Evidence Flashcards
Summary
Under the Federal Rules of Evidence, witnesses can be impeached with evidence of prior convictions and/or specific instances of misconduct. Whether evidence of prior convictions should be admitted to impeachgenerally depends on the nature of the crime, the amount of time that has passed, and (only in criminal cases) whether the “witness” is the defendant. FED.R. EVID. 609(a).
In this civil case, evidence of the inmate’s conviction for distribution of marijuana should be admitted to impeach the inmate because he was convicted of a felony and was released from prison fewer than 10 years ago. FED.R.EVID. 609(a)(1). Credibility is critically important in this case because the jury will hear conflicting testimony from the two disputing parties and there were no other eyewitnesses to the altercation. Under Rule 609(a)(1), the inmate’s conviction should be admitted because it has some bearing on his credibility and its probative value is not substantially outweighed by concerns of unfair prejudice, confusion, or delay. Id.
Evidence of the inmate’s misdemeanor conviction for perjury must be admitted because the crime “required proving—or the witness’s admitting—a dishonest act or false statement” by the inmate. FED.R.EVID. 609(a)(2).
Evidence of the inmate’s felony conviction for sexual assault should be excluded because its probative value is substantially outweighedby the danger of unfair prejudice to the inmate based on the heinous nature of the crime. FED.R.EVID. 609(a)(1). In the alternative, the judge could limit the evidence relating to this conviction by excluding details of the inmate’s crime.
In all civil(and criminal) cases, witnesses can also be impeached with evidence of specific instances of prior misconduct that did not result in a conviction. FED.R.EVID. 608(b). Pursuant to Rule 608(b), misconduct probative of untruthfulness can be inquired into on cross-examination but cannot be proved through extrinsic evidence. Id. Thus, the inmate’s counsel should be permitted to cross-examine the guard regarding the false statement in the guard’s résumé. However, extrinsic evidence of the guard’s misconduct (i.e., the guard’s authenticated résumé and transcript from the local college) should not be admitted, even if the guard denies wrongdoing or refuses to answer cross-examination questions about these matters. Id
Under what circumstances can evidence of prior convictions be used to impeach a witness’s credibility in a civil case?
The Federal Rules of Evidence permit impeachment of witnesses with evidence of prior convictions.
Whether convictions should be admitted to impeach generally depends on the nature of the crime, the amount of time that has passed, and (only in criminal cases) whether the “witness” is the defendant. FED.R.EVID. 609(a). Under Rule 609(a), evidence of prior convictions may be admitted for the purpose of “attacking a witness’s character for truthfulness.” Id.
There are two basic types of convictions that can be admitted for the purpose of impeachment:
(1) convictions for crimes “punishable by death or by imprisonment for more than one year” (which generally correlates to “felonies”), FED.R.EVID. 609(a)(1); and
(2) convictions “for any crimes regardless of the punishment . . .if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement. ”FED.R.EVID. 609(a)(2).
Pursuant to Rule 609(a)(1), in civil cases, the admission of evidence of a felony conviction is “subject to Rule 403 [which says that a court may exclude relevant evidence if its probative value is substantially outweighed by other factors].”FED.R.EVID. 609(a)(1). However, Rule 403 does not protect the witness against admission of prior convictions involving dishonesty—which must be admitted by the court. FED.R.EVID. 609(a)(2).
Finally, Federal Rule of Evidence 609(b) contains the presumption that a conviction that is more than 10 years old, or where more than 10 years has passed since the witness’s release from confinement (whichever is later), should not be admitted unless “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and the proponent has providedthe adverse party with reasonable written notice.
May the inmate’s credibility be impeached by evidence of a 12-year-old felony drug conviction, if he was released from prison 9 years ago? Rule
The court should admit evidence of the inmate’s 12-year-old felony marijuana distribution conviction.
The inmate’s conviction for marijuana distribution was for a felony punishable by imprisonment for more than one year. See FED.R.EVID. 609(a)(1). Moreover, although the conviction was 12 years ago, the 10-year time limit of Rule 609(b) is not exceeded because that time limit runs from the date of either “the witness’s conviction or release from confinement for it, whichever is later.” FED.R.EVID. 609(b). Because the inmate served three years in prison, he was released from confinement nine years ago.
However, pursuant to Rule 609(a)(1), the admission of felony convictions to impeach a witness in a civil case is “subject to Rule 403.”FED.R.EVID.609(a)(1). Neither Rule 609(a) nor the advisory committee notes specify which factors courts should consider when balancing the probative value of a conviction against the dangers identified in Rule 403 (which include (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) waste of time or undue delay, and (5) needless presentation of cumulative evidence). FED.R.EVID. 403.
May the inmate’s credibility be impeached by evidence of a 12-year-old felony drug conviction, if he was released from prison 9 years ago? Application
In this case, credibility is very important because the evidence consists primarily of the testimony of the disputing parties and there were no other eyewitnesses to the altercation. This enhances the probative value of any evidence bearing on the inmate’s credibility. A court is likely to conclude that the inmate’s prior felony drug conviction is relevant to his credibility. See, e.g., United States v. Brito, 427 F.3d 53, 64 (1st Cir. 2005) (“Prior drug-trafficking crimes are generally viewed as having some bearing on veracity.”). Although the probative value of any conviction diminishes with age, see, e.g., United States v. Brewer, 451 F. Supp. 50, 53 (E.D. Tenn. 1978), the inmate’s ongoing problems with the law suggest that he has continued (and even escalated) his criminal behavior over the past nine years. The court should admit this evidence because its probative value is not substantially outweighed by any Rule 403 concerns. Specifically, any prejudice to the inmate would be slight because the conviction is unrelated to the altercation at issue and the conviction was not for a heinous crime that might inflame the jury.
[NOTE: Whether an examinee identifies the jury instruction as containing a “conclusive” or “mandatory” presumption is less important than the examinee’s analysis of the constitutional infirmities.]
May the inmate’s credibility be impeached by evidence of an 8-year-old misdemeanor perjury conviction that was punishable by 1 year in jail, if he pleaded guilty and was sentenced only to pay a $5,000 fine?
The court must admit evidence of the inmate’s eight-year-old misdemeanor conviction because perjury is a crime of dishonesty.
Rule 609(a)(2) provides that evidence of a criminal conviction “must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” FED.R.EVID. 609(a)(2). The inmate’s conviction for perjury would have necessarily required proving that the inmate engaged in an act of dishonesty. This conviction occurred within the past 10 years, so it “must be admitted” because, in contrast to Rule 609(a)(1) (discussed in Point One(a)), admission under Rule 609(a)(2) is mandatory and not subject to Rule 403.
May the inmate’s credibility be impeached by evidence of a 7-year-old sexual assault conviction if the inmate is still serving a 10-year prison sentence and the victim was his 13-year-old daughter?
The court should exclude evidence of the inmate’s seven-year-old felony sexual assault conviction because the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. In the alternative, the details of the prior conviction could be excluded.
The inmate’s conviction for felony sexual assault was seven years ago, and he has not yet been released from incarceration, so Rule 609(a) but not 609(b) is applicable here. FED.R.EVID. 609(a). This conviction is therefore admissible to impeach the inmate, unless its probative value is substantially outweighed by the danger of unfair prejudice or any other Rule 403 concern. Id. Sex crimes are generally not considered relevant to credibility, see Hopkins v. State, 639 So. 2d 1247, 1254 (Miss. 1993), so the probative value of this conviction is relatively low. Moreover, the heinous nature of the inmate’s crime (sexual assault on his daughter) makes the danger of unfair prejudice to the inmate very high. Thus, the court should exclude evidence of the conviction because it was for a heinous offense that is likely to inflame the jury and it has little bearing on credibility. See, e.g., United States v. Beahm, 664 F.2d 414, 419 (4th Cir. 1981).
As an alternative to excluding this evidence, the judge could minimize the unfair prejudice to the inmate by permitting limited cross-examination but refusing to allow specific questions about the nature of the inmate’s conviction. For example, a court could limit cross-examination to the fact that the inmate was convicted of a “felony” or perhaps that he was convicted of a “sexual assault” without identifying the victim. However, because evidence of the inmate’s prior convictions can be admitted solely for the purpose of enabling the jury to assess his credibility and because his two earlier convictions should have already been admitted, the court should exclude all evidence of the felony sexual assault conviction.
May the guard’s credibility be impeached by cross-examination regarding specific instances of misconduct (i.e., lying on his résumé) relevant to credibility?
The court should permit the inmate’s counsel to cross-examine the guard regarding the false statement in his résumé because the guard’s misconduct bears on his truthfulness.
The inmate wishes to cross-examine the guard about his prior dishonest behavior—lying on his résumé—that did not involve a criminal conviction. Rule 608(b) allows witnesses to be cross-examined about specific instances of prior non-conviction misconduct probative of untruthfulness “in order to attack . . . the witness’s character fortruthfulness.”FED.R.EVID. 608(b).
The court’s decision to allow cross-examination about the guard’s prior dishonest behavior depends on the probative value of such evidence balanced against the danger of unfair prejudice to the guard or any other Rule403 concern. FED.R.EVID. 403. Here, the guard’s false statement on his résumé that he obtained a degree in Criminal Justice is highly probative of his untruthfulness because it grossly misrepresents his actual academic record, was made recently, and was made with the intent to deceive. Because the probative value of this evidence is very strong and is not substantially outweighed by any Rule 403 concerns, cross-examination of the guard on this topic should be permitted. The court may also consider it fair to permit this cross-examination of the guard on these matters, assuming that one or more of the inmate’s prior convictions have been admitted to impeach his credibility.
May the guard’s credibility be impeached by admission of extrinsic evidence (his résumé and academic transcript) offered to prove specific instances of misconduct relevant to credibility?
The court should exclude extrinsic evidence of the guard’s non-conviction misconduct, even if the guard denies wrongdoing or refuses to answer questions about the matter.
Although Rule 608(b) allows cross-examination about specific instances of prior misconduct probative of untruthfulness, “extrinsic evidence” offered to prove such misconduct is not admissible. FED.R.EVID. 608(b). The rationale for this rule is that allowing the introduction of extrinsic evidence of prior misconduct by witnesses, when these acts are relevant only to the witnesses’ truthfulness and not to the main issues in the case, would create too great a risk of confusing the jury and unduly delaying the trial. The court does not have discretion to admit this extrinsic evidence. See, e.g., United States v. Elliot, 89 F.3d 1360, 1368 (8th Cir. 1996).
Here, the inmate’s counsel may cross-examine the guard about the false statement on his résumé. However, the inmate’s counsel must accept the guard’s response. Even if the guard denies wrongdoing or refuses to answer questions about the matter, the inmate’s counsel cannot introduce the guard’s résumé or the transcript from the local college to prove the guard’s misconduct.
