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Temple University School of Law
Ramji-Nogales, Jaya

Ramji-Nogales – Evidence, Fall 2012

I. Relevance

A. Preliminary Questions:

1. Determination of Admissibility – FRE 104(a): a judge decides whether or not evidence is admissible

2. Conditional relevance – FRE 104(b): missing link that is not common knowledge: jury could find fact by a preponderance of the evidence.

Ø Evidence → Condition Fact → Conclusion

B. Probativeness and Materiality – FRE 401:

1. Probativeness – 401(a) (evidence → proposition): the evidence need only have any tendency to make a fact (or proposition) of consequence to the lawsuit more probable or less probable.

1. Societal expectation: e.g. reaction atypical based on societal expectations; social stereotypes might hurt client, so address w/ an expert.

2. Materiality – 401(b) (proposition → issues in case): the fact or proposition supported by the evidence needs to be material to an issue in the case.

1. Credibility of the witness: the credibility of a witness is always material and central to an issue in the case (e.g., absence of the gun but the presence of $40K is material)

2. Elements of the crime: need to know the elements of the crime otherwise evidence can be knocked out as immaterial

C. Balancing Test for Relevance (PV vs. UP) – FRE 403: every piece of evidence is prejudicial, since this just means making the case weaker or stronger; concern about the jury vs. judicial economy:

1. Determine the probative value (relevant + probative worth)

2. Determine the risk of unfair prejudice or other enumerated dangers (unfair prejudice, confusing the issues, misleading the jury, undue delay, waste of time, needlessly present cumulative evidence)

3. Balance probative value against the dangers

1. Dangers must substantially outweigh probative value

2. May: exclusion is discretionary, but it is a liberal standard

D. Limiting Unfair Prejudice: jury instructions can be effective in limiting the prejudicial impact of certain evidence, but must consider what the limiting instruction would sound like and how effective would it be:

1. Present evidence in a less prejudicial form

2. Alternative forms of proof

3. Stipulation

4. Cautionary jury instruction

II. Character Evidence

A. Character Evidence and Propensity – FRE 404(a): general rule prohibits proof about a person’s character to show that the person acted in conformity with that character (i.e., “once a thief always a thief”).

1. Bans character-propensity evidence: this person has stolen before → she is likely to steal again → she stole in this case

The D might object to the introduction of this evidence under FRE 404. The D could argue that the purpose of introducing this evidence is pure propensity reasoning; the prosecutor is using the evidence to show that a person who X is more likely to Y – character for Z.

B. Civil Cases – Generally Not Admissible: character evidence to prove that the person acted in conformity is generally not admissible in civil cases due to the slight probative value of character being outweighed by the danger of prejudice, distraction of the jury from the main issues, and waste of time concerns.

1. Character-at-issue exception: when proving a person’s character is an essential element of a claim or defense as a matter of law, character evidence is admissible is such a circumstance.

2. Any evidence is admissible – FRE 405(b): in character-at-issue cases, any type of evidence (reputation, opinion, and specific acts) is admissible to prove character when it is directly at issue.

a. E.g., slander, defamation – part of the cause of action

Character evidence offered to prove that a person acted in conformity on a particular occasion is generally inadmissible in civil cases.

C. Accused Criminal Defendant Exception: in a criminal case, a D may first introduce substantive character evidence, relevant to the charge or past action against D, if it relates to the:

1. Defendant’s pertinent character trait: under FRE 404(a)(2)(A), a defendant may offer evidence of the pertinent character trait

2. Victim’s pertinent character trait:

a. Prosecution’s rebuttal option (narrow exception): once the defendant has introduced evidence of an alleged victim’s bad character trait, the prosecutor may counter with reputation or opinion evidence of

i. The victim’s good character

ii. D’s bad character for same trait: show that defendant shares victim’s trait

b. Homicide/first aggressor – FRE 404(a)(2): in a homicide case, if the D pleads self-defense, evidence that the victim was the first aggressor (e.g., witness testimony) “opens the door” to evidence of the victim’s character for peacefulness.

3. Character evidence – FRE 403 risks:

a. Past acts may way too heavily on current decision

Ø Concern that the jury may convict D based on other crimes, but the D is not on trial for other acts.

Ø Congress has stated as a matter of law that if it falls under 404(a)(1), then unfair prejudice always outweighs probative value

b. May make decision on improper grounds

c. Waste of time

d. Confuse the jury

D. Routes around the propensity box – Rule 404(b): by creating a smaller pool (criminal history using specialized skills), a crime, wrong or other act, may be admissible – at the judge’s discretion under (b)(2) – such as (non-exhaustive)

1. Knowledge:

2. Motive: the commission of a prior crime may be evidence of a motive to commit the crime for which the defendant is accused (e.g., conductor blew past stops b/c in a rush home this particular day; wanted felon acted w/ deadly force due to bench warrant; Drew Peterson?)

3. Identity: evidence that connects this D to the crime is admissible (e.g., theft of a gun used in a later crime), but not all character traits are negative (e.g., bicycle-racing equipment w/ cocaine)

4. Signature Crimes: evidence that the accused committed prior criminal acts so distinctive may be introduced to prove that he committed the act in question; “special relevance” (Trenkler) because it couldn’t be anyone else’s crime (i.e., “that’s the same thief”)

a. Signature Crime Characteristics:

Ø Highly distinctive quality or

Ø Conjunction of several identifying characteristics

Ø Single prosaic commonality is insufficient

b. Signature Crime Principles:

Ø Identity must be in issue

Ø Needs relatively strong evidence that the defendant committed the first crime

c. Copy-cat counterargument: defense counsel might argue copy-cat crime defense

E. Admissibility analysis for 404(b):

1. Around the box purpose: start with around-the-box purpose: KIPPOMIA

2. Relevance – FRE 401: – is the evidence material? Probative?

a. Probative worth for 404(b): special 403 test for 404(b) evidence includes (illustrative, not exhaustive):

Ø Reliability:

Ø Similarity between acts:

Ø Proximity of acts (temporal, geographic):

Ø Theory of admissibility: around the box purpose

Ø Availability of other evidence (compare w/ other evidence):

3. Probative Value – FRE 403 – balance probative value against unfair prejudice

a. Unfair prejudice for 404(b): risk that the jury will ignore limiting instructions and make prohibited character inference.

Ø Limiting Instruction: when you see 404(b) use of evidence, think about limiting instructions (i.e., need a clear explanation of how the evidence can and can’t be used)

The prosecutor could argue that this evidence should be admitted under FRE 404(b) for a non-propensity purpose if the act is similar enough to the act in question. After establishing that the evidence is material under 401, the judge would then have to apply the special 403 test used in 404(b) cases.

F. Reverse 404(b) admissibility test: Reverse 404(b) evidence is evidence that the defendant presents of a similar crime by a different person to the defendant’s innocence of the charged offense.

1. Evidence has a tendency to negate guilt

2. Balance probative value against waste of time and confusion of the issues

G. Habit or Routine Practice – FRE 406: habit (person) or routine practice (organization) to prove a particular action

1. Habit or routine practice test:

a. Habit: invariably regular response to repeated specific situation which leads to predictable and predictive conduct

b. Elements (go through each one):

Ø Specificity

Ø Repetition

Ø Duration

Ø Semi-Automatic (medical doctor prescribing drugs not semi-automatic)

Ø Relatively innocuous

c. No corroboration: no corroboration or eyewitness needed

d. Unfair prejudice: still need to do FRE 403 balancing test after FRE 406

2. Alternative route to admissibility: attempt to admit the evidence based on non-character impeachment through contradiction – prosecution witness = prescribing nurse

H. Similar Crimes – Sexual assault – FRE 413: Under FRE 413(a), evidence of the defendant’s past other sexual assault is admissible in criminal sexu

ou lying now?”

b. Impeachment vs. Substantive: substantive character evidence must be about the D and the victim only, and relevant to the charge or past action, impeachment use of character evidence may be used in civil cases about any witness, and relevant to present credibility of witness

C. Non-Character Impeachment Methods:

1. Evidence of bias, motive, or interest: (i.e., testimony of bloods gang member)

2. Sensory or mental defects: (i.e., testimony of bartender that key witness who gets drunk; D counters that character evidence, or unfair prejudice – but going against witness’ credibility different than D’s)

a. Perceptive disabilities: deficiencies of the senses that would have substantially impaired the witness’ ability to perceive the facts to which he is testifying

Ø E.g., that he was sleepy, or drunk/intoxicated

b. Lack of memory: a showing that the witness has poor memory of events by asking about other related matters on cross-examination, casting doubt on the witness’ recollection of the events to which he is testifying about.

c. Mental disorders

3. Contradiction: impeachment by evidence of a contradiction (i.e., evidence of timesheet contradicting testimony)

a. Specific acts: prosecution can argue that specific acts should be admitted as non-character impeachment (e.g., D presents character evidence that he would never harm children)

D. Impeachment of Own Witness – FRE 607: any party, including the party that called the witness, may attack the witness’s credibility.

E. Character Impeachment (FRE 608): character for truthfulness only

1. Reputation or Opinion – FRE 608(a) (ON DIRECT): Rule 608(a) permits a party to offer evidence of a witness’s character for truthfulness or untruthfulness in the form of opinion or reputation on direct examination. This evidence cannot pertain to character for peacefulness, temperance, or anything else.

a. Testified: has the person testified, thus becoming a witness?

i. Defense: can’t be impeached if D doesn’t take the stand

b. Truthfulness Attack: has the truthfulness of the witness’s character for truthfulness been attacked?

i. A witness’ testimony cannot be rehabilitated unless it has already been attacked (i.e., cross-examination about specific attacks of untruthfulness)

ii. Just impeachment as a character trait because otherwise would be a waste of time

2. Specific Instances – FRE 608(b) (ONLY ON CROSS): Past conduct of a witness that did not result in a conviction may be asked about on cross-examination if it is relevant to the character trait of truthfulness. However, past conduct of extrinsic evidence is not admissible, so the prosecutor must “take the witness’ answer.”

a. Truthfulness: is the specific instance(s) of conduct probative of truthfulness or untruthfulness? (i.e., cheating on tax returns is clearly probative of truthfulness, but is stealing from a store – closer call = argue both sides)

b. Cross-examination: is the witness on cross-examination? Testing the knowledge of the witness vs. establishing that the act happened (405(a))

i. Witness B: I know Witness A to be truthful

ii. Opposing counsel: do you know that Witness A lied about X on Y date?

c. Intrinsic: is the evidence intrinsic? Extrinsic evidence not admissible unless FRE 609

i. Extrinsic evidence = anything other than the witness’s words – can’t ask

1. On cross-examination, the prosecutor is stuck with what the witness says (otherwise a risk of a waste of time: trust witness to be truthful)

D might argue that this evidence of prior conduct should not be admitted unless the D takes the stand and he is on cross-examination.