January 31
CHAPTER 20: Using Criminal Convictions to Impeach Witnesses
i. Impeach by Criminal Conviction (Rule 609)
1. Rule 609 permits extrinsic evidence of certain criminal convictions
to prove character for untruthfulness. In this order:
a. Pardons
b. Juvenile adjudications
c. > 10 yrs old (Conviction or Release from Prison)
i. Requires Reverse 403
d. Crime of dishonesty/falsity
i. Prejudice only
e. All other felonies (distinguish if offered against criminal
def v. any other witness)
Type of Conviction
Misdemeanor that did not
involve dishonest act or false
statement
Crime pardoned or annulled
based on finding of innocence
Crime for which witness
obtained pardon, annulment, or
certificate of rehabilitation,
without finding of innocence,
but has no subsequent felony
convictions
Crime Committed as a juvenile
Crime for which witness was
released from confinement (or
convicted, if no confinement)
more than ten years ago
Felony that did not involve
dishonest act or false statement
Felony or misdemeanor
involving a dishonest act or false
statement that (a) was committed
as adult and (b) for which
confinement ended (or
conviction occurred), ten years
ago or less
Type of Witness
Any
Outcome
Automatically EXCLUDE all
of these convictions: No
balancing test applies.
Any
Any
Defendant in Criminal Case
Anyone Other than the
Defendant in a Criminal Case
Any
Defendant in Criminal Case
Admit in a criminal case IF
conviction would be admissible
against an adult AND the
evidence is necessary to fairly
determine guilt or innocence
Exclude unless probative value
substantially outweighs
prejudicial effect
Admit if probative value outweighs prejudicial effect to that
defendant
Anyone other than the Defendant Admit unless 403 (unfair
in a Criminal Case
prejudice substantially
outweighs probative value)
dictates exclusion
Any
Automatically ADMIT. No
balancing test – not even Rule
403 - applies
When Prejudicial Effect…
Is substantially less than probative value
Is somewhat less than probative value
Equals probative value
Somewhat outweighs probative value
Substantially outweighs probative value
Rule 403
Admits
Admits
Admits
Admits
Excludes
Rule 609(a)(1)(B)
Admits
Admits
Excludes
Excludes
Excludes
Rule 609(b) [10+ yrs]
Admits
Excludes
Excludes
Excludes
Excludes
b. Refreshing a Witness’s Memory (Rule 612)
i. A person who generally remembers – refresh their recollection if forgets.
1. MUST TAKE AWAY DOCUMENT
2. Opposing party can introduce as evidence for credibility of
witness.
Rule 612: Refreshing Memory
Need Arises When: Witness cannot recall details
of an event or mother matter of which she once
had personal knowledge
What Witness Does: Looks at evidence (usually
a writing) to jog memory, then testifies orally
without referring further to evidence
What Type of Evidence: Any writing or other
evidence that will help witness remember; the
witness need not have created or adopted the
material
Who May Introduce Evidence Used to Refresh:
Only adverse party (i.e., party that did not call
witness)
Relationship to Hearsay: Witness testifies
directly from memory after refreshment, so there
is no hearsay issue. If adverse party introduces
writing into evidence, it is admissible only on the
issue of credibility. For the jury to consider the
writing for the truth of the matter asserted, it must
fall within a hearsay exception.
Rule 803(5): Recorded Recollection
Need Arises When: Witness cannot recall details
of an event or other matter of which she once had
personal knowledge
What Witness Does: Reads into record
information from a document or other record
What Type of Document or Other Record: One
that the witness “made or adopted” when the
matter was “fresh” in the witness’s memory.
Record must correctly reflect witness’s personal
knowledge at time it was recorded.
Who May Introduce Recorded Recollection:
Only adverse party (i.e., party that did not call
witness)
Relationship to Hearsay: Statements contained
in the record are admitted as an exception to the
hearsay rule. The jury may consider the content of
the document or other record, as read into the trial
record by the witness, for the truth of the matters
asserted.
February 1
CHAPTER 21: Reputation or Opinion Evidence of Untruthful Character
c. General propensity bar (Rule 404(a)), but: When evidence relates to character, ask
what the proponent is trying to prove and the inferences relied upon:
d. If character is essential element of claim, then reputation, opinion, and even
specific acts allowed (Rule 405(b)); examples:
i. Defamation suits (prove truth/reputational injury)
ii. Child custody (determine best interests of child)
iii. Entrapment (to prove D lacked predisposition)
iv. Negligent entrustment (to prove knowledge)
e. Rule 404(a)(1) Bars Character Evidence When Used to Prove Propensity
Propensity for untruthfulness/truthfulness
- Rules 608, 609, 610
General Propensity (problematic quadrant)
- Ruel 404(a)
-
Cross-examine regarding specific acts of
untruthfulness
- Use character witnesses
- Impeach with criminal convictions
Character/Reputation as Elements
- Rule 405
- Admissible
-
Generally inadmissible (but see other
quadrants, which may admit)
Non-Propensity Purposes (active quadrant)
- Rule 404(b)
- Generally admissible
f. Character Evidence to Show Propensity in Criminal Prosecutions
i. Rule 404(a)(2) Allows Some Character Evidence to Prove Propensity in
Criminal Cases aka MERCY RULE
Type of Character Evidence
Pertinent Trait of the Defendant
When May The Defendant Offer
This Evidence?
Any time
Trait of peacefulness of alleged
victim
Not applicable: defendant would
not introduce this evidence
Other pertinent trait of alleged
victim
Any time, unless barred by Rule
412 (rape shield law)
When May the Prosecution
Offer This Evidence?
To rebut character evidence of
the same trait offered by the
defendant OR to match
character evidence that the
defendant offered about the
alleged victim
In a homicide case: to rebut any
evidence that the alleged victim
was the first aggressor
In other cases: to rebut character
evidence that the victim was not
peaceful
Only to rebut evidence of the
same trait offered by the
defendant; evidence must
comply with Rule 412
ii. Exceptions Derive from the Mercy Rule
1. Only applies in criminal cases
404(a)(2)
(A)
(B)
Defendant
Defendant’s trait
Victim’s trait
(C)
Evidence of aggressor
Prosecutor
Defendant’s opposite trait
Victim’s opposite trait
Defendant’s same trait
Victim’s peacefulness
g. Crimes, Wrongs, or Other Acts (Rule 404(b)):
i. Not to prove propensity, but to prove something else, such as (not
exhaustive):
1. Motive
2. Opportunity
3. Intent
4. Preparation
5. Plan
6. Knowledge
7. Identify
8. Absence of mistake
9. Lack of accident
ii. Rule 403 underpinning / limiting instruction
h. Habit (Rule 406)
i. Habit is Specific, Repeated Conduct in Response to Certain Situations
ii. NOT character evidence
iii. Can testify of own habit, do not need corroboration, but w/o evidence hard
for jury.
i. Rape Shield Law (Rule 412)
i. DO NOT APPLY MERCY RULE HERE. Goal is protect victim.
ii. Prohibits specific acts and general character evidence against a victim in
sexual misconduct case
iii. Exceptions in Criminal
1. Specific instances requiring physical evidence
2. Specific instances with respect to Prior Sexual Conduct Between
Defendant and Alleged Victim
3. Necessary to Protect Defendant’s Constitutional Rights
iv. Exceptions in Civil
1. Reverse 403 Standard.
j. Propensity in Sexual Assault and Child Molestation Cases (Rules 413-415)
i. The Rules Override Rules 404’s General Bar on Propensity Evidence
1. Court may admit evidence that defendant committed any other
sexual assault.
a. Allows prior acts (charged or not)
b. Propensity reasoning
c. Difficult to reweigh under Rule 403 Still Applies
d. Does NOT prohibit subsequent acts (doesn’t need to be
prior only)
CHAPTER 22: Cross-Examining the Character Witness
i.
Impeach by character for untruthfulness (Rules 608 & 609)
2. Rule 608(b): cross-exam witness about specific acts that show
untruthfulness (no extrinsic evidence, exception for criminal)
3. Rule 608(a): call character witness to attack character for
truthfulness in form of reputation/opinion evidence, but not
specific acts
a. In response, other party may support character for
truthfulness by calling own character witness, but
untruthfulness must come first to open door
b. Cross-exam can ask about specific acts (more to ask if
witness knows what they are testifying about/testing
knowledge rather than truthfulness)
February 3
CHAPTER 24: Rule of Completeness
I.
Rule of Completeness (Rule 106) – Rule for Timing
a. If a party introduces all or part of writing or recorded statement, an adverse party
may require the introduction, at that time of any other part – or any other writing
or recorded statement – that in fairness ought to be considered at the same time.
i. Allows party to introduce qualifying portions as soon as offered (need not
wait for rebuttal)
ii. Applies only to writing and recorded statements
iii. May introduce whole writings when necessary to understand another
document offered by opt.
iv. Fairness principle – flexible allows court discretion.
b. Does not compel admission of otherwise inadmissible hearsay evidence.
CHAPTER 25: Character Evidence and the Rules