Professional Documents
Culture Documents
1999)
Brief Fact Summary. Ernestine Jamess (Defendant-Appellants)
boyfriend, David Ogden (decedent) was killed by Defendant-Appellants
daughter, Jaylene Jeffries (Jeffries), and, as a result,
Procedural Posture:
Defendant-Appellant was convicted by a Federal District Court of the
crime of aiding and abetting manslaughter. At trial, Defendant-Appellant
raised the defense of self-defense in the original action. A dividend panel of
the 9th Circuit Court of Appeals affirmed her conviction in her first appeal,
and she appeals that decision here. The 9th Circuit Court of Appeals reverses
the conviction.
Synopsis of Rule of Law. Where a Defendant raises self-defense as a
defense to a charge of manslaughter, it is improper under the Federal Rules
of Evidence to exclude extrinsic evidence of the decedents violent nature
that would have corroborated the Defendants testimony.
Discussion.
The majority holds that because the, crux of [Defendant-Appellant"s]
defense rested on her credibility and because her credibility could be directly
corroborated through the excluded documentary evidence, exclusion of the
documents was prejudicial to Defendant-Appellant. The majoritys decision
to reverse, therefore, was based on what it perceived as an error by the
lower court in considering the prejudicial value of the evidence as it relates
to the decedent, not to Defendant-Appellant. Evidence of the decedents
violent past behavior would have corroborated Defendant-Appellants
testimony, and should have been admitted.
B. Conditional Relevance
Cox v. State ( Ind. 1998)
Brief Fact Summary. Patrick E. Cox (Appellant) was convicted of
murder by a jury following a shooting that left James Leonard (Victim) dead;
the jury found Appellant guilty and the trial court imposed a life sentence.
Appellant appeals his conviction here.
Synopsis of Rule of Law. When probable cause exists to make an arrest
and the arrest is nevertheless made in violation of the Fourth Amendment,
the exclusionary rule does not bar the introduction of statements into
evidence made by a defendant outside of his home following the illegal
arrest.
Facts. Victim was asleep in his home with his wife around 3:00a.m. one
morning when he was shot in the eye by a person outside Victims house;
Victim was taken to the hospital following the shooting, and died three days
later. Bullet holes were found in the bedroom window and the screen to the
bedroom window, and a firearms expert testified at trial that the evidence at
the scene showed that the shot was fired from outside the home, through
the screen, from a distance of less than six inches from the screen. Appellant
was questioned and denied any involvement, but others testified that
Appellant had admitted to them that he had shot Victim. Two police officers
went to Appellants home, believing they had probable cause to arrest
Appellant, but without a search warrant; when Appellant answered the door,
the officers asked Appellant to come with them, at which time Appellant
attempted to shut the door. The officers were nevertheless able to pull
Appellant out and placed him under
arrest. At the police station, Appellant signed a waiver of rights, told police
that he had in fact fired a shot into Victims window, and thrown the gun
away nearby. A search warrant was executed at Appellants home and a gun
was found, which Appellant later admitted was the same gun he claimed to
have thrown away at the scene. Appellant was convicted by a jury after a
trial, during which various parties testified against Appellant.
Issues.
In the present case and under Indiana Evidence Rule 104(b), is the
testimony of the deputy prosecutor concerning events that took place at a
bond reduction hearing of a close friend of Appellant admissible, when the
testimony would only be relevant if Appellant knew of the events prior to the
crime?
Held.
Yes; the testimony of the deputy prosecutor is admissible under Indiana
Evidence Rule 104(b), which provides that, [w]hen the relevancy of
evidence depends upon the fulfillment of a condition of fact, the Court shall
admit it upon . . . the introduction of evidence sufficient to support a finding
of the fulfillment of the condition. Since here the relevance of the
prosecutors testimony depends on a condition of fact (whether Appellant
knew of the events at the bond reduction hearing), and because other
evidence was present that would support a finding that the condition was
fulfilled, the testimony is relevant and admissible.
Rule 403:
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence
Procedural Posture: After a trial, Phillip Alan Bocharski (Defendant) was convicted
in the lower court of first-degree felony murder and first-degree burglary, sentenced to
twenty-one years imprisonment on the burglary charge and to death for the first-degree
murder conviction. Due to the sentence of death, this court reviews the case automatically
pursuant to Arizona law.
Rule of Law. Relevant evidence should be excluded when the probative value of the
evidence is outweighed by the risk of prejudice to a defendant
Issues.
Under the Arizona equivalent of Federal Rule of Evidence 403,
should relevant evidence be excluded when the risk of prejudice outweighs the
probative value of the evidence, and,
in the present case, should the photographs showing Victims stab wounds have
been excluded based accordingly?
Held.
Yes, evidence that is relevant should nevertheless be excluded when the risk of prejudice
outweighs the probative value of the evidence, and the photographs should have been
excluded accordingly; however, because the viewing of the photographs by the jury did not
contribute to or affect the jurys verdict, the error was harmless.
Discussion. The focus of the case is Federal Rule of Evidence 403, and the equivalent of
that rule under the Arizona Rules. Even evidence that is relevant under the Rules
definition should not be admitted when the risk of unfair prejudice outweighs the
probative value of the evidence. The relevancy question, however, is one that trumps
all other inquiries; non-relevant evidence, even when otherwise admissible, must be
excluded. The concurrence stresses the low threshold of the relevancy standard, and
indicates that any tendency to prove or disprove a fact is so low a standard that the
admission of a party opponent evidence at issue here was in fact relevant.
Issue 1: the photographs
Relevant photographs have tendency to prejudice the jury. If they will incite
passion/inflame the jury, ct must apply 403
Yes, relevant bc murder is a result crime, but uncontested issue
42-45 OK, but 46-47 unnecessary and risky.
o State: need to show angles and depths of wounds, juror asked medical
examiner about it
o : no probative value b/c manner of death not at issue, did not show the
s missing knife caused the wounds
o No testimony made 46-47 meaningful, only meet bare minimum standard
of relevance, so conclusion is that their purpose was to inflame the jury.
Issue 2: Did the error affect the jurys verdict:
has not shown that they had a particular adverse effect on the jury
Concurrence. the concurring opinion indicates that the evidence was relevant
under the lenient relevancy standard and therefore holds that it was not error for the
admission to have been admitted into evidence.
Martone: judicial competence issue, absent egregious error, dont disturb 403
weighing by trial judge
Being too paternalistic towards jurors
Commonwealth v. Serge, (Pa. 2006)
Facts:
Serge shot and killed his wife, charged with 1st degree murder. Commonwealth filed
motion in limine seeking to show CGA based on forensic and physical evidence. Trial court
required state to authenticate the animation and exclude inflammatory features, court
required pretrial disclosure.
Procedural Posture:
Defendant was sentenced to life imprisonment following his conviction for firstdegree murder,18 Pa. Cons. Stat. 2502(a), by a county court.
Jury trial: said he acted in self defense, The CGA demonstrated the
Commonwealth's argument that defendant tampered with the crime scene to
stage a self-defense setting by showing the position of the victim and defendant,
and the sequence, path, trajectory, and impact sites of bullets.
The Pennsylvania Court of Common Pleas affirmed the judgment.
Defendant appealed the judgment.
Issue: Whether the trial court erred in admitting a computer-generated animation (CGA)
illustrating the Commonwealth's theory of the homicide into evidence.
Rule of Law: CGA should be deemed admissible if
It is a fair and accurate representation of the evidence it purports to portray
Is relevant pursuant to 401 and 402
Has a probative value that is not outweighed by the danger of unfair prejudice
(403)
DISCUSSION
Alternative to chalk drawings, this is the 21st century
Potency of the evidence is not a factor
The state supreme court held that a CGA was potentially admissible as demonstrative
evidence, as long as the animation was properly authenticated, it was relevant, and its
probative value outweighed the danger of unfair prejudice or confusion, as required by Pa.
R. Evid. 401, 402, 403, and 901.
The state supreme court held that the Commonwealth satisfied all of the foundational
requirements for admitting the CGA as demonstrative evidence.
Furthermore, the CGA was relevant evidence that enabled the Commonwealth experts to
illustrate their opinions and educate the jury on the forensic and physical data.
The alleged prejudicial effect of the CGA did not outweigh its relevance.
Therefore, the appellate court held that the admission of this evidence was proper.
CONCLUSION: The judgment was affirmed.
Concurrence (Cappy, C.J.): Trial court needs to consider whether giving the the
opportunity to present his own CGA will mitigate the prejudicial impact of the evidence
Monetary disparity relevant factor
Concurrence (Castille, J.): Where both parties well funded, its ok to use the CGA.
In caes of indigent , the state should have to fund the defenses ability to adequately
assess the accuracy, or produce one of its own. If no funding , burden on appointed counsel.
Wisest course for trial judge might be to exclude such evidence where the cannot secure
an equivalent production.
Concurrence (Eakin, J.) Cts discussion of finances is dangerous. Relevance, not money, is
what makes something admissible. If needs this kind of evidence, just ask the court.
Remedy is not to ignore the rules of evidence or keep other side from introducing relevant
evidence.
United States v. James Kleinfeld, dissenting:
Problem with the self-defense theory: daughter was chasing him, did not fear victim, so
attorney had to remind the jury that mother is on trial, and judge her by her state of mind.
Judge let in everything showing her state of mind
Makes sense that the papers did not affect her state of mind. Not an
abuse of discretion to keep them out
They are relevant papers to whether he had told the mother he had done those
things, but admissibility does not make exclusion abuse of discretion
Good reasons to keep them out
o Risk of unfair prejudce > probative value
Jury was asking whether the victim deserved to be shot
Relevant purpose outweighed by inappropriate purpose to which jury might put
the documents.
Precedent:
Cohn v. Papke: trial judge abused discretion by admitting s evidence that man
bringing civil rights suit for police brutality after soliciting sex from police officers
was gay sexuality of limited relevance, outweighed by risk of unfair prejudice
United States v. Burks: -- judge characterizes as an anomaly, not in same circuit,
(evidence of victims past violent acts should have been admitted) killer brought
in evidence that victim beat his son to death. Trial judge said unfair prejudice, but
was overturned on appeal
United States v. Driver: 8th circuit, kept out evidence that victim was being
investigated for child abuse
Conclusion: Ms. James got a fair trial, standard of review says it should stay in.
o
2. Evidence of Flight
United States v. Myers (5th Cir. 1977) Clark, J.
Facts. A Florida bank was robbed by a single actor, who disappeared following the
crime. The government charged Appellant with the robbery, but Appellant denied that it was
he who committed the crime.
Appellants friend, Dennis Coffie, pled guilty to the robbery; Coffie, bears a
remarkable physical resemblance to Appellant.
The lower court also allowed evidence of Appellants conviction for another bank
robbery that took place in Pennsylvania to be admitted, despite Appellants
objections. At the conclusion of the trial, the lower court instructed the jury,
concerning the proper use of evidence indicating that [Appellant] fled from FBI
agents on two occasions.
o Florida incident: roommate, FBI tried to contact him, they said they
wanted to find Coffie, she brought him some clothes at the mall, they
were in plainclothes, they saw him, he ran.
o He went to PA
o They arrested him and Coffie in California, 2 months after Fla robbery.
They were in an unmarked car, were in plainclothes, told them they were
under arrest, they were moving away from the motorcycle after
motorcycle crash
o Agent Hanlon testified they didnt attempt to flee. Coffie also said he
didnt know car contained police or federal agents
Procedural Posture:
1st trial: mistrial declared after jury announced inability to reach a verdict
2nd trial: Larry Allen Myers (Appellant) was convicted of bank robbery following a
jury trial and sentenced to ten years in prison.
Appellant appeals that conviction, asserting that the lower court committed error
admitting evidence of Appellants previous conviction for bank robbery, and for
giving the jury a flight instruction that had no evidentiary support.
Jury instruction: intentional flight is not sufficient evidence, but if fact is proved,
jury may consider in determining guilt or innocence.
Issue. Was it reversible error for the lower court to instruct the jury concerning the
proper use of evidence indicating he fled from FBI agents on two occasions after the
commission of the robbery was there insufficient evidence to support it?
Rule of Law:
Flight is an admission by conduct. Probative value as circumstantial evidence of
guilt depends on 4 inferences:
o From s behavior to flight
o From flight to consciousness of guilt
o From consciousness of guilt to consciousness of guilt concerning the crime
charged
o From consciousness of guilt concerning the crime charged to actual guilt of
the crime charged.
NB: criticized on grounds that 2nd and 4th inferences are not supported by
common experience, and it is widely acknowledged that evidence of flight or
related conduct is only marginally probative
BUT flight is admissible as evidence of consciousness of guilt and therefore guilt
itself.
Facts: An elderly lady was shoved down and robbed of her purse by a person
unknown or seen by the victim. When she looked up she saw a young lady running away.
A nearby witness saw a woman run out of the alley and enter a yellow car. As it turned
around he saw a Black male wearing a mustache and beard. He was uncertain of the mans
identity at the police lineup shortly afterward when was beardless. Prosecution called a
math teacher to establish that there was an overwhelming probability that the crime was
committed by the . He testified that there was a 1 in 12 million chance that the s were
innocent.
Issue: Whether evidence of mathematical probability has been properly introduced
and used by the prosecution?
Holding: admission, over objection, of testimony of college mathematics instructor
pertaining to mathematical theory of probability of persons with defendants distinctive
characteristics having committed robbery, without adequate evidentiary foundation or
adequate proof of statistical independence, and without furnishing any guidance to jury on
crucial issue as to which, of admittedly few couples matching defendants characteristics,
was guilty of committing robbery involved, constituted prejudicial error, especially in view of
closeness of case.
Procedure: Obj were timely made to the math testimony, and tr. ct denied motion
to strike testimony was only used to illustrate, Jury found guilty of second degree
robbery. Reversed.
Rule: Introduction of evidence related to mathematical probability statistics require
an adequate foundation in evidence and adequate proof of statistical independence.
Discussion: 2 fundamental errors (1): no foundation, (2) distracted the jury from
proper function
The record is devoid of any evidence relating to any of the six individual
probability factors used. The prosecutor himself suggested what the various
probabilities should be and these became the basis of the witness testimony. A
foundation for the admissibility of the witness testimony was never even
attempted to be laid out, let alone established.
State v. Sneed, mathematical odds are not admissible as evidence to identify a
in a criminal proceeding so long as the odds are based on estimates, the
validity of which have never been demonstrated.
No proof was presented that the characteristics selected were mutually
independent, even though the witness acknowledged that such condition was
essential to the proper application of the product rule or multiplication rule.
The technique used by the prosecution could only lead to wild conjecture w/o
demonstrated relevancy to the issues presented.
The objective measurement of the likelihood of a random couple possessing the
characteristics allegedly distinguishing the robbers, was gravely misguided. No
mathematical equation can prove beyond a reasonable doubt 1) that the guilty
couple in fact possessed the characteristics described by the witnesses, or 2) that
only one couple possessing those characteristics could be found in the entire LA
area. The computation could only factor the probability of a random couple
sharing the characteristics, not the characteristics of the actual guilty couple.
The jurors were undoubtedly impressed by the mystique of the mathematical
demonstration but were unable to assess its relevancy or value.
4. Effect of Stipulations
United States v. Jackson (E.D.N.Y. 1975)
Facts:
DISCUSSION
Rejected OCs argument.
a. A trial is not a serious of stipulations - the jury expects to have some meat.
b. Party autonomy. The parties should not be denied their chosen method of proving their
case just because the other side will stipulate to things that they cannot avoid.
i. Autonomy concern is involved in having an adversarial system in the first place.
c. There is a need for narrative richness.
i. Party cannot be confined to proving their case only in a logical way, but also an
emotional way.
ii. If you force a litigant to accept a stipulation in lieu of what the jury expects from
the evidence, the jury may wonder whats being held back.
407:
408:
409:
410:
411:
Subsequent Remedies
Compromise
Medical Expenses
Pleas
Liability Insurance
Facts: Tuer was in the hospital for a bypass. He had been taking a drug called
Heperin, but according to hospital protocol, he was taken off the drug the day before the
surgery. The surgery was delayed, and Tuer had a heart attack and died.
If Tuer had been put back on the drug he might not have died, although Tuer's
doctor (McDonald) testified that maybe it would have been more risky.
After Tuer's death, the hospital changed their protocols about when a patient is
taken off Heperin.
Procedural History: Tuer's wife sued the hospital, and McDonald for medical
malpractice.
At trial, Tuer's wife attempted to introduce evidence that the hospital changed their
protocol after Tuer's death.
Tuer's wife argued that evidence of subsequent remedial measures was relevant to
showing that the hospital knew that the previous procedures were inadequate.
That could be considered relevant since the hospital was arguing that their
procedures with Tuer had been adequate.
Tuer's wife also argued that even if the evidence was not admissible as a
defacto admission by the hospital that the procedures were inadequate, it should be
admissible to impeach the testimony of McDonald.
If McDonald had actually thought that putting Tuer back on the drug was too risky,
why did he later change hospital procedures to out patients like Tuer back on the drug?
The Trial Judge excluded the evidence.
The Trial Judge found that under Maryland Rule 5-407 (identical to FRE 407)
excluded introduction of subsequent remedial measures to prove culpability, although there
are a few exceptions.
The Trial Court found for McDonald. Tuer's wife appealed.
Tuer's wife argued that the evidence should be admitted to show both feasibility and
to impeach McDonald's testimony.
The Appellate Court affirmed.
Analysis:
Precedent:
Columbia v. Hawthorne: negligence suit for injuries when a pulley fell on employee
S.Ct. held evidence of measures undertaken after the accident inadmissible and reversed
calculated to distract the minds of the jury from the real issue, and to create a prejudice
against the
407: FACRE: 1. Subsequent conduct not in fact an admission, 2: social policy of
encouraging people to take steps for added safety
FRE 407 says that evidence of subsequent remedial measures is admissible to
show feasibility. However, the Appellate Court found that McDonald never testified that
restarting the drug was not feasible, only that it was more risky than other options.
Therefore, the evidence was not admissible in order to show feasibility.
Feasibility is only relevant if someone had testified that taking a certain action was
basically impossible, and then later took that action.
FRE 407 says that evidence of subsequent remedial measures is admissible for
impeachment purposes. However the Appellate Court found that McDonald testimony was
not inconsistent with his actions. The fact that McDonald may now perceive the risks
differently, perhaps even because of Tuer's death, does not contradict that he thought
restarting the drug would have been too risky at the time he was treating Tuer.
"Subsequent remedial measure evidence has been held inadmissible to impeach
testimony that, at the time of the event, the measure was not believed to be as practical as
the one employed."
203 F.3d 477
CASE SYNOPSIS: Defendant appellant sought review from the judgment of the United
States District Court for the Northern District of Illinois, which, after a retrial, entered a jury
verdict on its counterclaims, finding no Racketeering Influenced and Corrupt Organization Act
violations by plaintiff appellee, and struck a verdict awarding damages for breach of contract
to defendant appellant.
FACTS: After a retrial, defendant appellant sought review of the judgment that plaintiff
appellee had not breached its contract or violated the Racketeering Influenced and Corrupt
Organizations Act (RICO).
ANALYSIS:
A new trial should not have been ordered on breach of contract. Although giving the jury
exhibits that had not been admitted into evidence was error, they were cumulative, or had
not been preserved for appeal. Admitting evidence of settlement talks was not erroneous
when defendant appellant needed to refute plaintiff appellee's charges by explaining that it
had acted pursuant to the expected settlement terms.The judgment from the first trial was
reinstated, however, a new trial on the issue of RICO violations was proper. Over plaintiffappellee's objection, the original jury instructions listed many alleged predicate acts that
lacked evidentiary support or did not charge indictable actions, and lacked an explanation of
the requisite fraudulent intent. These were serious errors warranting a new trial. The
judgment on RICO violations was affirmed.
CONCLUSION: On appeal from a retrial, granting of a new trial, and judgment on a retrial
was affirmed as to defendant appellant's racketeering claim; but granting a new trial on a
breach of contract claim was reversed, and the judgment from the first trial was reinstated.
The case was remanded for entry of an amended judgment.
FRE 411:
Williams v. McCoy (N.C. Ct. App 2001)
Facts:
Williams and McCoy in motor vehicle accident and seeking damages.
hired an attorney after s insurance adjuster pressured her to settle and she was
uncomfortable with the interaction
After meeting w/ attorney, visited chiropractor.
What both sides want/rules for each side
wants to introduce evidence of being visited by claims adjuster claims trial ct
erred in not permitting her to explain the answer when asked whether she hired
an attorney prior to visint her doctor. Said the ct abused its discretion and it
should have been admissible for purpose other than to prove existence of liability
insurance
Analysis:
was not testifying to the fact that had liability insurance and therefore was
negligent.
o wanted to testify that a negative experience with s claim adjuster led to
hiring an attorney prior to visiting her chiropractor
o Testimony would have rehabilitated s character after had painted her
as litigious and greedy in hiring an attorney for no apparent reason prior
to visiting her chiropractor
o Trial judge was taking R411 to literally exclude any mention of the word
insurance
Broader intent: prevent jurors from assuming that the existence
of liability insurance means the insurance holder was negligent.
Rule was not intended to bar any discussion of insurance, no
matter how relevant.
Holding(s): Yes:
A rejected immunity offer is significantly more probative than prejudicial and
should be admissible as evidence of innoncence
R410 prohibits admission of evidence of plea negotations against the , not the
government
o An immunity rejection is not the same as a plea agreement rejection.
o Immunity would protect a person from all consequences and most people
would take that opportunity.
may simply prefer to take her chances at trial and gain an
acquittal rather than accepting certain punishment under a plea
agreement
Immunity offers complete protection, so a person conscious of her
guilt would most likely accept such an offer
o Rejection of the opportunity supports inference that had nothing to
exchange for the immunity and was innocent of any knowledge of
wrongdoing.
Very probative to the s theory and not particularly prejudicial to
the govt, which is presenting evidence of s consciousness of
guilt.
Admission of such evidence provides a fair presentation of s case
Applicable Rule of Law: FRE 410
Analysis:
Rule 404(a)(1)
Evidence of a persons character or character trait is not admissible to prove that
on a particular occasion the person acted in accordance with the character or trait
People v. Zackowitz (NY Ct. App 1930)
Facts:
Coppola made insulting remarks to Zackowitzs wife and she told him in general it
was insulting
Zackowitz confronted and threatened him then returned home
Wife shared specifics: Coppola offered 2$ to sleep with him
returned to street where he and 3 others were repairing a car
They got in a fight, Coppola had a wrench, shot and killed Coppola with a
pistol, threw it in the river, he and his wife went back to Manhattan
told police he obtained it at home before he went back to confront Coppola, but
at trial he said he had it on his person the entire evening
People put into evidence that had a radio box, three pistols, and a teargas gun
at his apartment
What both sides want/rules for each side
wants evidence inadmissible b/c designed to show he had a general criminal
disposition
Procedural History: Zackowitz convicted of first degree murder and sentenced to
death
Result: Revd
Issue(s): Unless a criminal has put his general character at issue, is character
evidence admissible at a criminal trial?
Other risks: evidence could confuse and distract the jury (acts not the
focus of present case), mini-trial over the evidence when other side offers
evidence that she didnt do those things
Rule 404 reflects judgment of Congress that as a matter of law the probative
value of propensity evidence is substantially outweighed by the risk it poses of
unfair prejudice, juror confusion, and waste of time.
Step in the chain of inference that is banned is To prove he acted in accordance
with vicious and dangerous character - SEE diagrams pp. 15455
Ways to get around the propensity box:
o If guns were found at scene, prove he was at the crime scene, to prove he
was the shooter
o Offered to prove identity
o Doesnt mean the judge should admit evidence police found at the crime
scene.
o Rule 105 directs trial judge to deliver a limiting instruction to the jury.
but cant ensure jury wont use the acts in a forbidden way
NB 403 Advisory Committees note: one of the factors a judge
should consider in weighing the risk of unfair prejudice is the
probable effectiveness or lack of effectiveness of a limiting
instruction.
o
A black male robbed two white AF police officers at gunpoint and sexually
assaulted the female officer
At PD, both officers IDd Richard Stevens, black male, as their attacker
was charged with the robbery and sexual assault, but first trial ended in
mistrial due to a deadlocked jury.
2nd trial, sought to admit evidence of a similar robbery occurring days after the
first, b/c black victim in the robbery did not identify as attacker
claimed this lent credence to his theory that the first two victims misidentified
him, in part because of his race
Evidence not allowed, jury convicted of robbery and sexual assault
Stevens appealed, contending the reverse 404(b) evidence of other crimes should
have been admissible
Result: revd/remanded
Issue(s): May a introduce other crimes evidence so long as the evidence tends
to negate his guilt and is more probative than prejudicial?
Holding(s): Yes.
Applicable Rule of Law:
Analysis:
A may introduce other crimes evidence so long as the evidence tends to
negate his guilt and is more probative than prejudicial
Reverse 404(b) used to exonerate s
claimed that the victims misidentified him b/c he is black and they are white.
He wanted to introduce further misidentification by offering evidence of the
Mitchell robbery to show the similarities between the robberies and the fact that
Mitchell, another black man, did not believe to be the attacker.
o Similariteis between the crimes are siginificant, and lack of sexual assault
in Mitchell robbery b/c Mitchell male
o Govt argued that he should have to show more than one crime,
misidentification as the perp in a similar crime, or that the other crime
was a signature crime attributable to someone elses crime pattern
These are not requirements for reverse 404(b)
Must simply demonstrate that evidence tends to negate his guilt,
that it survives 403 of probative vs prejudicial value
NO real risk existed that it would become a mini trial
Relatively level on both sides, error in not admitting was not
harmless
Facts:
Took it for maiden voyage and started drilling holes, couldnt drink it, Italian
authorities patrolling coast approached, and his companions made up a story
that pirates overpowered them and began destroying the boat
submitted insurance, he and others were indicted for mail fraud, wire fraud,
perjury
Issue(s): must a court make, prior to admitting past acts introduced to show
motive of knowledge, a preliminary finding that the acts occurred?
Holding(s): No. A ct need not make, prior to admitting past acts introduced to
show motive or knowledge, a preliminary finding that the acts occurred
Applicable Rule of Law: A court need not make, prior to admitting past acts
introduced to show motive or knowledge, a preliminary finding that the acts
occurred.
Analysis:
Fed 404(b) prohibits the use of evidence of prior acts to prove conduct in
conformity therewith, but permits the introduction of such evidence to prove
knowledge, motive, opportunity or the like
argued that the court must preliminarily make the finding that the prior acts
did in fact occur.
o This runs contrary to the structure of rules of evidence
Guardia, a gynecologist, allegedly committed sexual abuse on two patients when his examination
crossed the line.
Holding(s): Yes. Relevant propensity evidence is admissible under FRE 413 if is accused of a sexual
offense, the offered evidence is of s commission of another sexual offense, and the evidence is not
unfairly prejudicial
Analysis:
Evidence here meets all of the threshold requirements to be admissible under Rule 413
Next: does it satisfy Rule 403?
o
Some argue 413 requires automatic admissibility of propensity evidence, while others argue
a lenient Rule 403 test is required.
o
Neither approach is correct, although Rule 413 does indeed favor the admissibility of
propensity evidence.
o
Probative value of propensity evidence depends on similarity of offense, closeness in time,
frequency of prior acts, and intervening events.
o
Here, additional testimony would increase the need for expert witnesses and explanation of
the inappropriateness of each womans exam, which would significantly increase the
information presented to the jury
Facts:
was accused of bribing an official. claimed entrapment b/c official had demanded the money and
threatened to use his official power against him if the money was not paid.
Outcome of the trial depended on whom the jury chose to belive, official or Michelson
Procedural History:
At trial, Michelson introduced reputation evidence of his own good reputation in the community.
Prosecutor asked these witnesses if they had heard that had been arrested for buying stolen goods
20 years earlier. Did you ever hear that on October 11, 1920, the Solomon Michelson was arrested
for receiving stolen goods? none of them had
o
Trial ct. judge allowed the questions over s objection. Jury found him guilty.
o
Judge gave limiting instructions not really clear
Result: affd
Issue(s): When a puts his reputation at issue by calling witnesses to testify as to his good
character, may the prosecution ask those witnesses if they have heard of specific acts of bad conduct
relating to the ?
Holding(s): Yes. When a puts his character at issue by calling witnesses to testify as to his good
character, the prosecution may ask those witnesses if they have heard of specific acts of bad conduct
relating to the .
Applicable Rule of Law: Rule 404(a): general rule that evidence of a persons character is inadmissible
to prove his conduct ,with certain exceptions
405: When character evidence as admissible, proof may be made by testimony as to reputation or in
the form of an opinion.
Analysis:
Asking what acts they have heard of Includes specific acts of misconduct
o
Act need not be identical to the charges raised against . Sufficient that cast doubt on truth,
veracity, or reputation in the community.
Law in this area is convoluted and archaic
The state may introduce specific acts of misconduct where they show an ongoing conspiracy, a
common plan, or establish the s MO. In Hamilton v. State, the Florida SC allowed the to introduce
reputation testimony from her fellow workers, even though she lived in a different part of the city and
they never saw her socially.
Prosecution may not attempt to prove the s bad character, however may introduce evidence as to
his general reputation in the community
o
No specific acts may be testified to by these witnesses summarize what he has heard in
the community, almost entirely hearsay sums up a multitude of trivial details
o
Once has put his reputation in issue the witnesses may be cross-examined as to specific
acts of misconduct
Here, however, s attorney mentioned a 20 year old conviction of a misdemeanor for trading
in counterfeit watch dials
The fact that they were old goes to the weight that the jury wishes to place upon
these specific acts.
Judge has a lot of discretion to limit number of witnesses and control cross examination
o
Have you heard is OK, Do you know not allowed
o
DISSENT: (Rutledge)
Questioning of a reputation witness that is intended to test the standards of the witness should have
been excluded, because it allows the opposing party to convey facts to the jury under the guise of
probing the witnesss standards by simply asking a question, depending on how it is worded and
asked.
The prosecutor can clearly insinuate that the had committed a crime, as was done in this case, and
no instruction to the jury can possibly mitigate the prejudice introduced.
Book notes:
Rules
o
o
o
o
o
404(a)(2)(A) permits criminal defendants to offer proof of pertinent traits of their character
404(a)(2)(B) permits criminal s to offer proof of pertinent traits of an alleged victims
character. most often use when pleading self-defense against a charge of violence
Perrin doctrine: allowed it for a 1983 civil case against state troopers, dead after
2006 amendment
o
Criminal s bear the slightest burden of any litigant general estimate of criminals
character may alone be enough to raise reasonable doubt of guilt
o
Prosecutors propensity argument is weak, but s argument that shes a generally peaceful
person who could never have committed this violent crime has real probative power
Not really the same for negligencecareful people are occasionally careless
o
Character evidence about the accused creates assymetrical risk of unfair prejudice no risk
of unfair prejudice to the government
Also doesnt explain why civil litigants dont have opportunity to present evidence
Distinguishing proof of character under Rules 413-415
o
Rule 405(a)s requirement that proof be by reputation or opinion does not apply to 413-415
But may help prove his fear was reasonable place d in reasonable fear
Only applies when existence of a character trait, not conduct in accordance with
the trait, is the thing to be proved.
Facts:
was auto mechanic, sued Virginia Chemicals, Inc. for injuries sustained when a can of refrigerant
they produced exploded while he was using it to service the air conditioning system in a car
o
15 year mechanic, 3 years at Virginia, emptied system, removed old compressor, installed
new one, then charge the unit
o
First 2 cans fine, third can wanted to accelerate flow of refrigerant, put it in warm tap water,
put 4th can in as well, rapid increase in pressure, can exploded
Warnings said 130 degrees maximum safe temperature
Only eyewitness was him
Procedural History:
Trial judge refused to allow to introduce evidence that had previously used an immersion heating
coal to heat cans of refrigerant so it would flow more easily (ignoring label warnings on the can
Jury trial on issue of liability only, verdict in favor of
Result: modified by reversing so much of the order as affd the award of judgment to the
Issue(s): Where the issue involves proof of a deliberate and repetitive practice, may
evidence of habit or regular usage be admitted?
Analysis:
Statement that evidence of habit or regular usage is never admissible to establish negligence is too
broad
Conduct which involves other persons or independently controlled instrumentalities cannot produce a
regular usage because of the likely variation of the circs. in which such conduct will be indulged
However, proof of a repetitive practice by one in complete control of the circs is another matter and
should be admissible b/c so highly probative
o
Here, 100s of a/c, 1000s of cans of freon
must be able to show on voir dire a sufficient number of instances of the conduct in question to
justify introduction of habit or regular usage (if witness only was going to testify to 1 time, wouldnt
be admissible)
Since days of common law, habit evidence has generally been admissible to prove conformity on
specified occasions
However, where negligence is an issue, many cts have resisted allowing such evidence of specific acts
of carelessness or carefulness to create an inference that such conduct was repeated when like
circumstances were again presented.
Notes:
Predictive conduct: evidence of habit is harder to overweigh than other propensity evidence
o
We can predict with confidence how person will perform act next time
Lack of volition one sign of qualification of habit, but true touchstone is regularity (predictability)
Risk jury will punish bad habits less?
o
Rare that someone invariably acts badly
o
Habitually violent? Violence may be very invariable harder to identify someome who almost
always lashes out
o
Advisory Committee says regular drinking does not qualify under R 406
*but regular heavy drinking can spark contempt and moral condemnation
No clear line separating habits from character-based propensities regulated by Rule 404.
o
Lots of space between socially despised and innocuous behavior
Rule 406 does allow proof of habit by specific acts
If trial ct found he used the immersion coil, would have permited proposed witness to testify that he
had seen Halloran on previous occasions using an immersion coil to heat Freon from evidence of
habit jury can infer that Halloran used an immersion coil on day can exploded
A. Modes of Impeachment
Impeachment: casting doubt on the witnesss accuracy or trustworthiness
As long as evidence is relevant under Rule 401 and can survive a 403 weighing test
Evidence of bias: describes the relationship between party and witness which
might lead the witness to slant testimony in favor of or against a party
Corruption is related,
Facts:
2 DC police officers directed crowd to disperse, everyone except Whitmore did so.
Russell chased Whitmore, noticed that he was holding his right hand close to his body at waist and
the right side pocket of his jacket
Whitomre got away, Soto saw him, chased him, also noticed Whitmores right hand holding right side
of jacket
o
Soto saw Whitmore throw a gun towards an apartment building next to an alley whitmore
ran into, then apprehended him.
when the other officer caught up, Soto found a gun in a window well of a nearby apartment building.
o
Gun seemed to have been thrown against a building, had masonry dust and scuffs on it
Nothing found in Whitmores right pocket, cocaine base found in his left
argued that Soto planted the gun
Procedural History:
Dist. ct refused to allow character witness testimony and cross examination of Soto
Without any other evidence for his defense, was convicted for illegal firearm possession and drug
possession
Result: revd/remanded but drug conviction stays
Issue(s):
May a party attack the credibility of a witness through reputation evidence of his character for
truthfulness if the character witness is qualified by having an acquaintance with the witness, his
community, and the circles in which he has moved?
May a party attack the credibility of a witness by cross on specific instances of his past conduct?
Analysis:
FRE 608(a) permits reputation evidence.
o
But cherkis and Edmonds had no direct contact with Soto or his community for some time
and the lower court did not abuse its discretion in excluding their testimony as being too
remote from the time of trial
o
TC also did not abuse its discretion in excluding Coopers testimony because it relied on
Coopers conversations with only a few other criminal defense counsels, a subset of the
proposed court community and the foundation was therefore weak
Opinion evidence is also governed by FRE 608(B)
o
Even though the foundational requirement for it is easier to meet than that for reputation
evidence, the DC did not abuse its discretion in excluding Coopers and Edmonds opinions,
b/c neither opinion had a reasonable basis, as far as the jury is concerned.
Case is very fact based, but approach to reputation /opinion evidence, standard is
higher for reputation evidence.
To be able to testify authoritatively about another persons reputation, have to know not only about
the person but also who he consorts with and what those people think of the person. Much more than
opinion even though form of opinion evidence.
Facts:
Procedural History:
filed a motion to suppress
Result: kidnapping stays out, the rest come in
Issue(s): Whether s 4 prior felony convictions can come in when some were older
than 10 years and may unfairly prejudice against
Applicable Rule of Law: Probative value of evidence offered under 609 should be
discerned from:
1. the nature of the crime,
2. the time of conviction and the witnesss subsequent history,
3. the similarity between the past crime and the charged crime,
4. the importance of s testimony,
5. and centrality of credibility issue.
(factors from DC Circuit and judge Berger)
Analysis:
609b analysis: none of the 4 convictions requires application of 609b
o
Convictions are considered from the date of conviction or the date of release from
incarceration
o
None of the crimes is over 10 years old
argument that it was for parole violations, not feloniesno precedent but
Ct says that reconfinement for parole violation is confinement imposed for
the original conviction, so use the release date from 2nd confinement.
2nd release date was within 10 years
609a analysis:
o
Formula (see ROL) from DC Circuit and then-Judge Burger in Gordon v. US
o
1. Nature of crimes is violent action violence has no bearing on honesty, so nature is a
factor against admitting them for impeachment
o
2. s conduct less than would be expected of a rehabilitated individual
o
3. Judge Burger when multiple convictions, strong reasons for excluding because invites
jury to engage in propensity reasoning, have to show discretion and limit to a single
conviction and then only when the circumstances indicate strong reasons for disclosure, and
where the conviction directly relates to veracity.
ex: withhold that sexual offense against a minor
In general, though, trial cts permit jurors to learn the nature of the past crime different
crimes have different probative power in showing untruthful character acts of integrity vs.
acts of violence, no blanket rule
Rule 609(a)(2)
o
Carves out a class of convictions particularly probative and says they must be admitted
Conference Committee report: says this is not within discretion of trial court
Escapes 403 weighing or any other weighing test unless 609 b/c/d applies
o
b/c all evidence admitted, important question is which convictions the rule covers
Crimes in which the ultimate criminal act was itself an act of deceit
609(a)(2): crimes involving deceit are especially probative of ones propensity to lie and are
therefore made automatically admissible
o
609(b): Older crimes are less probative of present character and are so less readily
admitted
o
609(c): a persons successful rehabilitation diminishes probativeness, finding of innocence
would reduce probativeness to 0
o
609(d): if individual juvenile at time of past offense, greater chance her character has
changed and perhaps improved.
Some of subjsections reflect judgment of varying risks of unfair prejudice posed by evidence of past
convictions
Extrinsic Evidence
Common-law principle: extrinsic evidence will not be admitted on a collateral matter
regardless of the witnesss answer, the lawyer may present NO OTHER EVIDENCE
regarding the act.
o
608(b) litigant may cross examine a witness about specific instances of conduct that bear on
character for truthfulness
except for criminal conviction under Rule 608, extrinsic evidence is not admissible to
prove specific instances of a witnesss conduct
Was Witness Bs testimony properly admitted to testify that Witness A and and
were members of secret organization whose members were supposed to lie, steal,
or kill on one anothers behalf?
Admissibility of ATF agents testimony to testify had told him he committed a knife
robbery in 1977, when denied robbery by knife in 1977
See Book for problems and notes on old law: suggestion that we more readily infer
assent in the practiced Messalina, in loose attire, than in the reserved and virtuous
Lucretia
Facts:
12 y/o victim accused Smith () of attempting to molest her over a number of years
At trial, sought to introduce evidence through witness testimony that the victim had previously
made false allegations of molestation against her cousin
wants to admit:
o
victims mother, who testified that victim made allegations of molestation against her cousin,
when asked whether victim later retracted those allegations, witness stated not to me, no
and said no reason to believe the allegations were false
o
Victim testimony who claimed accusations were true and denied retracting them
o
Younger brother of cousin who testified that they played together on a regular basis, that
victim said T.S. touched her, that T.S. denied it, and she returned and said she was just
joking
Procedural History:
Trial judge conducted hearing to determine if the evidence admissible under La. 412, which prohibits
admission of evidence of most instances of the victims sexual past.
o
T.J. concluded that victim had not made prior false allegations, thus evidence of her past
sexual misconduct was inadmissible under Rule 412.
o
Using Allen decision: has right to cross examine victim and presnt evidence if the court
determines there are prior false accusations of sexual molestation
Holding(s): No, prior false allegations of sexual assault do not constitute past
sexual behavior for purposes of the rape shield statute and are therefore admissible
evidence
Analysis:
A reasonable juror could find that the prior allegation is false
Question is then whether prior false allegation constitutes past sexual behavior which is protected
from disclosure by Rule 412. It does not, and Rule 412 hearing is unnecessary
o
Allen case: was charged with molesting 14 y/o niece, previously alleged that she was
molested by grandfather and her father avoided the house b/c afraid of being accused, Also
wanted to intro evidence that victim accused of molesting younger males
S.C.t remanded the case and said if false allegations found, allowed to crossexamine that victim and present evidence regarding same at trial
o
412 inapplicable to evidence that victim had previously accused another male of molesting
her and then quickly retracting those accusations: not evidence of past sexual behavior of
the victim but impeachment evidence used to attack the victims credibilty
Issue here was credibility of the witness; therefore was prejudiced by the error in excluding the
proffered evidence.
Note: When essence of the case is credibility of the victim, a prior false allegation
may certainly be probative. Consider prejudice to victim(?) in having to address a
she lied before so she must be lying now argument
Procedural History:
Trial court granted prosecutors motion to keep all evidence cohabitation from the jury
When tried to cross-examine complainant about living arrangements, after claimed during direct
that she was living with her mother, trial court sustained prosecutors objection
Harris acquitted as principal or accomplice, Olden acquitted of kidnapping and rape, but jury convicted
Olden alone of forcible sodomy, he was sentenced to 10 yrs
Petitioner appealed, asserting trial cts refusal to allow him to impeach the complainants testimony by
introducing evidence supporting motive to lie deprived him of his 6th amendment right to confront
witnesses against him.
Ky Ct. App upheld conviction
Result: Revd remanded
Holding(s): Yes
Analysis:
Cross-examination is an integral right under the Confrontation Clause
Any subject matter that tends to demonstrate an improper motive or bias by the witness is a proper
subject of cross-examination
o
Only limit on this is that the court has discretion to limit repetitive or unduly harassing
interrogation
o
Cross-examination on matters only marginally relevant is not a right.
Here, however, subject of the cross-examination was a possible motive for Matthews
to lie, and this was central to the case against .
Book Notes:
Both Olden and precedent (Davis v. Alaska) protect s 6th amendment right to cross-examine an
accuser to show a prototypical form of bias on the part of the witness
o
Davis: charged with burglary had the right to confront the prosecutions chief eyewitness
with questions about the witnesss probationary status. Witness on probation for burglary so
had interest in denying his own guilt of the crime he pinned on Davis
Bias-based impeachment = motive to lie in this case, not general propensity to lie
o
No precedent for whether s right during cross-examination to make general, characterbased attack on prosecution witnesss credibility.
o
Question arises in states with rape shield laws that bar inquiry into a victims past allegedly
false complaints of sexual assault.
Usually rules would permit to cross accuser about past false complaints and argue
that past lies show general propensity to lie about rape
Federal courts have not reached a consensus about s right on cross to expose a victims past false
complaints
o
Not allowed:
Boggs v. Collins (6th Cir. 2000): trial ct judge barred general propensity to lie about
rape inquiry
Quoted Stewarts concurrence that Davis neither holds nor suggests that
the Constitution confers a right in every case to impeach the general
credibility of a witness through cross-examination
7th Cir. Posner dictum: Confrontation Clause does not protect attacks on a witnesss
character for truthfulness: probative value of evidence that a person has lied in the
past to show she is lying now is questionable, in general, since very few people go
through life without ever ylying
Fowler v. Sacramento Cnty Sheriffs Dept. (9th Cir. 2005): Whether s proffered
cross-examination about the victims past complaints of sexual molestation
sufficiently bore upon her reliability or credibility such that a jury might reasonably
have questioned it
forbidden cross could have prompted jury to doubt the victims story
o
Straddle the line between special constitutional status to bias-based cross examination and
hose that extend 6th amendment protection to character-based attacks too
White v. Coplan (1st Cir): White sought to question his two accusers about charges
of sexual assault they had allegedly falsely made in the past
Ct said it was dealing with more potent than general credibility evidence: if the
prior accusations are similar enough to the present ones and shown to be false, a
motive can e inferred and from it a plausible doubt or disbelief as to the witnesss
present testimony
o
Even 6th Cir. has retreated from holding that CC does not protect cross targeting a witnesss
character for truthfulness
Stephens v. Miller
Facts: Lonnie Stephens and victim were at her trailer with her sister, brother in
law, nephew asleep in other room
Tales diverge on what happened next
Victim says she awoke to find in her trailer and that he attempted to sexually assault her
claims that he and victim engaged in consensual sex, that he said something that angered her, and
that she falsely accused him of rape in retaliation
Procedural History:
At trial, sought to introduce evidence that he angered victim by saying that a mutual acquaintance
had told him that victim liked doing it doggy fashion and something about switching partners
Trial judge excluded the evidence under the Indiana Rape Shield Statute (42)
Jury convicted of attempted rape
Appeals cts affirmed the convictions
Stephens denied writ of habeas corpous by district court
Appealed o 7th. Cir.
Result: affd
Issue(s): Must a s implicit right to testify in his own defense yield to certain
procedural and evidentiary rules?
Holding(s): Yes.
Analysis:
s testimony would have done nothing to aid his testimony, but serve only to humiliate the victim.
was otherwise allowed to provide his entire version of events and the exclusion was a minor
imposition on s right to testify.
s res gestae argument: nonsensical because res gestae not able to be defined for purposes of the
Constitution and federal law.
DISSENT:
Defense was that made such an offensive statement to victim that she fabricated a rape charge in
retaliation.
Arguable that application of the statute to prevent the jury from hearing the content of that
statement unconstitutionally denied his right to present a complete defense
Rape shiled rules are laudable and necessary, but Stephens had to counter a detailed story from
victim with a story missing the essential details.
Exception to the rape shield rule created by allowing s testimony would be a narrow one and would
not frustrated the purpose of the statute
o