when the defendant claims self-defense to show the victim was the aggressor

The prosecution may then rebut with reputation or opinion evidence of (1) the victim’s good character or (2) the defendant’s bad character for the same trait

The prosecution may counter with reputation or opinion evidence (but not evidence of specific acts, e.g., starting a bar fight) of the defendant’s bad character for the same trait.

Question 20

What are the rules for character evidence for rape victims?

Answer 20

Evidence to prove sexual behavior or sexual misconduct is generally inadmissible

May be admissible to show someone other than defendant is the source of semen, injury, or other physical evidence

Specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for any reason and by the defense to prove consent

In civil cases, it may be admissible if probative value substantially outweighs unfair prejudice or danger of harm to the victim

In civil cases, evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim. Evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible in a civil case if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

The rule in criminal cases is different: Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent.

Question 21

What are the rules for victim’s character of peacefulness in a homicide case

Answer 21

In a homicide case where the defendant pleads self-defense, evidence that the victim was the first aggressor opens the door to evidence that the victim had good character for peacefulness

• Can be introduced regardless whether the defendant introduced character evidence of the victim’s generally violent propensity

Question 22

Is character evidence admissible in civil cases?

Answer 22

Generally no

Exception when character is directly at issue (e.g. defamation, negligent hiring (character of employee hired directly at issue))

Circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.

Question 23

What is habit evidence?

Answer 23

Evidence that describes a person’s regular response to a specific set of circumstances

Question 24

When are specific acts of misconduct admissible?

Answer 24

Inadmissible to show propensity, criminal disposition, or bad character

May be admissible if relevant to show issues other than character or disposition (“MIMIC”)

• Motive
• Intent
• Mistake (absence of mistake)
• Identity
• Common plan or scheme

Probative value must not be substantially outweighed by the danger of unfair prejudice

Evidence of an accused’s other crimes or misconduct is admissible if relevant to an issue other than the accused’s criminal disposition.

There must be sufficient evidence to support a jury finding that the defendant committed the prior act

Question 25

When are prior acts of sexual assault or child molestation admissible?

Answer 25

In a civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation

Question 26

What types of evidence are excluded for public policy reasons?

Answer 26

Liability insurance

Subsequent remedial measures

Settlement offers or negotiations

Withdrawn guilty pleas or offers to plead guilty

Offers to pay or payment of medical expenses

Question 27

What are the rules for inadmissibility of liability insurance?

Answer 27

Evidence of liability insurance or lack thereof is inadmissible to show negligence or ability to pay

It may be admissible (1) to prove ownership or control, (2) to impeach, or (3) as part of an admission of liability

Question 28

What are the rules for subsequent remedial measures?

Answer 28

Evidence of repairs or other precautionary measures is inadmissible to prove negligence, culpable conduct, defects, or a need for warning or instruction.

It may be admissible to (1) prove ownership or control, (2) rebut a claim that the precaution was not feasible, or (3) prove that the opposing party has destroyed evidence

Question 29

What are the rules for settlement offers?

Answer 29

Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim, or to impeach a witness by prior inconsistent statements.

Conduct or statements made in the course of negotiating a compromise, including direct admissions of liability, are also inadmissible

There must be some indication that the party is going to make a claim for the rule to apply

Question 30

What is the rule for offers to pay medical expenses?

Answer 30

Payment of or offers to pay the injured party’s medical expenses are inadmissible.

However, admissions of facts accompanying offers to pay medical expenses are admissible

Be careful that the offer is not an offer to compromise, which would be an inadmissible settlement offer (i.e. I will pay your medical expenses if you drop the case is inadmissible)

Question 31

What is the rule for withdrawn guilty pleas?

Answer 31

Withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and statements made in negotiating such pleas are generally inadmissible in any proceeding

Question 32

What are the jury instructions for judicial notice?

Answer 32

Civil - a judicially noticed fact is conclusive

Criminal - the jury is instructed that it may, but is not required, to accept the judicially noticed fact as conclusive

Question 33

What is the meaning of impeachment?

Answer 33

Casting of an adverse reflection on the veracity of the witness

Generally, a party may not bolster or accredit the testimony of his witness until the witness has been impeached

Question 34

What are the methods of impeachment?

Answer 34

Cross examination - eliciting facts from a witness that discredits his own testimony, or

Extrinsic evidence - calling other witnesses or introducing evidence that prove the impeaching facts

Question 35

What are the rules for prior inconsistent statements?

Answer 35

A party may show, by cross examination or extrinsic evidence, that the witness has on past occasions made statements inconsistent with his present testimony

Prior inconsistent statement are generally hearsay and admissible only for impeachment purposes

Question 36

What is the rule for bias or interest?

Answer 36

Evidence that a witness is biased or has an interest in the outcome of the suit tends to show the witness has a motive to lie, and may be used for impeachment

Question 37

What are the rules for conviction of a crime?

Answer 37

A witness may be impeached by proof of conviction (arrest or indictment not enough)

Types of crimes admissible:

• Any crime involving dishonesty or a false statement, felony or misdemeanor
• A felony not involving dishonesty or false statement
  
  • The court has discretion to exclude if (1) probative value is substantially outweighed by undue prejudice (often admitted if not against a criminal defendant), or (2) the witness being impeached is a criminal defendant and the prosecution has not shown the conviction’s probative value outweighs its prejudicial effect (often excluded)
• If more than 10 years have passed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible
• Juvenile convictions are inadmissible

The trial court never has the discretion to disallow impeachment by evidence of a recent prior conviction involving dishonesty or a false statement. This applies to misdemeanors and felonies, as long as dishonesty or a false statement is involved. Note that not all crimes of moral turpitude involve dishonesty.

The court may disallow impeachment by evidence of such a conviction, if it is too remote in time.

In extraordinary circumstances, a conviction older than 10 years can be admitted, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party is given notice that the conviction is to be used as impeachment.

Question 38

When are specific acts of misconduct admissible for impeachment?

Answer 38

If the act of misconduct is probative of truthfulness (i.e. an act of deceit or lying)

Extrinsic evidence of bad acts is not permitted

A witness may be impeached for opinion or reputation evidence of untruthfulness

Question 39

What are the methods of rehabilitating an impeached witness?

Answer 39

Explanation on redirect

Good reputation for truthfulness (by calling other witnesses to testify on good reputation)

Prior consistent statements

Question 40

When can a party impeach its own witness?

Answer 40

When the witness:

(1) Is an adverse party or identified with an adverse party
(2) Is hostile and uncooperative
(3) Is one whom the party is required by law to call, or
(4) Gives surprise testimony that is harmful to the party calling him

Question 41

Can a prior conviction be used to impeach even if the witness is currently appealing the conviction?

Answer 41

Yes

However, the pendency of the appeal may be shown.

Where a prior felony conviction was obtained in violation of the defendant’s Sixth Amendment rights (e.g., to have counsel, to confront witness, etc.), the conviction is generally invalid for all purposes—including impeachment.

Question 42

May a declarant unavailable at trial be impeached?

Answer 42

Yes

The credibility of an unavailable hearsay declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. The unavailable hearsay declarant may be impeached with evidence of her prior inconsistent statement, and the foundational requirement that she must explain or deny her statement does not apply. There is no requirement that a declarant must be present at trial to be impeached

Question 43

Can evidence of bias be admissible for impeachment purposes even if it cannot be admitted as substantial evidence?

Answer 43

Yes

Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.

Extrinsic evidence of a witness’s bias prior to the witness’s testimony would not be allowed because of foundational requirements.

The party must first ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias.

Although a party is permitted to show a witness’s bias or interest, another party may not subsequently show that the witness’s bias is justified.

A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid (i.e. the witness must admit to the bias). If the witness denies bias, then extrinsic evidence cannot be introduced because of foundational issues.

If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias

Question 44

What is impermissible for impeachment of bad acts?

Answer 44

Extrinsic evidence (e.g., calling another witness or introducing a record) of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination.

A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness.

If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

However, if the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry. Eventually, the cross-examiner must accept the witness’s answer and move on.

Question 45

For impeachment, when is cross examination of a witness’s prior bad act permissible?

Answer 45

Only if the act is probative of truthfulness

Question 46

What is the standard for admitting a prior felony conviction of the accussed in a criminal case?

Answer 46

The felony conviction will be admitted only if the government shows that its probative value as impeachment evidence outweighs its prejudicial effect.

Question 47

When can a prior consistent statement not be used to rehabiiliate a witness?

Answer 47

A prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct.

Prior consistent statements are admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate.

Also, when opposing counsel has impeached the credibility of a witness on some noncharacter ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility

Question 48

What is the standard for admissibility of extrinsic evidence for prior bad acts?

Answer 48

Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination.

If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about.