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§ 411 – evidence that person was or was not insured against liability not admissible upon issue of whether person acted negligently or wrongfully. Admissible for other purposes (e.g., agency, control, prejudice of witness) o can impeach witness by saying hired by insurance company
Is rule inadmissible character proof? § 404 – character propensity rule – can’t admit character evidence to prove conduct except o D opens the door for P to rebut good character (See Michelson v. US (1948)) § NOTE: evidence must be pertinent for D to offer § e.g., can ask character witness whether they heard about past conviction § only open door w/ respect to type of character considered (e.g., if show peaceable prosecutor can’t say dishonest) § cross-examination must have good faith basis (rumor not enough) o can rebut D’s evidence of character of victim (e.g., to show self-defense) § 404(a)(2) – homicide exception rule – prosecutor can anticipate in case in chief that D might claim victim was first aggressor o evidence provided in 607, 608, 609 o other crimes, wrongs or acts – on cross exam § need (1) good faith basis for believing D committed bad act; and (2) specific bad act is relevant to specific character trait § NOT admissible to show violent/bad tendency · See, e.g., People v. Zackowitz (NY 1930) – couldn’t admit evidence of arsenal to show D was dangerous, evil man § BUT admissible for other purposes (e.g., proof of motive, intent, preparation, identity, absence of mistake) · identity - reasoning is that 2 incidents with same peculiar actus reus (distinct MO) probably performed by same person o See US v. Danzey (2d Cir. 1979) – admitted evidence of 15 similar robberies to show design, system or plan § not more prejudicial than probative b/c only evidence of D’s identity · Doctrine of chances – multiply probabilities - objectively improbable so many accidents would befall accused o increasingly likelihood of event o See, e.g., Brides in the bath case; infanticide case; US v. Beechum (could bring in testimony of stolen credit cards to show intent to give silver dollar to supervisor) § not just impeachment; actually introduce · element of crime (extortion; rebutting entrapment) o 403 balancing § how disputed is point? § how adequate is proof of prior misconduct (conviction v. arrest) § probative force (less if remote in time) § proponent’s need for evidence? § availability of less prejudicial proof? § inflammatory effect § similarity to charged crime § effectiveness of limiting instructions § extent to which evidence prolongs proceedings o can stipulate but can’t always reproduce evocative effect by dry stipulations (Old Chief) § 406 – habit – can introduce evidence of someone’s habit to show they’ve acted in conformity with habit o difficult to distinguish character and habit § character – disposition general enough to encompass lots of different kinds of specific behavior § habit – disposition that manifests self by narrow range of behavior (regular response to specific situation) o drunkenness and violent behavior don’t count
SO shows you that you have to fit it in habit box to get it to count – or even just say it’s between character and habit à 403 balancing
§ 405 – allowable methods of proving character – o (a) reputation or opinion § e.g., D is a good person § can have cross exam about specific acts · purpose not to establish that the acts took place, but test witness’ knowledge/credibility o (b) specific instances – ONLY if character essential element of charge o witness needs foundation (i.e., knowledge) under 602 o SO if permissible proof under 404, Rule 405 governs form § dangers of character proof o jury might punish uncharged misdeeds o jury might overvalue probative worth o Davies – scientific evidence unclear re: whether character has any relevance in predicting actions § 607 – impeachment - any party (including party calling witness) may attack credibility o ways to attack: § bias or motivations (e.g., friendship, financial stake) § defect in mental or sensory capacity (e.g., alcohol, mental illness) § untruthful character (608, 609) · cross exam on conduct and prior convictions § contradiction § extrinsic evidence shows wrong · not barred by 608(b) b/c not about untruthfulness; fact § 608 – impeachment of witness for untruthfulness – no extrinsic evidence o 2 limitations § (1) evidence refers to character for truthfulness or untruthfulness § (2) evidence of truthful char admissible only after character attacked o need foundation for testimony under 602 (basis for opinion) o can’t prove specific instances of conduct (other than conviction – Rule 609) by extrinsic evidence but can come in under cross exam o broad view is that any conduct indicating bad character (e.g., robbery, assault) indicates untruthfulness, but narrower view is that behavior only bears on veracity if it involves falsehood or deception § FRE rejects broad view but some support for middle view – can ask about acts where witness seeks personal advantage by depriving others of rights § US v. Fearwell (DC Cir. 1978) – petty larceny isn’t crime of dishonesty o Rule 608 ?s to ask § is testimony character propensity proof à inadmissible § is it truthfulness/untruthfulness à admissible · reputation/opinion okay under 608(a) · no bolstering; only rehabilitation § specific acts only on cross exam · no extrinsic evidence o NOTE: sometimes better for attacking party to use 608 and ask about acts themselves than 609 and ask about convictions o Rule 608 prohibition on extrinsic evidence doesn’t apply to impeachment for bias (US v. Abel (1984)) o collateral matter rule – may not impeach w/ extrinsic evidence on collateral matters (e.g., what was playing at movies) § must be matter that would independently come into evidence (i.e., bears on substantive issues) § rationale is to keep thing focused (crystallization of Rule 403) § See US v. Pisari (1st Cir. 1981) – couldn’t admit previous robbery with similar, but not identical MO; defense is alibi § 609 - impeachment by evidence of conviction of crime - extrinsic o (c) not admissible if pardon, annulment or cert of rehab o (d) juvenile adjudications generally admissible
o DK thinks judge applies dishonest, recent category in 403 way § so attitude towards evidence helps judge determine whether to admit o under Luce v. US (1984), D must testify to later urge error on grounds of admission of convictions o remote crimes – honest or dishonest and felony or misdemeanor may color 403
Is it a sexual assault case? § 412 – shield law – bars evidence of prior sexual conduct to prove (1) alleged victim engaged in other behavior; or (2) sexual predisposition unless o in civil case – probative value substantially outweighs harm to victim or unfair prejudice to any party o in criminal case – 3 exceptions § (1) prove person other than accused source of semen, injury or phys. evidence; § (2) evidence of specific instances of sexual conduct b/w victim and accused to prove consent; § (3) evidence where exclusion would violate constitutional rights (e.g., victim stated she’d have sex with 1st person encountered that night) o higher than 403 standard in 3 respects § presumption is exclusion unless proponent demonstrates admissibility § must substantially outweigh, not just outweigh § harm to victim on scale along with prejudice o SO can admit reputation evidence of unprovoked violence but not of promiscuity § BUT can get what D believed of reputation (Doe v. US (See 4th Cir. 1981) – admissible to support claim of mistake re: consent) o sexual conduct includes physical conduct, dress, speech and lifestyle o adopted by every state § 413 – evidence of similar crimes admissible in sexual assault cases (even if uncharged) for “any matter to which it is relevant” o no time limit o presumption in favor of admission § 414 – evidence of similar acts/crimes admissible in child molestation cases § 415 – evidence of similar acts admissible in civil cases concerning sexual assault or child molestation § SO contrast with 404(b)’s general prohibition on evidence of char or propensity o could also get in under doctrine of chances – absence of mistake (recall coins story) § rationale – need for evidence o sexual assault crimes have defense of consent which is hard to rebut o child molestation cases have child victim-witnesses whose credibility easily attacked § Most states have shield laws but only AZ, CA, IL, and LA have sex crimes char. propensity rules § Remember: none of the rules restrain discretion of judge; still makes 403 judgment implicitly or implicitly
Is testimony barred as hearsay? § hearsay = statement (i.e., assertion) offered into evidence to prove the truth of the matter asserted (Rule 801) o is statement assertion? § silence doesn’t usually count · BUT see example of D not responding to comment there bills were $1,000 bills not $1 bills (p. 312) o only works if we expected person to say something so asserting § assertive conduct does if intend to make assertion (e.g., black crepe) § judge decides this under 104(a) o concern about reliability of statements b/c can’t cross examine o key ? – does relevance theory depend on crediting truth of what was said (compare jeweler saying I bought these to mens rea for receiving stolen goods) § Tribe – problem with hearsay is declarant not testifying so everything filtered through belief of person testifying o potential problems: (1) misperception; (2) faulty memory (fades over time); (3) risk of insincerity (speaker might shade truth or blatantly falsify); (4) narrative ambiguity (declarant misspeaks or is misunderstood) o two inferences – (1) witness believes X; (2) X is evidence of event or condition o ? – does relevance of statement made by declarant depend on some kind of appraisal on belief of declarant? Or can we draw inference w/o having to make a trip through mind of declarant? § rational truthseeker would admit and rely on jury to discount § Rule 802 – hearsay not admissible except as provided by other rules § Exceptions o 801 (d)(1) – prior statements by witness § A - (1) inconsistent; (2) under oath; (3) available for cross now § B – consistent w/ testimony and offered to rebut impeachment attempts · Tome v. US – must be uttered before supposed motive to fabricate § C - identification § judge decides inconsistency under 104(a) o 801(d)(2) – admission by party opponent (i.e., statement against interest) § A – own statement · Burton v. US – error to admit statement by co-D implicating another · but okay if statements “interlock” (Cruz v. NY) § B – statement of which party “manifested an adoption or belief in its truth” · e.g., affidavit in previous trial · maybe silence in face of admission is relevant (e.g., p. 312 – bills are $1000s not $10s) § C – statement by person authorized to make statement · e.g., attorney pleadings (including opening statements – McKeon) § D – statement by agent · on duty; matter w/in scope of employment o obviously company can’t say making damaging statements outside scope § E – statement by co-conspirator in furtherance of conspiracy · reqs: (1) “during course of” + “in furtherance of” · limiting statement to use as evidence only after jury determines § not more reliable, but realism à improve verdict accuracy · consistent with norms that legitimate proof o 804(b)(2) – declarant unavailable § unavailable = (1) privilege; (2) refusal; (3) lack of memory; (4) death or physical illness; (5) proponent unable to procure attendance § if unavailable à following not excluded · prior testimony w/ opportunity to cross exam o justification weakest for depositions, but might count; high standard for unavailability in cirm cases o grand jury doesn’t count b/c no cross exam o could say less incentive at civ proc so no real opp for cross exam · dying declaration o Shepard v. US (1933) – need imminent death and knowledge of it · statement against interest o must be against interest at time o But need corroborating evidence if exposes declarant to liability and offered to exculpate accused o doesn’t apply to attempts to curry favor (e.g., plea bargains) o US v. Williamson (1994) - only applies to statements against interest and not neutral matters (here statement exonerating D)
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