Old Chief, Conditional Relevance, trial mechanics, impeachment Flashcards
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Old Chief
defendant can ask the government from refraining to mention his prior crime bc it would resutl in a propensit inference; court said it would be too prejudicial otherwise.
balancing the ability of the prosecutor to try his case and prejudicing the defendant, but important to note that the jury should probably know what they are sentencing for bc it is an important issue, too sanitized
conditional relevance
In a reckless driving prosecution, the speed of a certain car is relevant only if the preliminary fact that he defendant was driving the car is true. The speed of the car is allowed to be proved if a reasonable jury could conclude that he defendant was driving the car. The judge has to determine if there is sufficient evidence to allow the jury to find the defendant was the driver.
Trial Mechanics
court exercises control over the mode and order of the exmining witnesses and presenting evidence so as to make the procedures effective for determining truth, avoiding wasting time, and proteciting witnesses from harrassment
court can force a certain witness to testify first
court can restrict questioning
court can say no surrebuttal
caourt can allow cross ex into new matters, though cross ex should not typically go beyond the subject matter of direct
court can dtermine the number of layers of redirect and recross
leading questions should not be sued on direct except as necessary to develop the witness’ testimony (think kids, mental impariment, refreshing). The court should allow leading questions on cross and when a aprty calls a hostile witness, an adverse party, or a witness identified with an adverse party even on direct.
Impeachment
only to discredit not to prove any substantive part of the case, note that under 404 evidence of a witness’ character may be admitted under Rules 607-609, rules regarding propensity inferences is lessened here
Impeachment: 607-609 Dishonesty
607: Any party may attack the witness’ credibility
608: PAST BAD ACTS THAT DID NOT LEAD TO CRIMINAL CONVICTIONS
A witness’s credibility may be attacked or supported by testimony about the witness’ reputation for having a character for truthfulness or untruthfulness or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’ character for truthfulness has been attacked [allowing the propensity inference]
Except in a criminal conviction under rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’ conduct in order to attack or support the witness’ character for truthfulness,
NO EXTRINSIC but the court may allow the specific instances to be inquired into on cross ex if they are probative of the character for truthfulness or untruthfulness of 1.) the witness or 2.) another witness whose character the witness being cross examined has testified about. By testifying on another matter a witness does not waive privilege against self incrimination for testimony that relates only to the witness’ character for truthfulness.
asking about fraud not bribery during cross bc bribery is not probative of the character of truthfullness
extrinsic evidence is any evidence not gathered directly from the witness, so if the witness denies the act, the questioner cannot use any other evidence to prove otherwise
609: PRIOR CRIMINAL CONVICTIONS
i. Can bring in extrinsic evidence
ii. For a crime that was punishable by death or by imprisonment for more than one year, the evidence
A.) must be admitted subject to rule 403 in a civil case or in a criminal case in which the witness is not a defendant and B.) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect
- Sanders: evidence of prior act that is the same is not likely to be admitted against witness defendant bc it is too prejudicial
a. In the alterantive, even under 404b to prove another purpose not related to character, still too prejudicial
b. But see Oaxaca/hernandez for different ruling with same facts - Luce: to raise a claim of improper impeachment with a prior crime, the defendant must testify bc the government has no way of knowing whether it would need to use the impeachment evidence. Court will not then review the in limine ruling
- Ohler: a defendant who preemptively introduces evidence of a prior conviction on direct may not on appeal claim that the admission of such evidence was in error. Only when the government exercises its option to impeach can the defendant claim the denial of a substantial right if in fact the district court’s in limine ruling proved to be erroneous.
iii. For any crime regardless of the punishment, the evidence must be admitted if crime required as an element a dishonest act or false statement (Crimen falsi); no 403 test
1. Amaechi: shoplifting not a crimen falsi, need a crime that indicates whether a person is more likely to commit perjury
Impeachment Bias
no FRE, extrinsic evidence allowed
Can impeach if show that witness or hearsay declarant has a reason to lie or slant testimony
exapmples: expert from defense is being paid, romantic invovlemnt with the witness, same prison gang
impeachment incapacity
no FRE, extrinsic evidence allowed
show that the witness’s memory or perception is unreliable
Examples: witness has bad eyesight, mental delusions, drug use
impeachment inconsistency
note that impeachment evidence is not substantive evidence
i. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness, but the party must on request, show it or disclose its contents to the adverse party’s attorney
ii. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given the opportunity to explain or deny the statement and an adverse party is given the opportunity to examine the witness about it, or if justice so requires.
1. Lebel: failure to identify defendant in trial 1 but correctly identify in trial 2 is an inconsistent statement
2. Dennis: evasive answers and failure to recall statements made during grand jury testimony but now in court are inconsistent statements
3. Truman: refusal to answer is an inconsistent statement
4. Ince: when a witness denies prior out of court testimony while on the witness stand and then is attacked for inconsistency, if the only purpose of the attack is to “introduce” evidence to circumvent the hearsay rule, it will not be allowed bc it is hard for the jurors to distinguish between impeachment and substantive evidence.
Impeachment specific contradiction
no FRE
i. Bars extrinsic impeachment evidence by specific contradiction on a collateral manner
1. Collateral if cannot prove for a different purpose/ introduced for a substantive purpose
ii. See 608b, cannot use extrinsic evidence for showing specific acts of dishonesty but can use cross ex to discuss specific acts
iii. Rationale: too many mini trials on the matter of witness accuracy with little relation to the merits
1. I was on the corner of main and broadway and saw the defendant run out of the national bank carring a bag of money and a gun.
a. If the bank was really called continental bank, the issue is collateral and should not be contradicted.
2. If the witness says the defendant had a beard but eyewitness testimony says no beard, then the issue is not collateral bc it has substantive importantce and relevance at trial.
iv. Can still cross examine about the collateral matters
Rehabilitation Honesty
i. All rehabilitation must follow impeachment, cannot bolster [enhance credibility] your witness by providing rehabilitative information before.
ii. Honesty
1. A witness’s credibility may be attacked or supported by testimony about the witness’ reputation for having a character for truthfulness or untruthfulness or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’ character for truthfulness has been attacked
a. The use of prior inconsistent statements may constitute an attack on truthfulness (Beard)
i. But vigorous cross examination and pointing out of inconsistincies does not present an attack on the character for trutfullness of the witness (Danehy)
b. When rehabilitating, Giving specific information like the number of times X happened is extrinsic evidence (Murray)
Cant introduce extrinsic evidence, but can cross about specific instances if they are probabtive of the character of truthfullness or untruthfullness
Rehabilitation consistency
- A witness’s credibility may be attacked or supported by testimony about the witness’ reputation for having a character for truthfulness or untruthfulness or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’ character for truthfulness has been attacked [remember bolstering]
a. A prior consistent statement introduced to rebut a charge of recent gabrication or mporper influence or motive is admissible if the statement had been made BEFORE the alleged fabrication, influene, or motive came into being only (Tome)
See how extrinsic statements are allowed for inconsistency
Rehabilitation disinterest, capacity, specific corroboration
no FRE
Competence
a. Every person is competent unless rules provide otherwise
i. If witness does not have personal knowledge or he does not understand the duty to testify truthfully, he is excused.
ii. A low bar. All you really need is a sufficient memory, ability to understand the oath, and can communicate what you saw.
1. Standard is whether the evidenced is sufficient to support a finding that the witness has personal knowledge of the matter (Hickey)
iii. Party can take its own custom oath if substantially similar to the court’s oath or in a form designed to imporess the duty to testify trutfylly (Ward)
iv. Even if you are insane or retarded, you can still be competent to testify if you can understand and answer simple questions (Allen J)
b. People who lack personal knowledge, people who wont promise to tell the truth, people who cant promise to tell the truth, witnesses barred by dead man statutes, and judges jurors and attorneys in cases in which they serve are not competent
c. A juror cannot testify about any statement made during deliberations when there is an inquiry into the validity of a verdict or indicmtment
i. If there is some improper influence or mistake, the juror can testify
d. Hypnosis
i. Cannot have a per se rule against hypnotically refreshed testimony or other per se exclusions.
1. Inaccuracies can be reduced by procedural safeguards, cross examination, other corroborating evidence, so need rules that can consider the testimony on a case by case basis
Attorney client privilege
A. Attorney client privilege requires a communication in confidence between a lawyer and client in the course of provision of professional legal services; privilege survives after death
a. Communication
i. Physical characteristivs and demeanor are not privileged (Kenrdick)
ii. Information concerning fees are not privileged, including amount, date, form, etc. (tornay)
b. In confidence
i. When you know or should have known that third parties are present, you waive privilege
ii. Talking on the phone to attorney in the presence of law enforcement is a waiver of confidence (Gann)
iii. If you discuss confiddental materials with your friend who is nto acting as an attorney, you waive privilege.
iv. When information is transmitted to an attorney with the intent that the information will be transmitted to a third party (a tax return), the information is not confidential.
c. Between lawyer and client
i. Privilege attaches when client, tax expert, and attorney are all present talking to tax expert
ii. Must facilitate legal services, not tax services from accountant
iii. When communicate among joint parties and their counsel about matters of common concern, all communications are privileged.
iv. Statement of a client to an insurance company is not protected bc the employee for the insurance company is not a lawyer
v. Factfinding that pertains to legal advice is protected. The underlying facts are not protected, but the communications are protected. Extends beyond the control group to relevant employees.
vi. Work product is discoverable if substantial need
d. In the course of professional legal services
i. Returning a stolen typewriter is not performing legal services
ii. An attorney preparing tax documents is not privileged because he is mainly providing an accounting service
Crime fraud exception
a. Privilege does not apply if client used attorney’s services to perpetuate a future crime, regardless of whether attorney is aware
b. In camera review allowed to see if there is a fire/ crime
i. Test: judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the crime fraud exception
ii. Once this showing is made, the judge has discretion to determine whether in camera review is proper
