Impeachment/Character/Hearsay Rules

Question 1

Who can first use character evidence in a criminal case?

Answer 1

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.

Question 2

Can the prosecution introduce character evidence of the defendant’s bad character if the purpose is to show D acted in conformity?

Answer 2

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

Question 3

What is the effect of the defendant introducing evidence of good character for a relevant trait?

Answer 3

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)

Question 4

When can evidence of prior bad acts be admissible to show D probably acted unlawfully again and committed the crime?

Answer 4

Evidence of prior crimes or bad acts is never admissible to show D probably acted unlawfully again and committed the crime.

Question 5

What is the effect of a Defendant testifying on their own behalf in a criminal and civil trial?

Answer 5

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

Question 6

Is character evidence generally admissible in a civil case?

Answer 6

No, generally character evidence is inadmissible in a civil case.

Question 7

For what purpose can prior bad acts and prior crimes be used against a defendant?

Answer 7

For independent purposes such as motive, intent, mistake (absence of), identity, and common plan or scheme (MIMIC)

Question 8

What are the exceptions to the general rule against character evidence in a civil case?

Answer 8

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

Question 9

When is character evidence essential or directly at issue?

Answer 9

Claims like

1) defamation (plaintiff’s character)

2) child custody (parent’s character)

3) negligent entrustment (trustee’s
character)

4) fraud (defendant’s character)

Question 10

5 Major Methods for Impeachment of a Witness’s Credibility

Answer 10

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

Question 11

Impeachment via Prior Inconsistent Statements

Answer 11

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

Question 12

Impeachment by Showing Bias or Motive to Misrepresent

Answer 12

Showing bias or motive is always admissible and courts will allow extrinsic evidence if the witness denies the motive or bias

Question 13

Prior Convictions Impeachment

Answer 13

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

Question 14

Impeachment via specific bad acts that bear on truthfulness or untruthfulness

Answer 14

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

Question 15

Impeachment via reputation or opinion evidence

Answer 15

A testifying witness can be impeached via reputation or opinion evidence and proved by extrinsic evidence

Question 16

Who may impeach a testifying witness?

Answer 16

Either party may. The common law rule that did not permit it except in certain circumstances is not valid anymore.

Question 17

Other 2 methods of impeachment

Answer 17

Sensory deficiency
contradiction

Question 18

What foundation is required for extrinsic evidence for prior inconsistent statement?

Answer 18

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

Question 19

Contradiction Impeachment

Answer 19

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

Question 20

Can you impeach a hearsay declarant?

Answer 20

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

Question 21

How do you rehabilitate a witness?

Answer 21

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

Question 22

Definition of Hearsay

Answer 22

An out of cour statement offered for the truth of the matter asserted

Question 23

Hearsay Analysis Steps

Answer 23

1) isolate the statement
2) identify the speaker
3) Identify the purpose

Question 24

What are the classic nonhearsay categories

Answer 24

1) prior statements of a testifying witness subject to cross-examination

2) opposing party statements

Question 25

What are the three types of prior statements subject to cross?

Answer 25

1) Prior inconsistent statements
2) Prior consistent statements
3) Prior Identifications

Question 26

Prior Inconsistent Statements NonHearsay

Answer 26

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

Question 27

Prior Consistent Statement NonhwEAY

Answer 27

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

Question 28

Prior identification nonhearsay

Answer 28

A declarant subject to cross can bring in a statement of a declarant that they identified someone after seeing them

Question 29

Opposing Party Admission Generally

Answer 29

A nonhearsay category where the opposing party’s statements can be brought in for their truth or to impeach

Question 30

Opposing Party Statements Attributable to the Party

Answer 30

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

Question 31

9 Most Common Tested Exceptions

Answer 31

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

Question 32

Excited Utterance Exception

Answer 32

A statement that was made immediately following a startling event while the person is still startled is admissible

Question 33

Present Mind Exception

Answer 33

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

Question 34

Statement made for purposes of medical diagnosis or treatment

Answer 34

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

Question 35

Business Record Exception

Answer 35

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

Question 36

Recorded Recollection Hearsay Exception

Answer 36

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.

Question 37

Learned Treatise Hearsay Exception

Answer 37

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

Question 38

Family Records Exception

Answer 38

Satements of fact found in family bible, jewelry engravings or tombstones is admissible

Question 39

What are three most commonly tested hearsay exceptions that rely on witness unavailability?

Answer 39

1) former testimony
2) dying declaration
3) statements against interest

Question 40

Constitutional Limits on Hearsay

Answer 40

• 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

Question 41

Two types of marriage privileges

Answer 41

Spousal immunity

privilege for confidential marital communications

Question 42

Spousal Immunity

Answer 42

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

Question 43

Privilege for Confidential Marital Communications

Answer 43

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

Question 44

When does neither marital privilege apply

Answer 44

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

Question 45

Non-Truth Purposes

Answer 45

Warning or notice

Show effect on listener or reader

Circumstantial evidence of State of Mind

Legally operative

Question 46

Uses of Prior Inconsistent Statements

Answer 46

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

Question 47

Limitation on Liability Insurance

Answer 47

Admissible to show

1) ownership/control over the thing

2) impeach

3) show liability

NOT ADMISSIBLE TO SHOW FAULT

Question 48

Remedial Measures Limitation

Answer 48

Admissible to show

1) ownership/control

2) feasibility of repairs

3) destruction of evidence

INADMISSIBLE TO SHOW FAULT

Question 49

Settlement Negotiations Limitation

Answer 49

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.

Question 50

Govt Civil Dispute Exception to the Settlement Negotiations Limit

Answer 50

Statements made in a settlement negotiation with a government authority are not excluded when offered in criminal cases

Question 51

Plea Discussion Limitaiton

Answer 51

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

Question 52

Payments and Offers to Pay Medical Expenses

Answer 52

Inadmissible to prove liability for the injury but statements of fact are admissible

Question 53

What type of character evidence is permissible to use when character is directly at issue?

Answer 53

All 3 types (specific acts, opinion, reputation)

Question 54

Requirement for prior misconduct evidence to be admissible?

Answer 54

Non propensity and independent relevance (MIMIC)

Must meet the reasonable juror standard of enough evidence to support a jury finding