Impeachment/Character/Hearsay Rules Flashcards
Who can first use character evidence in a criminal case?
The defendant may introduce evidence of a relevant good character trait to establish that he acted in conformity and did not commit the crime. But is limited to opinion and reputation testimony.
Can the prosecution introduce character evidence of the defendant’s bad character if the purpose is to show D acted in conformity?
No, the Prosecution may not introduce opinion or reputation of D’s bad character if the purpose is to show that D probably acted in conformity with that character
What is the effect of the defendant introducing evidence of good character for a relevant trait?
The prosecution may
1) cross-examine and ask the witness if they are aware of something OR
2) present opinion or reputation testimony of defendant’s bad character for that trait (no specific acts)
When can evidence of prior bad acts be admissible to show D probably acted unlawfully again and committed the crime?
Evidence of prior crimes or bad acts is never admissible to show D probably acted unlawfully again and committed the crime.
What is the effect of a Defendant testifying on their own behalf in a criminal and civil trial?
The defendant has automatically placed their character for truthfulness or untruthfulness in issue and the other party may present opinion or reputation evidence that they are not truthful
Is character evidence generally admissible in a civil case?
No, generally character evidence is inadmissible in a civil case.
For what purpose can prior bad acts and prior crimes be used against a defendant?
For independent purposes such as motive, intent, mistake (absence of), identity, and common plan or scheme (MIMIC)
What are the exceptions to the general rule against character evidence in a civil case?
1) character evidence is at issue or essential part of the defense/claim
2) litigant has another purpose than propensity
3) the party has testified putting their character for truthfulness (credibility) at issue and can be impeached by character evidence of untruthfulness by reputation or opinion testimony
When is character evidence essential or directly at issue?
Claims like
1) defamation (plaintiff’s character)
2) child custody (parent’s character)
3) negligent entrustment (trustee’s
character)
4) fraud (defendant’s character)
5 Major Methods for Impeachment of a Witness’s Credibility
1) Prior inconsistent statement
2) bias or motive to misrepresent
3) prior convictions
4) specific bad acts that bear on truthfulness
5) Reputation or opinion evidence of untruthfulness
Impeachment via Prior Inconsistent Statements
A party may impeach a witness by showing prior inconsistent statements but those only come in for their truth if those statements were made under oath as part of a legal proceeding
Impeachment by Showing Bias or Motive to Misrepresent
Showing bias or motive is always admissible and courts will allow extrinsic evidence if the witness denies the motive or bias
Prior Convictions Impeachment
If a prior conviction is not too remote (more than 10 years from date of release from confinement from conviction), the plaintiff may introduce
1) a prior conviction involving dishonesty or false statement (like perjury) and the court has NO discretion to exclude it
2) a prior felony conviction not relating to dishonesty is admissible but with judicial discretion to exclude if probative value substantially outweighed
3) a prior misdemeanor is not admissible
IF it is a criminal defendant being impeached with a prior conviction, the evidence must be substantially more probative than prejudicial
Impeachment via specific bad acts that bear on truthfulness or untruthfulness
Must bear on truthfulness or untruthfulness and must be raised in cross-examination
Court has discretion to exclude if the value is substantially outweighed
Arrest is not a bad act
Impeachment via reputation or opinion evidence
A testifying witness can be impeached via reputation or opinion evidence and proved by extrinsic evidence
Who may impeach a testifying witness?
Either party may. The common law rule that did not permit it except in certain circumstances is not valid anymore.
Other 2 methods of impeachment
Sensory deficiency
contradiction
What foundation is required for extrinsic evidence for prior inconsistent statement?
Extrinsic evidence is admissible for a prior inconsistent statement if at some point
1) the witness is given an opportunity to explain or deny the statement AND
2) the adverse party is given an opportunity to examine the witness about the statement
Contradiction Impeachment
Not in the federal rules but on cross you can ask a witness about something they lied or misstated during direct.
If they deny it, you can bring extrinsic evidence in so long as it isn’t a collateral issue
Can you impeach a hearsay declarant?
Yes, and you can use any of the impeachment methods. BUT importantly they don’t need to be given an opportunity to explain or deny a prior inconsistent statement
How do you rehabilitate a witness?
They can explain on redirect
Provide opinion or reputation testimony of good character for truthfulness
provide prior consistent statements if 1) accused of lying or exaggerating they show a consistent statement before the bias would purportedly arise
2) if impeached on another ground, provide prior consistent statement if under the circumstances it has a tendency to rehabilitate their credibility
Definition of Hearsay
An out of cour statement offered for the truth of the matter asserted
Hearsay Analysis Steps
1) isolate the statement
2) identify the speaker
3) Identify the purpose
What are the classic nonhearsay categories
1) prior statements of a testifying witness subject to cross-examination
2) opposing party statements
What are the three types of prior statements subject to cross?
1) Prior inconsistent statements
2) Prior consistent statements
3) Prior Identifications
Prior Inconsistent Statements NonHearsay
A witness subject to cross can bring in a prior inconsistent statement made while under oath to impeach and if under oath for its substance
Prior Consistent Statement NonhwEAY
A witness subject to cross may bring in prior consistent statements TO REBUT
1) offered for truth when charged with lying or exaggerating due to motive
2) the statement was made before the alleged motive to fabricate or lie arose
Prior identification nonhearsay
A declarant subject to cross can bring in a statement of a declarant that they identified someone after seeing them
Opposing Party Admission Generally
A nonhearsay category where the opposing party’s statements can be brought in for their truth or to impeach
Opposing Party Statements Attributable to the Party
1) nonverbal – nodding, shaking head, thumbs up, etc.
2) statements by spokesmen, employees, agents, partners that are within scope of employment/duties are attributable to opposing party; conspirators in furtherance of the conspiracy (preponderance of evidence that there was a conspiracy)
3) silence can be brought in if 1) actually heard and understood 2) mentally and physically able to respond 3) reasonable person would have objected in the circumstance
9 Most Common Tested Exceptions
1) Excited utterances
2) Present mind
3) Present Physical or mental condition
4) Statement made for purpose of medical diagnosis or treatment
5) Recorded recollection
6) Business record exception
Unavailable –
1) Former testimony
2) Dying declaration
3) Statements against interest
Excited Utterance Exception
A statement that was made immediately following a startling event while the person is still startled is admissible
Present Mind Exception
A present mind statement is admissible if
1) describing or explaining an event
2) made while the speaker was observing or perceiving the event or immediately thereafter
Statement made for purposes of medical diagnosis or treatment
An out of court statement about the nature of an injury or medical condition usually made to medical personnel is admissible hearay but only if it relates to medical treatment or diagnosis
No statements of fault
Business Record Exception
You can admit into evidence records kept in the regular course of business by a person with the duty to make records as part of their employment or who have personal knowledge of the event
Recorded Recollection Hearsay Exception
If a testifying witness’s present memory cannot be refreshed by reviewing a previously prepared memo or other record that they made or adopted at the time of the event, they can read in this record as evidence, but it isn’t an exhibit unless offered by the opposing party.
Learned Treatise Hearsay Exception
A learned treatise is admissible as substantive proof if
1) the treatise is established as reliable authority AND
2) the except is relied upon by an expert during direct or brought to an expert’s attention on cross/
These are read into evidence but not as exhibits
Remember, an expert either needs to rely on it or be impeached by it
Family Records Exception
Satements of fact found in family bible, jewelry engravings or tombstones is admissible
What are three most commonly tested hearsay exceptions that rely on witness unavailability?
1) former testimony
2) dying declaration
3) statements against interest
Constitutional Limits on Hearsay
- offered against the accused in a criminal case
- declarant is unavailable
- statement was “testimonial” in nature (sworn testimony, statements to law enforcement (sworn and unsworn) and certain documents)
- the accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial
Two types of marriage privileges
Spousal immunity
privilege for confidential marital communications
Spousal Immunity
Applies to criminal cases only
spouse of a defendant may not be called as a witness by the prosecution or be compelled to testify against the legal interests of their spouses
Must be a valid marriage for privilege to apply and only lasts as long as the marriage (MARRIED AT TIME OF TRIAL)
witness-spouse holds the privilege NOT the defendant
Privilege for Confidential Marital Communications
Applies in civil or criminal
either spouse can refuse to disclose the communication or prevent any other person from doing so.
Marital relationship must exist WHEN COMMUNICATION IS MADE, divorce doesn’t end it
Comms between spouses are generally presumed to be confidential-must be reliance on the intimacy of marital relationship, not threats or abusive language
Made in front of 3rd party waives confidential privilege
When does neither marital privilege apply
Communications or acts in furtherance of a future joint crime or fraud
In legal actions between the spouses
In cases where a spouse is charged with a crime against testifying spouse or either spouse’s children
Non-Truth Purposes
Warning or notice
Show effect on listener or reader
Circumstantial evidence of State of Mind
Legally operative
Uses of Prior Inconsistent Statements
1) Impeach the witness under cross
2) on cross, for its truth under the non-hearsay rule if the prior inconsistent statement was made under oath like a deposition
Limitation on Liability Insurance
Admissible to show
1) ownership/control over the thing
2) impeach
3) show liability
NOT ADMISSIBLE TO SHOW FAULT
Remedial Measures Limitation
Admissible to show
1) ownership/control
2) feasibility of repairs
3) destruction of evidence
INADMISSIBLE TO SHOW FAULT
Settlement Negotiations Limitation
A party may not
1) admit statements about the validity of a claim or amount of a claim
2) or impeach using statements from a settlement negotiation
IF the party’s going to make a claim and there is a dispute as the validity or amount of a claim.
Govt Civil Dispute Exception to the Settlement Negotiations Limit
Statements made in a settlement negotiation with a government authority are not excluded when offered in criminal cases
Plea Discussion Limitaiton
Otherwise relevant information made in the following is not admissible
1) offers to plead guilty
2) withdrawn guilty pleas
3) no contest pleas
4) statements of fact made in any of the above discussions
GUILTY PLEAS ARE ADMISSIBLE
Payments and Offers to Pay Medical Expenses
Inadmissible to prove liability for the injury but statements of fact are admissible
What type of character evidence is permissible to use when character is directly at issue?
All 3 types (specific acts, opinion, reputation)
Requirement for prior misconduct evidence to be admissible?
Non propensity and independent relevance (MIMIC)
Must meet the reasonable juror standard of enough evidence to support a jury finding
