Class 9: Rule of Completeness, Character Evidence and the Rules, Proving Character as an Element, Character Evidence to Prove Propensity - Feb. 6 Flashcards
What is the rule of completeness? (Q)
The rule of completeness provides that if a party introduces all or part of a writing or recorded statement into evidence, the opposing party may require the introduction of any other part of that statement, or any other writing or recorded statement, that in fairness should be considered at the same time.
(FRE 106)
Does the rule of completeness generally apply to oral statements? (Q)
No. The rule of completeness does not generally apply to oral statements.
(FRE 106)
Under what circumstance is a portion of a written or recorded statement admissible as a matter of fairness? (Q)
A portion of a written or recorded statement is admissible as a matter of fairness if the proponent of evidence introduces only another portion of the written or recorded statement. The opponent can then force the contemporaneous introduction of the remainder of the statement if the remainder should be considered at the same time.
(FRE 106)
When must an opposing party seek to introduce additional evidence that she claims should be considered in fairness under the rule of completeness? (Q)
Once a party introduces all or part of a writing or recorded statement into evidence, an opposing party who seeks to introduce additional evidence that she claims should be considered in fairness under the rule of completeness must request the introduction of the additional evidence contemporaneously with the introduction of the writing or recorded statement.
(FRE 106)
Does the rule of completeness automatically make the entirety of a writing or recorded statement admissible if the proponent has admitted only a portion of the writing or recorded statement? (Q)
No. The rule of completeness does not automatically make the entirety of a writing or recorded statement admissible if the proponent has admitted only a portion of the writing or recorded statement.
(FRE 106)
In order to introduce the remainder of a statement or a related statement, what foundation must the opponent of an admitted written or recorded statement lay? (Q)
In order to introduce the remainder of a statement or a related statement, the opponent of the initial statement must show that the remainder of the statement or a related statement is relevant to an issue in the case (i.e., it has the tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence).
(FRE 106)
A sailor brought a negligence claim against a ship’s owners after he slipped and fell while on board the ship, dislocating his shoulder. The sailor alleged that he slipped on water on the floor of the galley. The ship owners maintained that the floor was dry and that the sailor had been out drinking the night before, came to work drunk, and fell as a result of his intoxication. The sailor offered a one-page summary of his hospital record which outlined his injury and treatment. It did not mention alcohol intoxication. The ship owners immediately moved to contemporaneously admit a separate portion of the hospital record that mentioned the sailor was acutely intoxicated. The sailor objected on the ground that the rule of completeness only allowed for admission of the remainder of a written or recorded statement but did not allow for the admission of a separate statement.
How should the court rule? (Q)
The court should admit the hospital record. Under the rule of completeness, if the proponent of evidence introduces only a portion of a written statement, the opponent can force the introduction of a related writing if, in fairness, the related writing should be considered at the same time. The party invoking the rule of completeness must show that the related writing is relevant and necessary to explain the admitted portion, place the admitted statement in context, avoid misleading the trier of fact, or ensure that the trier of fact has a fair and impartial understanding of the admitted statement.
Here, the hospital record is relevant to the cause of the accident. Admitting only the summary could cause the jury to conclude that the hospital personnel saw no evidence of intoxication. Thus, the court should admit the hospital record under the rule of completeness.
(FRE 106)
The defendant was charged with receipt of material involving the sexual exploitation of minors. The defendant gave a videotaped statement to the police in which he confessed to the crime and also made wide-ranging statements about his prior prison sentence, his remorse, and his church activities. The prosecution introduced a redacted version of this statement showing the jury only the portion related to the confession. The defendant moved under the rule of completeness to admit the remainder of the statement because it would humanize him and show his contrition. The prosecutor objected that the remainder of the videotape was not relevant and was therefore inadmissible.
How should the court rule? (Q)
The court should not admit the remainder of the confession. Under the rule of completeness, if the proponent of evidence introduces a portion of a recorded statement, the opponent can force the introduction of the remainder of the statement if, in fairness, the remainder should be considered at the same time. The party invoking the rule of completeness must show that the remainder is relevant and necessary to explain the admitted portion, place the admitted statement in context, avoid misleading the trier of fact, or ensure that the trier of fact has a fair and impartial understanding of the admitted statement.
Here, the defendant did not identify any fact of consequence that would be made more or less likely by the admission of the remainder of the confession. It is not relevant, even if it is part of the full recording. Thus, the court should not admit the remainder of the statement.
Under what circumstances can a party offer extrinsic evidence of specific instances of a witness’s untruthful conduct in order to attack or support the witness’s character? (Q)
A party can offer extrinsic evidence of specific instances of a witness’s untruthful conduct in order to attack or support the witness’s character only if the untruthful conduct resulted in a criminal conviction.
Although an attorney can cross-examine a witness about a specific prior act in order to attack or support the witness’s character for truthfulness, the attorney must generally accept the answer and move on to the next question.
At what point during a trial can a party ask a witness about a specific instance of conduct in order to attack or support the witness’s character for truthfulness? (Q)
Cross-examination is the only point at which a party can ask a witness about a specific instance of conduct in order to attack or support the witness’s character for truthfulness.
(FRE 608(b))
A defendant was charged in federal court with receipt of stolen goods. The defendant testified in his own defense. On cross-examination, the prosecutor asked the defendant if he had ever made a false claim for insurance. The defendant denied ever making such a claim. The prosecutor called an insurance adjuster to the stand and asked her if the defendant had ever make a false claim for insurance. The defense attorney objected, arguing that the investigator’s testimony represented improper extrinsic evidence of a prior bad act.
How should the court rule on the objection? (Q)
The court should sustain the objection. A party can, on cross-examination, ask a witness about specific conduct that is probative of the witness’s character for truthfulness but a party cannot offer extrinsic evidence of the conduct. Calling a witness to testify to the point is extrinsic evidence, just like a document or other real evidence.
Here, the witness’s alleged prior false claim is a specific act that is probative of the witness’s character for truthfulness. The prosecutor wants to use the adjuster’s statement to show that the defendant is a liar. A reasonable jury could conclude that, because the witness lied in the past, the witness was more likely to lie on the stand. However, the prosecutor cannot introduce any extrinsic evidence of the defendant’s conduct and cannot ask the adjustor about the defendant’s history of false claims. Thus, the court should sustain the objection.
In which three ways can a party attack or support a witness’s character for truthfulness? (Q)
A party can attack or support a principal witness’s character for truthfulness by:
(1) calling a separate witness (i.e., a character witness) who will testify about the principal witness’s reputation for truthfulness or give an opinion of the principal witness’s character for truthfulness;
(2) asking the principal witness questions on cross-examination about specific instances of conduct that are probative of the principal witness’s own truthfulness; or
(3) asking about, or offering extrinsic evidence of, the principal witness’s prior criminal convictions.
What is propensity evidence? (Q)
Propensity evidence is evidence offered to show that a person has a specific character or character trait and therefore likely acted in a way consistent with that character or trait.
What is character evidence? (Q)
Character evidence is evidence regarding a person’s mental and moral qualities. Character evidence is generally not admissible to show that a person acted in conformity with that character because of the potential that a jury would make improper inferences from that evidence. However, character evidence may be admissible for other reasons, such as impeaching a witness.
Can a party offer evidence to show that a person has a specific character or character trait and therefore likely acted in a way that was consistent with that character or trait? (Q)
No. Evidence offered to show that a person has a specific character or character trait and therefore likely acted in a way that was consistent with that character or trait—often called propensity evidence or character to prove conformity—is forbidden.
