LA BAR EXAM NON-CODE TOPIC 3 EVIDENCE Flashcards
At the joint trial of Nathan and Kimberly, the following events or testimonies occurred. Address the following issues that arose either before or during the trial. Explain your answers fully.
(1) May the prosecutor introduce evidence of Kimberly’s prior conviction? Fully explain your answer.
If Kimberly testifies as a witness at trial, her prior guilty plea and conviction will be admissible under the
“any crime, any time” principle set forth in Louisiana Code of Evidence article 609.1: “Every witness by testifying subjects himself to examination relative to his criminal convictions.” [La. Code of Evid. art. 609.1] If Kimberly does not testify at trial, it is unlikely that the conviction will be admissible.
The neighbor that identified Kimberly died in a car accident a couple of months before the trial. Assume that the initial identification process used by the detective is valid and her statement was recorded (audio and video). Should the judge allow the admission of the statement and the prosecutor to play the DVD for the jury?
No, the recorded statement is inadmissible for two reasons. First, the statement is inadmissible hearsay. It does not fall under the “prior statements exclusion to the definition of “hearsay” because the declarant (the neighbor) will not “testifly] at the trial or hearing,” and will not be “subject to cross-examination concerning the statement.” [La.
Code of Evid. art. 801(D)(1)] Second, admission of the hearsay statement of the neighbor would deny Kimberly of her Sixth Amendment right to confront and cross-examine all witnesses against her.
As a part of Nathan’s defense strategy, his attorney seeks to call one of Nathan’s coworkers from their CPA firm to testify as a character witness. The colleague is prepared to testify that in the community of accountants, Nathan has a favorable reputation for truthfulness. Prosecutors object to the testimony. How should the judge rule?
The testimony of Nathan’s CPA co-worker as to his favorable reputation for truthfulness is not admissible.
Character evidence generally is “not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” [La. Code of Evid. art. 404(A)] The accused, however, is permitted to offer evidence of a
“pertinent trait of his character. Nathan’s character for “truthfulness” does not appear pertinent to any of the charged crimes. Therefore, this testimony is not “pertinent” to the prosecution and is inadmissible.
Nathan’s lawyer plans to introduce evidence that Heather had a violent history and a dangerous character.
Should the court permit such evidence?
Nathan may not offer testimony as to Heather’s dangerous character. Character evidence generally is “not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” [La. Code of Evid. art. 404(A)] Moreover, Nathan may not offer testimony as to Heather’s past violent acts. Evidence of “other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” [La. Code of Evid. art. 404(B)] While it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, Nathan seems to offer it for purposes of showing conformity. All of this testimony is inadmissible.
Kimberly’s attorney wants to ensure the integrity of the prosecution’s witnesses testimony. What should she do prior to the commencement of the trial?
Kimberly’s lawyer should move for sequestration of the prosecution’s witnesses pursuant to Louisiana Rule of Evidence article 615. Under that article, “on request of a party the court shall order that the witnesses be excluded from the courtroom … and refrain from discussing the facts of the case with anyone other than counsel in the case.”
Tiffany, a member of Kimberly’s church, is called by her lawyer to testify as a character witness.
Prosecutors are aware, however, that Tiffany was arrested 15 years ago on a charge of misdemeanor simple battery. May prosecutors reveal her prior arrest during their cross-examination in an effort to impeach Tiffany?
- No. While evidence of prior criminal convictions is generally admissible for purposes of impeachment, evidence of unconvicted “crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” [La. Code of Evid. arts. 609.1 and 404(B)]
During its case-in-chief, prosecutors call the ER nurse that attended to Heather. The nurse gave detectives a statement that while barely still conscious Heather stated, “I can’t believe that Kimberly would do this to me.” About five minutes later Heather lost consciousness and eventually passed away. Should the judge allow the nurse to testify regarding Heather’s statement?
The statement is hearsay, and does not fall under any hearsay exception, including the exception for “statements for purposes of medical treatment and medical diagnosis in connection with treatment.” [La. Code of Evid. art. 803(4)]
That exception allows the introduction of statements relating to “the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.” See
id. However, the precise identity of the individual who inflicted an injury is not “general” information that is
“reasonably pertinent to treatment or diagnosis.
During the trial, prosecutors call an officer to testify about the bracelet that was later found in Kimberly’s possession. The officer will testify that she actually retrieved the bracelet from Nathan’s SUV. What questions should the prosecutor ask the officer?
To “authenticate” the bracelet for admission, the prosecutor must offer evidence sufficient to support a finding that the bracelet is what the prosecutor claims it is - namely, a bracelet found in Nathan’s SUV. [La. Code of Evid. art.
901(A)] The prosecutor can lay the proper foundation for admission by calling a police officer to the stand and asking her whether she retrieved the bracelet from Nathan’s SUV. If she testifies in the affirmative, a proper foundation for admission will have been laid.
Address the following issues that arose either before or during Kyle’s trial. Explain your answers fully.
(3) Following the seizure of the marijuana plant from Kyle’s home, prosecutors arranged for the plant to be photographed, and then destroyed. When prosecutors introduced the photograph for admission at trial, Kyle’s lawyer objected, claiming that the state must present the original evidence. How should the judge rule?
The judge should overrule the objection and admit the photographs of the seized marijuana plants if the state lays a proper foundation for their admission. The requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims it is. Photographs are generally admissible if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. Thus, the state should have a police officer with knowledge testify that the photographs are fair and accurate depictions of the marijuana seized from Kyle’s home. The original plants are not required.
(4) During its case-in-chief, in an effort to establish that Jenny owned the car taken by Kyle, the state introduced a Louisiana automobile registration certificate reflecting Jenny’s name and address. Kyle’s lawyer objected to the evidence. How should the judge rule?
The court should admit the Louisiana automobile registration certificate. Despite being hearsay (i.e., a “statement” made out of court and offered for its truth that Jenny owned the car taken by Kyle), the registration certificate is admissible under the public records exception. It is a record of a public office or agency (the DMV) setting forth its regularly recorded activities.
The certificate is probably also admissible under the business records exception. Furthermore, certified Louisiana public documents are self-authenticating.
(6) Kyle’s attorney intends to introduce character evidence through the testimony of Kyle’s supervisor at Honest Abe’s Auto Repair Shop, who will testify that, among his co-workers, Kyle enjoys a favorable reputation for peacefulness and non-violence. Should the judge admit the testimony?
The testimony of Kyle’s supervisor as to his favorable reputation for peacefulness and nonviolence is admissible. Although character evidence generally is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, the accused is permitted to offer reputation evidence of a pertinent trait of his own character. Here, Kyle’s character for “peacefulness and nonviolence” is pertinent to his prosecution for various violent crimes (including murder, battery, and aggravated arson). Thus, the testimony is admissible.
(7) Michael is called to testify in the state’s case-in-chief. Kyle’s lawyer is aware that Michael was convicted of Aggravated Battery 15 years ago. Can the conviction be raised by the defense lawyer during Michael’s cross-examination testimony?
Michael’s prior conviction may be raised on cross-examination. Under the “any crime, any time” principle, any witness who testifies in a criminal case may be cross-examined as to any prior conviction, regardless of when it occurred. Thus, Michael is subject to cross-examination as to his 15-year-old aggravated battery conviction.
(8) The arresting officer is called to testify against Kyle. During the course of his testimony, he asserts that he witnessed Kyle order Jenny out of her car at gunpoint. He further testifies that Jenny immediately responded by shouting, “Please don’t shoot me!” Kyle’s lawyer objects to the introduction of the statement. How should the judge rule?
The judge should overrule the objection and admit Jenny’s statement. Jenny’s statement, although made out of court, is not hearsay because the state is not introducing it to prove the truth of the matter asserted (i.e., that Jenny did not want to be killed or believed she was about to be killed). Rather, it is being offered for the relevant purpose of showing that Kyle used intimidation while taking Jenny’s car (an element of the carjacking charge). Moreover, even if the state were seeking to admit the statement to prove the truth of the matter asserted, the statement would be excluded from the hearsay rule as a res gestae statement made under the immediate pressure of the occurrence. It would also be excepted from the hearsay rule as an
“excited utterance.”
(9) Jenny is called to the witness stand to testify against Kyle. Under what circumstances may the prosecutor be permitted to ask her leading questions?
The prosecutor may ask leading questions of its own witness, Jenny, only if she becomes an adverse or hostile witness, fails to respond to proper questioning, or if the questions are necessary to develop her testimony (e.g., routine background or uncontroverted issues).
(10) Kyle’s prior felony conviction, for which he was previously incarcerated for three years, was for the offense of forcible rape. May prosecutors present evidence of this conviction at Kyle’s current trial?
The prosecution may introduce evidence of Kyle’s prior conviction if he is charged with the crime of “possession of firearm by convicted felon, because his prior conviction was for forcible rape a violent crime and therefore is a material element of that offense. Note that Kyle can avoid introduction of the conviction by stipulating to the prior conviction element.)
Even if Kyle is not charged with that offense, the prosecutor may introduce the conviction to impeach his credibility if he testifies, because any witness who testifies in a criminal case may be impeached with any prior conviction. However, the conviction will not be admissible as substantive character evidence because the prosecution generally may not introduce evidence of a defendant’s bad character to prove that he acted in conformity therewith. A defendant’s prior acts or crimes may be admissible if independently relevant (e.g., to prove motive, intent, etc.), but that does not appear to be the case here.
