civil = plaintiff,
defendant
crim= victim,
defendant,
prosecution
ANY PARTY can
attack a witness's
credibility
KEY:
FRE- green
RELEVANT CASE -blue
INADMISSIBLE - red
REASONING - pink
NEW CATEGORY - yellow
POLICY CONSIDERATION -purple
To see if the evidence
needs to be/should
be entered:
General
Relevance
YES
INADMISSIBLE
FRE 607
FRE 406 Routine
Practice
habit; robotic, no
moral component
Prosecutor can rebut
FRE 401: Materiality
(a) probative; AND
(b) relevant
NO
Michaelson: D is able to
offer ev. of their pertinent trait
of good character but
prosecution can then cx
Under, 412(b)(2) & 412(b)(2)
if being used to prove
someone else was source of
assault if ordered to prove
consent
[don't want exclusion to
violate any due process
exception
rights]
FRE 402 Exceptions:
constitution, fed.
statute, SCOTUS
decision says its
inadmissible
does an exception
apply?
FRE 412 sex offense
& victim's sexual
predispo. or behavior
- cannot use a victim's
past sexual behavior
against them.
NO 402 exception?
IF YES
INADMISSIBLE
IF ONE OF THESE
FRE 403 Balancing
Test
ensure there is no:
-Unfair Prejudice
-Confusing the issues
-Misleading the jury
-undue delay
-wasting time
-needless cumulative
evidence
Myers - Evidence of Flight
Evidence of flight is
admissible if evidence can
support these inferences:
(1) D's behavior to flight
(2) flight from consciousness of
guilt
(3) from consciousness of guilt to
cons. of guilt concerning the crime
charged
(4) from conc. of guilt concerning
the crime to actual guilt of crime
charged
FRE 404(a)(2)(A)
D can offer ev. of their
own pertinent trait to
crime charged
THEN, do balancing
FRE 608
IMPEACHMENT
FRE 608(b): Impeachment
by specific instances or
conduct. Allows on cx. Can
inquire into specific insances
or conduct (re. charac/ for
truthfullness)
ZACKOWITZ Analysis
ev. that shows D has a propensity
to commit crime is character ev., &
inadmissible to prove D's guilt.
ensures that a jury is not unfairly
prejudiced
403 Analysis:
- strength of 404(b) ev.
- importance of 404(b) ev.
- alternatives to 404(b) ev.?
- closeness in time to 404(b) ev
- similarity in/to 404(b) ev.
- effectiveness of limiting
instructions?
TRENKLER TEST
1. evidence that has
special relevance
INDEPENDENT OF
SHOWING
CRIMINAL propensity
2. 403 Analysis:
probative value ⊁
unfair prejudice
FRE 404(b) Crimes,
Wrongs, & Other Acts
b(1) prohibited uses
b(2) permitted uses
proof of: knowledge,
motive, identity
FRE 613: Impeachment by
Witness's prior statement
(a) showing or disclosing the
statement during examination -> rule of procedure- only have
to show other party's attorney
common is closing argument
(b) extrinsic of prior
inconsistent statement ONLY
admissible if witness can
explain OR deny statement &
adverse party can examine W.
--> it is okay to introduce
extrinsi evidence IF you sllow
W to go on stand and explain
why it might contradict [if
objection, 403 test]
TRENKLER - crime
was so unique to
Trenkler that it was
kind of his signature
(bomb was unique)
[3. avoid deterring offers of assistance]
FRE 409 Medical & Similar
Expenses; Offers to pay.
Offer(s) to pay medical, hospital, or
similar expenses is NOT admissible as
evidence to prove liability.
Don't want t deter offers to help people
w/ med expenses (its good
public/social policy)
[1.interest in mitigating damages]
[4. plea deals = good; don't want to discourage]
FRE 410 Plea Deals & Discussions
410 bars plea discussions for
admission into evidence
[2. safe space for parties]
FRE 408 Compromise and Offer
Prohibited uses: to prove/disprove the validity of a claim or
to impeach by prior inconsistent statement contradiction
a(1) cannot be used to offer consideration to try and
compromise the claim
a(2) cannot be used against conduct/statements made
during compromise negotiations except by an officer in a
criminal case (what D says after Miranda during arrest)
UNLESS,
as in 408(b), may be admissible for another
purpose like:
- witness bias/prejudice
- undie delay
- prove obstruction of justice
Biaggi
410 may be okay
when D is introducing
to prove himself
innocent
[5. encourage having insurance]
FRE 411 Liability Insurance
Having or not having liability insurance
is not permissible to show as evidence
for negligence or wrongful conduct
evidence of having or
not having insurance may be
admissible to prove witness
bias, agency, ownership,
control.
relationships
IMPEACHING WITH
BIAS
relationship b/w party
and witness: use
common sense to
infer tat this may
bring up a credibility
issue
Sensory attacks
romantic relationship?
getting paid?
friends?
Attack related to
ability or inability to
reserve or obscure
what they're testifying
about, or
remember to
accurately relay the
info
intoxication?
dark night?
poor memory?
not wearing glasses,
etc
10 years= long time,
people change
crime punishable
by death or
imprisonment more
than 1 yr
403 analysis
Consider FRE 609
time limit
FRE 609(b)(2): 10 year Limit since
conviction or release from confinement
Assume prejudice (high standard), party
wanting to admit MUST show substantial
outweighing of prejudice [reverse 403,
almost never]
IMPEACHMENT with
no FRE
"certain purpose" includes (but not limited to):
1. interest in mitigating damages
2. safe space for the parties
3. avoid deterring offers of assistance
4. don't want to discourage plea deals
5. encourage having insurance
Witness is NOT D in
crim or civ case
FRE 609(a)(2): Regardless of
punishment, if
truthfulness/dishonesty/false
statement is an element of a
crime of dishonesty --> perjury,
embezzlement
more broad
than 608(b)
impeaching W
Old Chief - Effect of
Stipulations
A 401 pass doesn't mean
an automatic 403
pass... Evidence is not
admissible if its unfairly
prejudicial effect outweighs
its probative value.
FRE 407 Subsequent Remedial Measures
When measures are taken that would have made
an earlier injury or harm less likely to occur,
evidence ab this is not admissible to prove:
- Negligence
- Culpable conduct
- Product or design defect
- Need for a warning or instruction
**but evidence may be admitted for another purpose
Impeachment a
witness
W IS D in crim case
Other ways around the
PROPENSITY BOX = res
gestae, absence of mistake
(this undermines intent)
ZACKOWITZ
-What was state of
mind @ moment of
homicide?
- TRIP AROUND
PROPENSITY BOX
-Must show that it's
not furthering
propensity of an action
FRE 404(A) Character Evidence
a(1) char. ev. not admissible to
prove person acted in accordance
w/ a char. or trait
a(2) exceptions for a Defendant or
Victim in a crim case
Some social benefits to
excluding evidence for
a certain purpose even
if its relevant
is it crim or civ?
FRE 609 Impeachment by Evidence of Crim conviction
- 609(A)(1)(a) crime punishable by death or
imprisonment for more than one year ... civ or crim
- 609(a)(1)(B) evidence must be admitted in crim case
where the witness is a defendant
if exception, go to
405(a)
don't have to prove
relationship was good
or bad, hint at it and
let jury infer
SPECIALIZED
RELEVANCE
RULES 407-411:
HOWEVER, can only
support witness'
character AFTER its
been attacked or
supported by testimony
about rep or opinion
trait offered by D HABIT evidence
CHARACTER EVIDENCE
Subject to 403 balancing:
(a): ex. "I think..." or "known at work"
(b): ex. only applies when existence
of character trait is what's in
question, NOT conduct in
accordance with that trait.
(entrapment is a common ex.)
Myers & Flight
Must be RELEVANT
to the trait that the W
testified about
FRE 413: similar
crimes in sexual
assaults; 414 child m.
FRE 405 Methods of Proving
Character
(a) by reputation or opinion
(b) by specific instances of conduct
FRE 105: Limiting Factors
if evidence is admissible
against one party for X, but
not against another party for
Y, court on timely request,
can restrict evidence to
proper scope
FRE 404(a)(3):
witness' character
can be brought for
impeachment
purposes
Idea = if W has bad
faith character for
truthfulness, more
likely to lie on stand.
crime punishable
by death or
imprisonment of more
than one year
assume its
prejudicial. Does
probative value
outweigh
prejudice?