Evidence Outline

Evidence concerns the limits we place on the information juries hear. Rules of Relevance Attempts to focus the parties and the jury on the issues at hand. [Guards against digression and diversion] Rules of Reliability Attempts to ensure that the evidence the jury hears is as good as it purports to be; or at least that its defects are apparent to the jury. Privileges Exclude evidence that is both relevant and reliable to serve other societal interests. Tanner v. U.S Issue: The issue is whether the District Court was required to hold an evidentiary hearing, including juror testimony on juror alcohol and drug use during the trial. Holding: Legislative history demonstrates with uncommon clarity that Congress specifically understood, considered, and rejected a version of Rule 60(b) that would have allowed jurors to testify on juror conduct during deliberations. Juror intoxication is not an outside influence. [The jurys hidden decision making process and its one or two word verdicts leave all mistakes and causes for criticism locked in the black box of the jury room.] Rule 401 Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. y Evidence must be material. [Evidence is material if it bears on a fact that is of consequence to the determination of the action] y Evidence must be probative of a material fact [The evidence must have a tendency to make the existence of that factmore or less probable than it would have been without the evidence] -Relevance is the cornerstone of all Evidence Law. -Evidence is either relevant or irrelevant. -Relevant does not equal admissible. -Relevance is the first low hurdle

-Admissibility does not equal sufficiency

United States v. James Issue: Was the evidence denied to the defense of such a nature that it was necessary to the defense? Holding: James defense rested on her credibility and because her credibility could be directly corroborated through the excluded documents; the exclusion was prejudicial and probably more than not affected the verdict. [The fact that Ogden had committed such crimes therefore made it more likely that James was telling the truth when she said Ogden had told her about the crime]

Cox v. State (Relevancy Conditioned on the Fact) Issue: The issue is whether or not there was evidence sufficient enough to support the inference that defendant learned what transpired at the hearing. Holding: Yes, the Court may admit the evidence after it makes a preliminary determination that there is sufficient evidence to support a finding that the conditional fact exists. The trial court did not abuse its discretion by admitting the evidence. [104 (b)Relevancy Conditioned on Fact When relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition] -The 104 (b) standard presents a higher hurdle than the 401 standard. Shrewd lawyers will find the missing link with a conditional relevancy standard. y Jury could reasonably find the conditional fact by a preponderance of the evidence.

Rule 403 (Probativeness v. Risk of Unfair Prejudice) y Permits the exclusion of otherwise relevant evidence. y Committed to the trial judges discretion and are reviewable on appeal only for abuse of discretion y Liberal evidence is inherently prejudicial; but it is only unfair prejudice, if it substantially outweighs the probative value, which permits exclusion of relevant matter under Rule 403.

y Distracting the jury from the task at hand may also be grounds for excluding evidence. y Sheer time waste may justify exclusion. State v. Bocharski Issue: Did the photos (of an 84 yr old woman stabbed to death) provide probative value? Holding: Exhibits 46 and 47 were unnecessary and quite risky although they met the bare minimum standard of relevancy they had little tendency to establish any disputed issue in the case. - Jury determines truth as well as credibility - Evidence can be admissible or relevant for one purpose but improper for other purposes Commonwealth v. Serge Issue: The issue is whether the admission of the CGA depicting the Commonwealths theory of the case was proper. Rule: CGA should be deemed admissible as demonstrative evidence if it: (1) is a fair and accurate representation of the evidence it purports to portray: (2) is relevant pursuant to PA. R. Evidence 401 and 402: (3) has a probative value that is not outweighed by the danger of unfair prejudice pursuant to PA. R. Evidence 403. Holding: The admission of a CGA was proper. The trial court safeguarded against potential prejudice by supplying a thorough and extensive cautionary instruction before playing the CGA. United States v. Myers Issue: The central issue in this case is who committed the robbery. Holding: It was error to instruct the jury that they could infer consciousness of guilt from an alleged flight which was without support in the record. y A flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences. y The more remote in time the alleged flight is fro the commission or accusation of an offense the greater the likelihood that it resulted from something other than feelings of guilt concerning the offense. - In determining credibility issues the jury is the decider and the judge must accept/ assume the evidence as true.

People v. Collins Holding: The Mathematicians testimony suffered from two basic and pervasive defects; inadequate evidentiary foundation and inadequate proof of statistical independence. y The prosecution produced no evidence that any of the individual probability factors listed were even roughly accurate. United States v. Jackson Holding: Trials are not designed to get at the total truth in all its mystery; they only allow decisions of narrow issues of fact and law within, the limitations of a moderately effective litigation system.

Old Chief v. United States Issue: The issue is whether a district courts abuses its discretion if it spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations and when the purpose of the evidence is solely to prove the element of prior conviction. Holding: If relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must rest not on the ground that the other evidence has rendered it irrelevant, but on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding. [Unfair Prejudice speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged] -Specialized Relevance Rules y When evidence is offered for the prohibited purpose it never comes in Compromise Offers and Payment of Medical Expenses

Bankcard v. Bancard Holding: It would be an abuse of Rule 408 to allow one party during compromise negotiations to lead his opponent to believe that he will not enforce applicable time limitations and then object when the opponent attempts to prove the waiver of the limitations.

- Rule 408 does not protect offers to compromise made before a claim of some sort has been made. - Not all offers aid or compensation are necessarily covered by FRE 408. -Rule 408 forbids impeachment by prior inconsistent statement or contradiction. - Rule 408 permits evidence of compromise negotiations when offered to prove a witness bias or prejudice. y Evidence of a witnesss interest in the outcome of a case tends to show a motive to lie and hence that the witness is lying. - used only in narrow contexts Rule 409 -Rule 409 extends no protections to statements surrounding offers to pay medical expenses; rule excludes only the offer. - 409s Relevance Based Rationale: Some statements may be the result of humane impulses and therefore not probative of negligence. -Other statements sound like a genuine admission of fault that may be highly probative of negligence. -Rule 409s Public Policy Rationale: 409 aims to encourage offers to assist (which may avoid a later lawsuit). - A lay person is probably unaware of rule 409 and the scope of its protection. So a more protective rule would have little impact on whether she utters that apology. The excess protection would deprive the justice system of evidence of her admission without serving any public goal. - Lawyers are involved in respect to 408s broad protection. Such protection is necessary to foster negotiation. - These rules also bar evidence that one of the parties in the suit settled with a third party if that evidence is offered to prove liability for or invalidity of the claim (But it can still be offered to show a witness bias).

Techniques juror decision making y Blindfolding withholding certain information from the jury. o Failures  The topic may be introduced at trial because an attorney is able to argue persuasively that it is being offered for a legally acceptable purpose  Witness mentions subject in front of the jury even though the rules of evidence prohibits it.  Jurors pretrial experiences, attitudes, or beliefs provide them with a foundation of potentially relevant information that makes the forbidden topic likely to come to mind. [Researchers have examined thatsimple admonitions to the jury often fail to unring the bell 87 Va. L. Rev 1857 (2001)] [Rules of evidence generally preclude parties from introducing evidence that a person carried liability insurance it is predicated on assumptions about what jurors will do with the information once it is revealed (using it inappropriately in reaching their verdict)] Pleas in Criminal Cases Rule 410 Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plead discussions: 1. A plea of guilty which was later withdrawn; 2. A plea of nolo contendere; 3. Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or 4. Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a guilty later withdrawn However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

United States v. Biaggi Rule: When a defendant rejects an offer of immunity on the ground that he is unaware of any wrongdoing about which he could testify, his action is probative of a state of mind devoid of guilty knowledge. y The probative force of a rejected immunity offer is clearly strong enough to render it relevant. Issue: Did the district judge exceed her discretion under Fed. R. Evid. 403 to bar relevant evidence whose probative value is outweighed by the danger of unfair prejudice, confusion, or delay. Holding: Though we recognize the latitude of a district judge in making Rule 403 determinations, we conclude that in this case, the exclusion of Mariottas state of mind evidence denied him a fair trial. y With the credibility of the accusations about Maritottas knowledge of wrongdoing seriously challenged, evidence of his denial of such knowledge in response to an opportunity to obtain immunity by admitting it and implicating others became highly significant to a fair presentation of his defense. - The exclusion of Rule 410 is fundamentally different from that of each of the other specialized relevance rules. - The evidence it addresses is always barred except where specifically permitted. - Statements the defendant makes during plea negotiations with the prosecutor may not be used to impeach her should she later testify differently at trial. - If defendants worried that any statements they make during plea negotiations might be used to impeach them at trial, they might not enter plea negotiations. - However Rule 410 does permit certain statements by defendants to be used against them at later perjury prosecutions (an exception that may discourage defendants from being completely candid and open during plea negotiations.

- SC has held that prosecutors may, as a precondition to any negotiations, demand that defendants agree that any statements they make during negotiations may be used to impeach any contradictory testimony they give at trial. [A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution] [Effective criminal law administration in many localities would hardly be possible if a large proportion of the charges were not disposed of by such compromisesalso helps win an accused cooperation in prosecuting his cohortscriminal defendants might simply refuse to engage in plea negotiations were it not for the broad protection of rule 410] - The protection offered by the fourth paragraph of Rule 410 reaches only statements made in the course of plea discussions. If the defendant unilaterally offers information without first establishing that he is seeking a concession, a court may determine that no plea discussions had begun and that the defendants statements are therefore admissible against him. y Also defendants speak at their peril to police officers who merely appear to have authority to negotiate pleas. y Rule 410 bars evidence of pleas and plea discussions only when offered against the defendant. By its term, the rule does not prevent the defendant from presenting evidence that the prosecutor offered to drop a charge during plea discussions. o But since admitting such evidence would discourage prosecutors from negotiating pleas and would thereby frustrate the purpose of the rule, some courts have ignored the strict language of the rule and have barred the evidence. Rule 404 People v. Zackowitz y Almost at the opening of the trial the People began the endeavor to load the defendant down with the burden of an evil character. y The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners.

Rule: Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one.

Holding: If his own testimony be true, he gathered these weapons as curios, a collection that interested and amused himwhether the explanation be false or true, he should not have been driven by the People to the necessity of offering it.

* Cardozo apparently felt that even in denouncing the dangers of character evidence, he had to rehabilitate Zackowitzs character. He knew that character evidence, a dangerous thing in a jurys hands, could be very useful to a judge aiming to persuade readers that the courts ruling was just.

The Propensity Box -Evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time. -In Zackowitz the prosecutors aim was exactly the one the rule forbids: The state was trying to show that the defendant had a propensity to act in a particular way on the night of the shooting. -The problem with such evidence is not that it is not relevant . . . rather, the problem is that such evidence can cause unfair prejudice. -Unfair prejudice has two forms: 1. The risk that the jury will give excessive weight to the vicious record of crime thus exhibited and allow it to bear to strongly on the present charge 2. The jury may take proof of character as justifying a condemnation irrespective of guilt of the present charge. [Preventative Conviction] -Other risks include: (403 concerns) y Evidence of defendants character may confuse and distract the jury y Once one side offers evidence the other side may want to rebut that evidence with their own, which could become time consuming. -Evidence is not admissible to show a persons character to prove action in conformity therewith on a specific occasion. In general, a litigant may not lead the jury on a chain of inferences that goes through the propensity box.

Routes Around the Propensity Box Rule 404 (b) Evidence of other crimes may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

-The other acts neednt have been a crime, and it could have taken place either before or after the crime charged. -Judges are not required to admit such acts, even though the acts do not violate the propensity evidence ban. Judges will typically evaluate the evidence under Rule 403 and exclude it if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, or undue delay. -Evidence of other acts, even when offered to prove identity, is not admissible in the chain of inferences if the chain of inferences leads through the propensity box. -Rule is applicable to both criminal and civil cases. United States v. Trenkler The govt offered evidence that Trenkler had previously constructed a remote-control device, the Quincy bomb. The govt contended that the unique similarities in design, choice of components and overall modus operandi between the two bombs compelled the conclusion the Trenkler had designed and built both devices. Trenkler assigns error to the admission of the Quincy bomb evidence, contending primarily that the incident was not sufficiently similar to the Roslindale bomb to be relevant to the issue of identity. Holding: In this case, we think the balance of the evidence tilts sufficiently towards admission to satisfy the first step of the Rule 404(b) analysis. Accordingly we believe that the district court did not abuse its discretion in determining that the numerous similarities in components, design, and technique of assembly, combined with the similar modus operandi and the closeness of geographic proximity between the two events, sufficiently support the inference that the same person built both bombs. The district court minimized any risk of unfair prejudice by carefully instructing the jury not to use the evidence of the Quincy bombing to infer Trenklers guilt simply because he was a bad person or because the fact he had built a bomb in the past made it more likely he had built a bomb in this case. United States v. Stevens [Reverse 404 (b)] Rule: A defendant must demonstrate that the reverse 404(b) evidence has a tendency to negat his guilt, and that it passes the Rule 403 balancing test. Holding: Based on our survey of the case law, we believe that the district court imposed too stringent a standard of similarity on Stevens, and that the government has unnecessarily compartmentalized the permissible uses of reverse 404(b) evidence.

y We conclude that the probative value of the Mitchell robbery was not substantially outweighed by the prospect of undue delay or confusion of the issues.
*The Stevens court held that because prejudice to the defendant is not a factor . . . the admissibility of reverse 404(b) evidence depends on a straightforward balancing of the evidences probative value against considerations such as undue waste of time and confusion of the issues

United States v. DeGeorge The district court allowed the govt to introduce evidence that DeGeorge had previously lost three insured vessels at sea. The court reasoned that the prior losses were inextricably intertwined with the facts giving rise to the indictment against DeGeorge, [despite] Rule 404(b). Rule: We have recognized two categories of evidence that may be considered inextricably intertwined with a charged offense. 1) Evidence of prior acts may be admitted if the evidence constitutes a part of the transaction that serves as the basis for the criminal charge. 2) Prior act evidence may be admitted when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime. Holding: Contrary to the govts assertion, the evidence of DeGeorges prior marine losses does not appear to fit into the first category. The prior losses are too far removed in both time and circumstance to be linked with the alleged fraud in this case as part of a single criminal episode. The prior evidence does fit into the second category. The concealment of DeGeorges prior losses had an important factual connection to several counts contained in the indictment. The govt presented evidence, including Elinburgs testimony, to support the allegation of sham transactions. The jury would not have understood the relevance of the transactions and concealment without hearing at least some explanation for why DeGeorge could not obtain insurance in his own name. The court limited the use of the prior loss evidence to correspond with the issue to which it was relevantthe probative value of this limited evidence was not substantially outweighed by the danger of unfair prejudice.

Doctrine of Chances The doctrine of chances relies on the belief that multiple misfortunes, if similar enough and rare enough, suggest guilt only because of the unlikelihood of innocent coincidence.

Huddleston v. United States Issue: The issue is whether the trial court must make a preliminary finding before similar act and other Rule 404(b) evidence is submitted to the jury. Holding: We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. y Rule 404(b) generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actors character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge. y The threshold inquiry under Rule 404(b) must be whether the evidence is probative of a material issue other than character. y Similar act evidence is relevant only if the jury can conclude that the act occurred and that the defendant was the actor. Propensity Evidence in Sexual Assault Cases Rules 413, 414, & 415 are true exceptions to the propensity evidence ban. These rules permit prosecutors and civil plaintiffs to offer evidence of the defendants other acts of sexual assault or child molestation on any matter to which is relevant. Lannan v. State y Acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of the character y The exception also has been based on the need to bolster the testimony of victims: to lend credence to a victims accusations or testimony which describe acts which would otherwise seem improbable standing alone. y The general rule prohibiting the state from offering character evidence merely to show the defendant is a bad guy and therefore probably committed the crime with which he is charged remains as fundamental today as ever. . . We have not yet reached a point, though, where we are prepared to abandon a basic tenet of criminal evidence law older than the republic itself, however desirable the social end may be. y Abandoning the depraved sexual instinct exception does not mean evidence of prior sexual misconduct will never be admitted in sex crime prosecutions. It means only that such evidence will no longer be admitted to show conformity with a particular character trait it will continue to be admitted for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

State v. Kirsch y Trial Ct. found three evidentiary purposes for the bad act evidence: motive, intent, and common plan or scheme. y Motive refers to the reason that nudges the will and prods the mind to indulge the criminal intentor what prompts a defendant to engage in a particular criminal activity. y Whether nominally labeled motive, intent or common plan, the ostensible purpose for which the prosecution sought to admit evidence of a multitude of other uncharged sexual assaults was to show the defendants predilection for molesting young females over whom he was able to gain control through engendering trust. Notes on Rules 413, 414, and 415 By enacting Rules 413, 414, and 415. . . Congress sought to ensure that federal trial judges could admit evidence of past sexual misconduct in sexual assault and child molestation cases without having to stretch the meaning of intent, motive, and plan. United States v. Guardia y Evidence under Rule 413 must meet three threshold requirements before a district court can admit it. o It must be determined that the defendant is accused of an offense of sexual assault. R 413(d) o The court must find that the evidence proffered is evidence of the defendants commission of another offense of sexual assault. R 413 (a) o The evidence must be relevant [has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.] y Under Rule 413, evidence of a defendants other sexual assaults may be admitted for its bearing on any matter to which it is relevant. Rule 413 supesedes Rule 404 (b)s restriction and allows the government to offer evidence of a defendants prior conduct for the purpose of demonstrating a defendants propensity to commit the charged offense. y We hold that the 403 balancing test applies to Rule 413 y The fact that Congress created Rule 413 can only mean that Congress intended to partially repeal the concrete application found in 404(b) for a subset of cases in which Congress found 404(b)s rigid rule to be inappropriate. y The court must still keep in mind 403 considerations

y When balancing Rule 413, the District Court should not alter its normal process of weighing the probative value of the evidence against the danger of unfair prejudice. y Propensity evidence however, has indisputable probative value. The value in a given case will depend on innumerable considerations, including the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the charged acts, the frequency of the prior acts, the presence or lack of intervening events, and the need for evidence beyond the testimony of the defendant and the alleged victim. y Because so much depends upon the medical propriety of Dr. Guardias conduct towards the accusers, the fact that Dr. G treated the four additional witnesses under similar but distinct circumstances creates a substantial risk of jury confusion. . . The subtle factual distinctions among these incidents would make it difficult for the jury to separate the evidence of the uncharged conduct from the charged conduct. United States v. Mound (dissent) y The en banc court ought to consider whether Rule 413 presents so great a risk that the jury will convict a defendant for his past conduct or unsavory character that it violates due process. y There is a great deal of evidence that the prognosticative power of past sexual behavior is quite low; in fact, the recidivism rate for rape is lower than that for any major crime other than murder. . . The kind of review we ought to undertake, although requiring us to consider matters already weighed by congress, it is inevitable when fairness is the subject of judicial inquiry. Proof of the Defendants and the Victims Character Michelson v. United States y Determination of whether was defendant arrested due to entrapment, rests on whether the jury should believe the agent or the accused y Defendant-petitioner challenges the right of the prosecution to cross-examine his character witnesses using such a technique. . . (rumor of misconduct, when admitted, goes far, in spite of all theory, and the judges charge, towards fixing the misconduct as a fact upon the other person, and thus does three improper things: o It violates the fundamental rule of fairness that prohibit such facts o It gets at them by hearsay only, and not by trustworthy testimony o It leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue.

y [The value of the inquiry for testing purposes is often so small and the opportunities for abuse by underhand ways are so great that the practice may amount to little more than a mere subterfuge. . . y The law extends helpful but illogical options to a defendant. Experience taught a necessity that they be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair and unreasonable one. The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. [the prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat . . . additionally the defendants own witness is subject to cross examination as to the contents and extent of the hearsay on which he bases his conclusions . . . ] y The inquiry as to an arrest is permissible also because the prosecution has a right to test the qualifications of the witness to bespeak the community opinion. y The inquiry was permissible. It was proper cross-examination because reports of his arrest for receiving stolen goods, if admitted, would tend to weaken the assertion that he was known as an honest and law abiding citizen. Michelson Afterthoughts Rule 404(a)(1) permits criminal defendants to offer proof of pertinent traits of their own character. Rule 404(a)(2) permits criminal defendants to offer proof of pertinent traits of the alleged victims character. y Defendants often deploy the rule when pleading self-defense against a charge of violence. Rules 404(a)(1) and (2) permit the defendant to lead the jury through the propensity box. [The sole exception to the general rule that only the defendant may lead with character evidence is a narrow one: in homicide cases Rule 402(a)(2) permits the prosecution to offer evidence of the victims peaceful character if the defendant has offered evidence that the victim was the first aggressor.] Both rules only give criminal defendants the option to open the character inquiry . . . civil case evidence of a persons character is never admissible to prove that the person acted in conformity with the character trait. [Both rules permit defendants to prove only pertinent traits of character. Michelson could offer evidence of his honesty; he could not have offered evidence of his peacefulness, since he had faced no charge of violence]

Whenever the defendant offers evidence of her own character under Rule 404(a)(1) or of the alleged victims character under Rule 404(a)(2), the manner of proof is controlled by Rule 405(a). Rule 405(a) permits the character witness to testify in the form of opinion or reputation only. [The rule preserves the common law bar against proving character by evidence of specific actshowever the rule does permit inquiry into relevant specific instances of conduct on cross examination of the character witness] y The litigant may ask about specific acts only to test the character witnesses knowledge of the defendants reputation, or her familiarity with the defendant. y Rules 404(a)(1), (a)(2), and 405(a) generally perpetuate the traditional common law principles at work in Michelson[the differences are that 405(a) permits opinion whereas the common law only permitted reputation evidence; and if the defendant offers evidence of an alleged victims character under Rule 404(a)(2), the prosecution may offer evidence that the defendant shares this same trait of character, even if the defendant has not put his own character in issue. ] Only criminal defendants may open the matter of character under Rules 404(a)(1) and (a)(2) [Permission to offer character evidence about defendants and their alleged victims was a special dispensation to criminal defendants whose life or liberty were at hazard] Character evidence may mean more to criminal defendants than to the other litigant because criminal defendants bear the slightest burden of any litigant. Additionally character evidence creates an asymmetrical a risk of unfair prejudice. [A prosecutors evidence about the defendants bad character could prompt the jury, even if unconvinced of his guilt in the present case, to punish the defendant for his past bad acts or for his general bad character. When the accused offers evidence of his good character, however, there is little risk of unfair prejudice to the government.] Distinguishing Proof of Character Under Rules 413 to 415 Rule 405(a)s requirement that proof be by reputation or opinion does not apply to Rules 413, 414, and 415. [These rules require proof by specific acts] y There is of course a risk that proof and counterproof of other sexual offenses under Rules 413 to 415 could swell into a trial within a trial, distending the proceeding and distracting the jury from the crime at hand. Distinguishing Proof of Character Under Rule 405(b) What does it mean for a character trait to be an essential element of a charge, claim, or defense.

[For example: the essential element in a self defense claim is not that the victim have been a violent person but instead that the defendant reasonably feared for her life or safety at the time she attacked the alleged victimActing is self-defense is not defined as attacking someone of violent character.] Rule 405(b) applies only when the existence of the character trait and not- any conduct done in conformity with that trait-is the thing to be proved. Examples: y Rebutting an entrapment defense- Prosecutors may rebut the claim by showing that the defendant was predisposed to commit the crime. [The govt need not prove the defendant was acting in conformity with a (criminal disposition) at the time of the alleged offense. The existence of the predisposition is the critical thing. y Rebutting a defense of truth in a libel or slander action If defendant claims her accusation was truthful, the trial will focus on whether the plaintiff is indeed a thief, a bully, or a liar. In that event the existence of the character trait is the critical thing. y Resolving a parental custody dispute- Here each litigants character as a good or bad parent is the critical thing. [The commonality to all three situations is that the litigants aim is to prove the existence of the character trait, not action done in conformity with that trait.] Halloran v. Virginia Chemicals Inc. Defendant on cross examination of Halloran and on its defense, sought to establish that it was Hallorans usage and practice that was the cause. Defendant offered a witness prepared to testify not only that he had seen Halloran on previous occasions using an immersion coil to heat Freon, but that he had warned plaintiff about the danger as well. Because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again, evidence of habit has, since the days of the common law reports, generally been admissible to prove conformity on specified occasions. If, indeed, the use of an immersion coil tended to be part of defendants routine whenever it was necessary to accelerate the flow of refrigerant, as he indicated was often the case, the jury should not be precluded from considering such evidence as an aid to its determination.

[A party must be able to show on voir dire, to the satisfaction of the trial judge, that he expects to prove a sufficient number of instances of the conduct in question] If defendant be able to fix, at least generally, the times and places of such occurrences, a finding of habit or regular usage would be warranted and the evidence admissible for the jurys consideration. [Evidence of habit or regular usage, involves more than unpatterned occasional conduct . . . it involves a repetitive pattern of conduct and therefore predictable and predictive conduct] When a person performs the same conduct over and over again the same way, as Halloran was alleged to have done, we can predict with some confidence how that person will perform that act the next time. The more predictive the evidence of other acts is, the more probative it is of present conduct. [The advisory committees judgment that regular drinking does not qualify as habit is therefore some evidence that the committee meant to extend the category of habit only to relatively innocuous behavior] Because there is no straight line separating habits from the sort of character-based propensities that are regulated by rule 404a court can perhaps do no better than to revert to the principle that underlies Rule 404s ban against propensity evidence-the Probativeness-versus-unfair prejudice weighing test of Rule 403. y Because proof of habit does not involve drawing inferences from general traits of character it falls outside Rule 404(a)s bar against evidence of character offered to show action in conformity therewith. [It is a route around the propensity box]

Character and Credibility Extrinsic Evidence Extrinsic evidence will not be admitted on a collateral matter. Rule 405(a) informs that the litigant may ask a character witness on cross-examination whether that witness has heard of a specific act committed by the person about whose character the witness is testifying.

y Regardless of the witnesss answer, the lawyer may present no other evidence. Rule 608(b) informs that the litigant may cross-examine a witness about specific instances of conduct that bear on character for truthfulness. Conduct (other than conviction of a crime as provided in Rule 609) may not be proved by extrinsic evidence. y If the witness denies having done (or heard of) the specific act, the lawyer may present no other evidence about it. y The irony of 608(b) is that it works only when the witness is honest enough to acknowledge the prior impeaching acts.

In both 405(a) and 608(b) circumstances the litigant must accept the answer of the witness to the question posed on cross-examination.
[The matter in question (the defendants character in the first case, a witnesss character in the second) is deemed to be collateral, or not directly probative of the issue in dispute. Evidence of specific acts beyond what may be gleaned on cross-examination is deemed to be extrinsic meaning more than or outside of what can be gleaned on cross-examination.]

Rule 608(b) imposes an absolute bar on extrinsic evidence only if the sole purpose for offering the evidence was to prove the witnesss character for veracity. Evidence that tends to prove both a collateral matter and something else may well be admissible. For example, if evidence were offered to show bias in addition to the witnesss character for untruthfulness. y A litigant would be able to offer that testimony to contradict the witnesss testimony on the question of bias. Because bias is not character evidence governed by rule 608, so a witnesss bias is not deemed collateral. (Same principle for prejudice & motive to lie) y Justice Rehnquist It would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness was a liar. Another Example (Pisari case) a witness denied committing a robbery by knife. The prosecutor called an ATF agent to testify that the defendant had told him that he committed a knife robbery in 1977. Evidence of the rule was arguably admissible for either of two purposes: y As a specific instance of conduct tending to show the defendants character for truthfulness under 608(b); and

y As evidence of a previous act so similar to the knife robbery with which the defendant stood charged that it tended to show identity and was therefore admissible under rule 404(b). The Ct. of Appeals ruled that evidence of the previous knife robbery was not admissible under rule 404(b) because the similarities between the two robberies were not so distinctive as to give rise to an inference that the same person was involved in both. That ruling left only one possible route of admissibility for the original question asked on crossexamination to show character for untruthfulness under rule 608(b). Rule 608(b) clearly barred the follow-up questioning of the ATF agent, which constituted extrinsic evidence. Therefore, the prosecutor had no further recourse once the defendant denied the earlier robbery. y Rule 608(b)s bar against extrinsic evidence applies only to evidence offered to show the witnesss general character for truthfulness. The rule places no restriction on extrinsic evidence offered to show that the witness lied about non-character matters in the particular case.
[It is hardly clear that an old knifepoint robbery would have been probative of Pisaris truthfulness or untruthfulness]

The Rape Shield Law People v. Abbot Both [the promiscuous and the virtuous] are equally under the protection of the law. If either of them have in truth been feloniously ravished, the punishment is the same, but the burden of proving the crime is different. It requires that stronger evidence be added to the oath of the prosecutrix, in one case than in the other. State v. Sibley It is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when upon that alone, while it does of a woman . . . what destroys the standing of the one in all the walks of life has no effect whatever on the standing for truth of the other. Concurrence The rule [witnesses being able to testify to general character] only admits the evidence when it has ripened into a general reputation for the vice. For my part, I think it rests upon the same foundation whether the witness be male or female.

State v. Smith Issue: The question concerns a defendants assertion that the trial court improperly precluded him from introducing evidence of prior false allegations of molestation made by victim. Rule: La. C.E. art. 412 bars introduction of victims sexual past except to that evidence of the victims past sexual behavior with persons other than the accused; such evidence is also admissible to challenge the source of semen or injury, and evidence of past sexual behavior with the defendant is admissible to show victim consented. Holding: Defendant was not seeking to prove that the victim had engaged in prior sexual behavior or that she had an unchaste character. Rather, defendant sought to prove for impeachment purposes that the victim had, in the past, made false allegations regarding sexual activity . . . prior false allegations of sexual assault does not constitute past sexual behavior for purposes of our rape shield statute.

Olden v. Kentucky Rule: A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby expose these facts to the jury. Holding: It is plain to us that a reasonable jury might have received a significantly different impression of the witness credibility had defense counsel be permitted to pursue his proposed line of cross-examination. Reversed and Remanded.

Biased-based impeachment suggests that the witness has a motive to lie in this case, not that he has a bad character for truthfulness. If not for rape-shield provisions, state rules modeled after FRE 608(b) typically would permit a defendant to cross-examine his accuser about past false complaints and to argue that these past lies show her propensity to lie about rape. There is no consensus on this issue. Cattel v. White states that past false accusations are themselves evidence of bias, so defendants have a sixth amendment right to ask about them.

Stephens v. Miller The Court did nothing arbitrary or disproportionate to the purposes the Indiana Rape Shield Statute was designed to serve when it excluded the doggy fashion and partner switching statements. The jury was entitled to credit the complainants story, discount Stephens account, and return a guilty verdict. The trial court properly balanced the states interests with Stephens right to testify when it excluded the testimony at issue.
*If Stephens Res Gestae (the thing done) argument were correct, as a matter of constitutional law, criminal defendants could circumvent rape shield statutes by claiming that they said something near in time and place to the alleged rape or attempted rape about the victims past sexual history or reputation . . . no court has ever held that res gestae is a concept with any constitutional significance.

United States v. Knox The appellant sought to do what 412 seeks to prevent: portray an alleged rape victim as a bad person who got no more than she deserved. For the reasons stated, the findings of guilty and the sentence are affirmed. In Knox the accused wanted to offer evidence that he previously had heard of the victims reputation for promiscuity . . . this evidence, he said, would explain why he was reasonably mistaken about whether she consented to have sex with him on the night in question. Since he could not fit such evidence under either of the narrowly defined exceptions to Rule 412; 412(b)(1)(A); or 412(b)(1)(B), he claimed instead that excluding this evidence violates the Constitution 412(b)(1)(C). Reliability Defining Hearsay The hearsay rule is about the reliability of the evidence the jury hears. It is an out of court statement offered by a litigant to prove what the declarant asserted. y Nonhearsay testimony has for possible sources of unreliability: o Perception (witness saw John but mistook him for Tom) o Memory (The witness saw and recognized John, but now thinks it was Tom)

o Narration/Ambiguity (The witness means to say John but says John. o Sincerity (The witness means to deceive)

Despite these potential infirmities, we regularly permit witnesses to testify about facts that they observed because of three courtroom tools. The Oath Witnesses swear to tell the truth Demeanor Jurors scrutinize faces and mannerisms Cross Examination Opposing lawyer probes for inaccuracies The problem of hearsay occurs because the probative powers of the oath, demeanor, and cross reach only as far as the reliability of the witnesss testimony of what the declarant said. (In order to rely on the truth of declarants assertion, we must rely on his untested testimonial capacities). There are several common nonhearsay purposes for evidence of an out-of-court statement. Three of them are: y To prove the impact of the statement on someone who heard it y To prove a legal right or duty that was triggered by (or offense caused by) uttering the statement; and y To impeach the declarants later, in-court testimony. The important question is always whether the litigant is offering the statement to prove what it says or was meant to say. If not the statement is not hearsay. Words offered to prove their effect on the listener It does not matter whether the declarants testimonial capacities are sound, therefore it does not matter that the opposing lawyer cant subject declarant to the courtroom tests of oath, demeanor, and cross. (All we need to know is that the declarant uttered the words and that the defendant heard and believed them) Legally Operative Words (Verbal Acts)- Simply by uttering certain words, a declarant can trigger a legal right or duty or commit an offense. The statements operate independent of the speakers belief or intended meaning. Inconsistent Statement Offered to Impeach The theory of such impeachment is not that the out-of-court statement is true; rather, it is that the out-of-court statement proves that the witness has said different things at different times about this fact, so her testimony on this point cant be trusted.

Statements of Party opponents: The hearsay rule poses no obstacle to confessions made freely. Rule 801(d)(2)(A) says that a partys own words are not hearsay when offered against her at trial. y Most statements offered by a litigant against an opponent were against the opponents interest when she made them. o Although a person may lie to advance their interests, people rarely lie in ways that hurt themselves. As a general matter, a statement that harms the speakers interests is more likely to be truthful than is ordinary hearsay. o However the rule only requires that there be a statement, and that it be offered against its maker. o Furthermore it would seem odd, for a party to complain that she cant cross-examine the declarant when she is the declarant. If a party wishes to probe the circumstances under which her own statement was mad, she may simply take the stand and do so. o Lastly it is the result of the adversary system; a defendant will not be heard to complain that her own statement may be unreliable. Mahlandt v. Wild Candid Holding: The trial judge was wrong to exclude the evidence of Mr. Poos statements as against himself or Wild Candid Survival and Research Center Inc. The note is not hearsay. It was his own statement, and as such is clearly different from the reported statement of another. The rationale discussed by the AC about in house discussion with respect to rule 801 (d)(2)(C) situations applies to (rule) (D) situations. Mr. Poos had actual physical custody of Sophie. His conclusions, his opinions, were obviously accepted as a basis for action by his principal. AC Notes [communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a partys books or records are usable against him, without any intent to disclose to third parties]

Coconspirator exception to the hearsay rule. The preconditions are: y A conspiracy existed at the time the out-of-court statement was made: y That the conspiracy included both the declarant and the party against whom the statement is offered; and y That the declarant spoke during the course of and in furtherance of the conspiracy.

The Supreme Court held that a trial judge should decide these preliminary questions under 104(a), with a preponderance of the evidence standard of proof. They further decided that the contested hearsay statement itself could be evidence of the existence of the conspiracy and other preliminary facts. The last sentence of the rule states: The contents of the statement shall be considered but are not alone sufficient to establish . . . the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered. However Congress added that sentence in 1997 ten yrs after Bourjaily . . . Nevertheless Bourjaily has relevance regarding the general question that underlies the case; namely, whether contested evidence ever may be evidence of its own admissibility. Bourjaily v U.S. Prior decisions regarding admissibility determinations that hinge on preliminary factual questions have traditionally been established by a preponderance of proof. The evidentiary standard is unrelated to the burden of proof on the substantive issues. Therefore, we hold that when the preliminary facts relevant to 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence. Issue: Does Glassers bootstrapping rule remain viable after the enactment of the enactment FRE. Out-of-court statements are only presumed unreliable. The presumption may be rebutted by appropriate proof. Also individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. Taken together, these two propositions demonstrate that a piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence. A per se rule barring consideration of these hearsay statements during preliminary factfinding is not therefore required. Each one of Lonardos statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and Greathouse was corroborated by independent evidence. In its report on Rule 801(d)(2)(E), the Senate Judiciary Committee noted it is this committees understanding that the rule is meant to carry forward the universally accepted doctrine that a joint venture is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged. A joint venturer is one who knew of the venture and intended to associate with it.
[The rule almost never applies to a confession made knowingly to the police and implicating ones associates. The statement must be made during the course and in furtherance of the conspiracy. Such a confession works to terminate the conspiracy. It almost never furthers the conspiracy]

Difference between 104 (a) and 104(b) 104 (a) and 104(b) both address how we should resolve questions on which the admissibility of evidence depends. y In Bourjaily the Court determined that rule 104(a) requires that the trial judge herself decide whether the preliminary conditions of the coconspirator exception were proved. And the Court determined that the judge must decide these questions by a preponderance of the evidence y In Huddleston the Court held that in determining whether the govt has introduced sufficient evidence to meet Rule 104(b), the trial court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence. The preponderance standard of Rule 104(a) is higher than the sufficient-evidence standard of rule 104(b). 104(a) evidence used to prove facts under the rule neednt be admissible. However, under 104(b) only admissible evidence may be used to prove contested preliminary facts the introduction of evidence sufficient to support a finding of the fulfillment of the condition. The Rule 104(a) suggests that all preliminary questions are to be resolved by the court subject to the provisions of subdivision (b). That is Rule 104(b) governs matters of conditional relevance, and Rule 104(a) governs everything else.
*Remember that the difficulty with hearsay is not that it is irrelevant, but rather that it generally is less reliable than live testimony because the speaker is not in court, under oath, and subject to cross-examination. Since the preliminary questions imposed by the coconspirator exception are not matters on which the relevance of Lonardos statement depended, they had to be resolved by the judge under 104(a).

Inconsistent Statements Offered to Impeach United States v. Barrett Defenses witness met with prosecutions witness in 1974 in a Boston area restaurant. Defenses witness was prepared to testify that prosecutions witness stated that he knew Barrett was not involved. Furthermore, a waitress who overheard the prosecutions witness utter that comment; was prepared to corrobate with her own testimony. Defense argues that even though these statements are hearsay they still should have been admitted as a prior inconsistent statement to impeach Adams credibility (As Adams had earlier testified he had been involved in the stamp transaction).

Holding: The statement was clearly inconsistent. It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness it is sought to contradict . . . It may well be that the testimony would have turned out to be inadequate, but this possibility is not a ground for keeping evidence from the jury, which is the principal judge of the credibility of witnesses and the weight to be given to otherwise competent testimony. Vacated and Remanded.

United States v. Ince Since the U.S. only apparent purpose for impeaching one of its own witnesses was to circumvent the hearsay rule and to expose the jury to otherwise inadmissible evidence of Inces alleged confession, we reverse. At a criminal trial there are limits on the govts power to impeach its own witness by presenting his prior inconsistent statements. A trial judge should rarely, if ever, permit the govt to impeach its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime for which the defendant in being tried. Stevens presentation of additional unsworn hearsay testimony going directly to the issue of Inces guilt was extremely prejudicial . . . it should have been excluded absent some extraordinary probative value. Since Stevens so called impeachment testimony was both highly prejudicial and devoid of probative value as impeachment evidence, the trial judge should have recognized the tactic as an attempt to circumvent the hearsay rule and to infect the jury with otherwise inadmissible evidence of Inces alleged confession. Fletcher v. Weir Respondent took the stand in his own defense, claiming he acted in self-defense and that the stabbing was accidental. This in-court statement was the first time respondent offered an exculpatory version of the stabbing. The significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest.

In Jenkins v. Anderson we held Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so consistent with present statements that impeachment by reference to such silence is probative. Doyle is a case where the govt induced silence by implicitly assuring the defendant that his silence would not be used against him. In the absence of affirmative assurances embodied in Miranda warnings, we do not believe that it violates doe process of law for a state to permit crossexamination as to postarrest silence when a defendant chooses to take the stand. Silence sometimes constitutes an adoption under Rule 801(d)(2)(B). There are four preconditions to using silence as evidence of an adoptive admission: 1. The statement was heard and understood by the party against whom it is offered; 2. The party was at liberty to respond 3. The circumstances naturally called for a response 4. The party failed to respond. If a person has been advised explicitly that she neednt speak and that her words may be used against her, it is no longer natural to expect her to speak. [Miranda warnings contain an implicit assurance that silence will carry no penalty. To use a persons silence against them would be unfair. Section B 6 Washington Post Identify Hearsay statement. Is there an exception.

Justin Brown Norwood and Murray then left the store, heading in different directions. Murray called Nwakibu, who said she had not sold the yoga pants to Norwood. Several minutes later, Murray got a call from Norwood, who said she had left her wallet at the store and asked Murray to meet her there so she could get it. Norwood made that call to lure Murray back to the store, McCarthy said. An argument ensued, in which Norwood could be heard saying to Murray: Tell me whats going on. Norwood then attacked Murray. McCarthys problem, legally speaking, was that to tell that account to jurors, he would have had to piece it together from cellphone records and by calling Nwakibu as a witness to recall words spoken to her by Murray in other words, hearsay, which is often inadmissible in court trials. I dont know how much more hearsay it could be, Montgomery Circuit Judge Robert Greenberg told McCarthy in court Monday, before the jury was ushered in for the day. And I am not going to permit it. McCarthy had another option for getting the theft allegation into the trial: Norwoods statements March 18, the day she was arrested. Detectives allowed her brother to come into an interrogation room and left the two alone. An audio-video system picked up their conversation. Norwood acknowledged to her brother that shed been accused of stealing, McCarthy wrote in court papers filed before the trial. Wahington Post 11/1/11

Answer:
[Subject to the residual catch all exception of FRE 807. The Forfeiture by Wrongdoing exception under FRE 804 (b)(6), gives a hearsay exception for a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness. Although Norwood did not necessarily intend to kill Murray to keep her from testifying at trial as a witness; she nevertheless procured the witnesses unavailability. 807 applies because 1. The cell phone records provide the necessary circumstantial evidence; 2. It would be offered as evidence of a material fact (that Nwakibu received the call concerning the yoga pants helping to establish motive on the part of Norwood) 3. The statement would be more probative on this point because the witness could provide a detailed account with her live testimony, and there is no other source of information as probative. 4. It is in the interest of justice (because I surmise) the judge could make a 403 determination that the testimonys probativeness would substantially outweigh any potential unfair prejudice to the defendant, and that the testimony does not contravene the FRE in any other way; and finally 5. all of this is conditioned upon the assumed fact that the prosecution gave the adverse party notice of their intention to offer the statement.]

*Additionally the Audio-Video recording is admissible as well because inanimate objects are not people and
cannot make assertions.