Witnesses: Articles 4, 6 &7

Question 0

Character Evidence issue spotting

Answer 0

1. if the event in question is outside the box (timeline of the case) then it is likely CE
2. If the evidence is about someone IN the case (one of the characters in the play..the defendant, victim, or party in a civil suit), the it is likely CE
3. Determine what type of CE it is –> reputation, opinion, specific instances

Question 1

Character Evidence Generally

Answer 1

Evidence of a person’s (character in the play) character or trait of character is not admissible for purposes of proving action in conformity on a particular occasion (propensity)

Question 2

Distinguishing CE from witnesses

Answer 2

1. Who
   - Character in play ->CE
   - Witness -> Witness Impeachment
2. What trait?
   - Pertinent (honesty, law abiding…., one relating to crime) -> CE
   - Untruthfulness (credibility) -> WI
3. What form?
   - opinion, reputation, specific instances -> CE
   - Cross questions -> WI

Question 3

FRCP 404 (a) (1)

Answer 3

1. Proof of a party’s conduct by propensity is usually FORBIDDEN
2. Evidence of a person’s character or trait of character is not admissible to prove propensity (proving action in conformity on a particular ocasion)
3. Can’t introduce “bad” purpose of showing a person acts in conformity
   - showing propensity and acted in conformity is banned

Question 4

Four Uses of Character evidence

Answer 4

1. 404(a) and 405(a)- Mercy Rule
2. 405(b)- To prove an essential Element (character is an element)
3. 404(b) - To prove some other purpose (crimes, wrongs, other acts)
4. 406 - Not character (propensity) evidence, but “habit, routine, or practice”

Question 5

404(a) and 405(a) CE exceptions

Answer 5

-Though CE is usually forbidden, it is ONLY allowed for the character of the accused and the character of the alleged victim by the mercy Rule. Defendant controls.
1. CE is not allowed in civil cases
2. 405(a) says that in cases where CE is admissible, proof may be made by reputation and opinion. NOT specific instances
3. Asking about reputation/opinion::
-Do you know the D? his reputation in the community? How? Do you have an opinion/know X’s reputation for x? What is that opinion?
4. On Cross-examination, inquiry is allowable into relevant specific instances.
-this is used in order to rebut the opinion or reputation evidence
-leading questions are allowed.
==Stuck with witnesses’ answers. You are unable to ask anything about the answer, but you may use it in closing.

Question 6

Mercy Rule

Answer 6

1. Applies only to criminal cases (defendant must open the door_
2. Allows defendants to introduce pertinent evidence about::
   -a. A trait of their own character
   ==can’t take the stand to offer his own character, must call a witness
   -b. A trait of the victim’s charcter
3. Allows prosecutor to respond (but not initative) with::
   -a. evidence to rebut the trait introduced by the D (same trait)
   -b. evidence to rebut the trait introduced by the D against the V (same trait)
4. On cross, the prosecutor can ask specific instances of the D’s character
5. In a homicide case about self defesne
   -when evidence is that the V was the 1st aggressor, then to rebut, the prosecutor may offer evidence of the V’s trait of peacefulness

Can’t be used in the prosecutor’s case in chief

Question 7

Mercy Rule analysis

Answer 7

a. Is it character evidence?
b. Is it pertinent
==It must be relevant to the present case
==would you be able to argue that it is relevant? can you make this evidence about a character trait relevant?
c. what form is it?
==is it opinion, reputation, or specific instance?

Question 8

Mercy Rule CA Distinction

Answer 8

Creates an additional exception- in a criminal case, evidence of the D’s prior domestic violence cases can be admitted as long as its probative value is not outweighed by undue prejudice or undue consumption of time

Question 9

405(b) Proving character as essential element

Answer 9

Specific instances of conduct- in cases in which the character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.

1. Cases using CE as an essential element
   ==Child custody, defamation, negligent entrustment, entrapment, insanity
2. For all of these specific instances that may be offered, the parties are not limited to reputation or opinion

Question 10

405(b) Objection and REsponse Example

Answer 10

Objection, improper character
Your honor, while this may be character evidence, an exception applies. Specifically under 405(b) because it is needed to prove an essential element of this case.

Objection, irrelevant.
Your honor, this evidence goes to an essential element of this case and I am using it for a purpose besides propensity.

Question 11

404(b) - To prove some other purpose

Answer 11

Introducing another “crime, wrong, or act” not to prove propensity, but to prove some other purpose at trial such as intent, knowledge, motive, preparation, plan, ID, absence of mistake, absence of accident, if relevant to the current case. Specific instances are allowed

Question 12

404(b) Foundation

Answer 12

1. Determine if the “other” evidence is outside the box, i.e is CE
2. Provide pretrial notice of the evidence’s use (must in crim, recommended in civil cases)
   ==a. the prosecutor must provide the defense with written notice on the evidence to be used and its purpose
   ==b. Lack of notifying the defense before trial prohibits the evidence’s use at trial
3. Show that the “other” evidence is being offered for a purpose that is “AT ISSUE” (being contested) in the current case
   ==a. Intent, knowledge, motive, preparation, common plan, ID, absence of mistake, absence of accident.
4. Does the “other”, “at issue” evidence go to a matter in the current case (is it relevant to the contested issue_
   ==a. For ex: introducing past actions to show the motive or intent of the present case.
   ==b. The past act must be offered to prove something in the current case.
5. In determining whether the prior event took place, the judge will consider the additional evidence under 104(b). I.e could a reasonable jury determine that the prior event had taken place.
6. Perform a 403 Analysis (PB SO UP)

Question 13

404(b) Arguments Example

Answer 13

Objection (defense)..This is irrelevant, improper character evidence (propensity under 404(a)), violates 403 and we were provided with no notice.
Proponent (prosecution)
1. This is relevant, not offered for propensity (rather it is for a good purpose allowed under 404b), it is at issue in the case, and it doesn’t violate 403.
2. After an objection, the prosecutor gets to chose their own path, whether that be 404b or another

Question 14

404(b) Inextricably Intertwined

Answer 14

Prosecutor is saying it is not a crime, wrong, or other act because it is so intertwined that 404b doesn’t apply

Can argue that everything that happened within a given time period is connected, or intertwined in the case by meeting foundational elements:

• -a. Provided the context in which the charged crimes occured
• -b. in order to complete the story, provide a total picture of the charged crimes
• -c. It was admissible for the purpose of narrative integrity

Question 15

412- Rape Shield Laws

Answer 15

1. Prohibits the use (in a civil or criminal case involving alleged sexual misconduct) of evidence offered to prove that the victim engaged in other sexual behavior, and evidence offered to prove a victim’s sexual predisposition
2. Exceptions: specific instances of the victim’s sexual behavior with the accused, and if the the evidence would violate defendant’s constitutional rights, and why the source of semen/injury was not caused by him
3. The only way get this in is a reverse 403. (UP SO PB)

CA Distinction: D can only give evidence about prior existing sexual relationships. D may NOT admit evidence regarding specific instances for other purpose (i.e. forensic). In CA, D usually can bring up V’s pertinent character evidence by specific instances. Definitely not in rape cases. Rape cases are exceptions to prop 8.

Question 16

413-415 - Sexual assault and child molestation

Answer 16

1. IN a criminal case in which the defendant is accused of sexual assault or child molestation
2. Evidence of the defendant’s commission of another offense of sexual assault or child molestation is admissible.

Additionally, under 414, the prosecutor may introduce evidence of similar crimes of child molestation to be considered for any matter after providing notice. The same rule applies under 413 to crimes of sexual assault. This exception does not only cover convictions, but also any “bad acts” including when there was no conviction or charges were not even filed. These types of evidence are presumed to be relevant.

Question 17

FRCP 406: Not Character (propensity) evidence, “but habit, routine practice”

Answer 17

Evidence of habit of a person (or organization) of the routine practice, may be admitted to prove that the conduct or the person on a particular occasion was in conformity with the habit or routine practice

Question 18

406 Foundation

Answer 18

1. The court may admit this evidence regardless of whether it is corroborated or not or whether there was an eyewitness
2. The question to ask is, does it happen so regularly that we know it happened without seeing it?
3. Think::
   Regular;
   Response to a;
   Specific;
   Situation
4. Factors suggesting habit::
   a. specific conduct
   b. Distinctive situation
   c. regular basis
   d.lack of moral overtones
5. Examples of habits:: Porter brings coffee every day to class, eating at the same time, at the same restaurant all the time

Question 19

Examining Witness - Modes of Impeachment

Answer 19

Its all about credibility b/c of the focus on witnesses. If it is a party in the suit, go back to Character Evidence
A. Impaired Memory (today about the past events)
B. Impaired Perception (during the events)
C. Show Bias
—— (A-C is not in the federal rules)
D. Prior Inconsistent Statements
1. Anything R613
2. “Fancy” - R801(d)(1)
E. Prior Convictions R 609
F. Specific Acts of Untruthfulness R 608

Question 20

Examining Witnesses - Scope of Impeachment

Answer 20

A. Limited to what was discussed during the direct + credibility questions
B. On redirect you are limited to what was discussed on cross + credibility questions
C. Each round narrows the scope of what is being discussed

Question 21

Examining Witnesses - Procedural Rules of Evidence

Answer 21

A. 601 - Witness Comptency
1. General rule is everyone is competent, even young children and the mentally ill, opposing counsel should expose their weakness
2. Exam Tip - Competency is almost always the wrong answer b/c of general rule
B. 603 - Oath to tell the truth
1. No specific wording required
C. 604 - Interpreters, qualified + oath
D. 605 - No judges as witnesses
1. Testifying and presiding are incompatible
E. 606 - No jurors as witnesses, except
F. 611 - Mode & Order of Witness & Exhibits (Judge creates an orderly trial)
1. 611(b) Scope of Cross: Cross should not go beyond the subject matter of the direct and matters affecting the witness’s credibility; The court may allow inquiry into additional matters as if on direct
A. If on cross, opposing counsel objections to your question, argue that what you were asking WAS part of the direct and therefore w/n the scope
2. 611(c) Leading questions: Leading should not be used on direct except as necessary to develop the witness’s testimony. This means on: cross, and when a party calls a hostile witness identified with an adverse party.
G. 614 - court (judge) may call & question
H. 615 - Exclusion of witness

Question 22

FRCP 602- Need for Personal Knowledge

Answer 22

1. Witnesses can testify only about matters they have seen, heard, or otherwise sensed themselves. (firsthand knowledge)
2. Objections, lacks personal knowledge
3. The foundation requires the witness demonstrating they have personal knowledge through being at the scene or saw it

Question 23

FRCP 608 Wtinesses specific acts of untruthfulness

Answer 23

1. 608(a) (Porter’s Least favorite)
   a. Allowed to offer Character evidence (reputation and opinion) as it relates to the untruthfulness of a witness after they have already left the stand
   b. Only allowed to so if the witness’s credibility has been attacked
2. 608(b) (Porter’s Favorite)
   a. You are allowed to ask any question of specific acts of untruthful comitted by the witness
   b. Foundation:
   
   1. You can only ask intrinsic questions of the witness’s truthfulness + the evidence is brought out solely on cross-examination using only intrinsic (the witnesses own words) = can have been at any time, no 10 year limitation.
      c. Can only ask intrinsic questions and you are stuck with the witness’s answers; extrinsic evidence is always forbidden.
      d. Objection, improper impreachment. Response, your honor, R 808(b) allows me to discuss this matter …
      e. Under 608(b) the MAY, on cross-examination, allow specific acts probative of untruthfulness

CA Distinction: Under 608(b) a party can cross examine a witness based on “acts of untruthfulness”. Same in CA except in civil cases you may only ask questions to the witness about prior convictions, NOT mere acts of untruthfulness … In CA criminal cases, Prop 8 applies (that is, if the questions are not allowed under CEC, then the CA court must conduct a CEC 352 balancing test to weigh whether it should be admitted nonetheless.)

Question 24

FRCP 609 - Impeachment (of witness) by (Prior) Convictions

Answer 24

Used to attack a witness’s character for truthfulness by evidence of a criminal conviction
Foundation
A. Does the witness have a conviction?
B. Was it a crime of dishonesty or a felony
1. Felonies- punishable by death or imprisonment for more than one year conviction; not arrest or charges
a. Witness is the accused
==MUST BE ADMITTED in a criminal case in which the witness is the D if the probative value outweighs (not substantially) its prejudicial effect (reverse 403, presumed out)
b. Witness is not criminally accused
==MUST BE ADMITTED, subject to 403 in a civil or criminal case in which the witness is not the Defendant (presumed in)
2. Crimes of dishonesty
a. For any crime, regardless of punishment, the evidence must be admitted if it was a crime of dishonesty
b. No balancing test unless older than 10 years.
a.

Question 25

609 and Release Dates

Answer 25

1. The evience can only be used if the conviction/when the witness left jail (whichever is most recent) has been within the past ten years. Otherwise the evidence is considered stale
2. Prior convictions older than 10 years are allowed in if:
   a. Its probative value supported by specific facts and circumstances, substantially outweighs its unfair prejudicial effect (Super REverse 403)
   b. the proponent gives reasonable written notice.

Question 26

609 CA Distinction

Answer 26

Civil Cases- cannot impeach with a misdemeanor conviction. A felony may be admissible if it passes 352 balancing test.
Criminal Cases: Prop 8 applies. ANY prior convictions may be used to impeach if (1) it is a crime of moral turpitude and (2) passes the balancing test.

Question 27

609 c - e

Answer 27

609(c) - Pardons; only based on innocence
609(d) - Juvenile - only comes in if it is criminal
609(e) - Pending appeal

Question 28

FRCP 610

Answer 28

Religion has no bearing on credibility

Question 29

FRCP 612 - Refreshing recollection

Answer 29

Objection - Objection, improper impeachment

Question 30

FRCP 613 - Impeach by inconsistent statements (FOR ANY REASON)

Answer 30

Questioning as to prior inconsistent testimony given on the stand is admissible to impeach (613) and as substantive evidence only if the prior statement was under oath at preceeding (801)
For 613, the witness needs to be afforded an opportunity to explain or deny inconsistencies if it is extrinsic evicence. For 613 intrinsic evidence, no foundation is necessary.

Question 31

613 Foundation

Answer 31

1. Determine whether the evidence is intrinsic or extrinsic
   a. Intrinsic - asking the witness questions (allows allowed). Discredits the witness solely from the witness’s own statements
   b. Extrinsic - goes beyond the witness questions into other evidence, such as documents. Not asking what the person did, but what the outside did to them.
2. If the evidence is extrinsic, it can only be used if it is material to the case.(material means it involves a fact of consequence, not just impeachment)
3. If the evidence is not material, you are allowed to ask about it, but you are stuck with the answer.
4. Impeaching your prior statements
   a. Asking questions is quicker than introducing extrinsic evidence
   b. If the inconsistency involves a fact of consequence (material), the judge will take time for extrinsic evidence.
   c. In the inconsistency involves a collateral issue, then the judge probably will limit exploration into questions.
5. Procedure
   a. May ask witness about prior statement without showing it to the witness
   b. But must show statement to opposing counsel upon request
   c. If you use extrinsic evidence or PIS, the witness must have an opportunity to explain or deny
   d. And opponent must have an opportunity to examine witness