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| Evidence Fall 2000 Mid-Term Exam Answer |
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| Sunday, 03 December 2006 | |
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UNIVERSITY OF THE PACIFIC McGEORGE SCHOOL OF LAW EVIDENCE Exam Answer/Analysis - PROFESSOR F. GALVES FALL SEMESTER 2000 DECEMBER 9, 2000 MID-TERM EXAMINATION 1:00 P.M. - 3:30 P.M. EXPLANATION OF ISSUES ON GALVES' 2000-2001 EVIDENCE MIDTERM EXAM NOTE: The following is a very comprehensive exploration of the issues raised in the exam. I certainly did not expect you to write all of what follows. You additionally will be receiving a copy of an exam answer written by of one of your classmates that received a very high score. This way you will have (1) a comprehensive analysis of the issues, as well as (2) an actual example of what one of your classmates was able to write in the time given. OUTLINE OF ISSUES -- ESSAY ONE [1] Q. And You Have Lived Here There for Eight Years, Right? OBJECTIONS (because it is a question): 1. 401 Relevancy: The D's could object because just exactly how long Paul has lived at that address has no logical or legal relevance to this intentional tort lawsuit. His length of residence at this address does not have any tendency to prove anything of legal or factual consequence that matters in the case. Logically, how long Paul has lived there has no bearing on whether Dan committed the tort or whether DD was liable for hiring him. Legally, his residence or length thereof is of no legal consequence in this tort lawsuit, either way it makes no difference to the claims alleged in the suit. Jurisdiction over Paul is not an issue because Paul is the plaintiff (consent, purposeful availment by filing). Paul might respond that this is just a preliminary matter to give the jury some factual background/context in which the alleged incident took place. In such instances the relevancy is its general context as it relates to the overall story that Paul is telling. A judge would likely sustain the objection (but if made, query what the D's would hope to gain by objecting, as it probably would only hurt them strategically with the jury by being disruptive). The judge would likely have counsel move on to more pertinent background, like the fact that Paul was an employee of the law school showing why he was on campus, etc. A judge, however, might overrule just to send a message that she wants the objections to be more substantive and less hyper-technical. II. 611(c) Leading: The D's would object that this is a leading question because it clearly suggests the answer (that Paul has lived there for eight years). Leading questions are discouraged on direct examination under the rule (but they are generally allowed on cross-examination). However, Paul's attorney might argue that it is allowable under the rule because the rule allows leading questions on direct examination for "preliminary matters." To the extent this is relevant background, Paul would argue that leading questions are allowable on a preliminary matter. Counsel might even argue that asking this question in leading form on a non-controversial preliminary matter is saving the court's time so counsel has more time to ask non-leading questions on important non-preliminary matters (judicial economy is one of the policy reasons why leading questions are allowed on preliminary matters, even on direct). A judge is likely to overrule the objection because the question is sufficiently preliminary -- the jury's goal in arriving at the truth is in no way compromised by allowing this particular leading question and counsel is even saving some time here. A judge may warn counsel, however, not to ask such questions as they get into more substantive matters. Also, it is not a good strategy to be so "nit-picky" so early as it does not build good rapport with the jury Note: A 611(a) ambiguous objection would be overruled even though the attorney says ". . . you have lived here there for eight years . . ." because the meaning is clear, it is obvious he meant that Paul lives here in town, or, that is, he lives there on Montgomery Way. [2] A. I Was Standing in the Student Center, Buying Some Over-Priced Food. MOTION TO STRIKE (because it is an answer): 1. 611(a) -- It is Non-Responsive: Paul's attorney could argue that the second phrase about the over-priced food is non-responsive as the question was "where were you," not "what were you doing." Paul's own attorney is unlikely to object to Paul's testimony, however, so the objection would not be made. Note that the D's cannot make this motion to strike because neither of them is the questioner, only the examiner (here, Paul's attorney) can complain that a witness did not respond to their question (very few students caught this last point). 2. 401 -- Irrelevant: D's can argue that what Paul was doing (buying food), and his characterization of the food (over-priced) is irrelevant. A judge would very likely sustain, although the fact that Paul was in the Student Center at the time was relevant. [3] A. Well, a Student, Wilma Waddington, Said to Me, "Hey Professor Martinez, Here Comes That Crazy, Freaked Delivery Guy, Dan, and He's Yelling at You and He Seems Very Upset!" MOTIONS TO STRIKE (because it is an answer): 1. 801 -- Hearsay: D's can argue that Paul's relation (as a witness) of an out-of-court statement made by the student (the declarant, Wilma Wadington) to prove the truth of the matter asserted by that student/declarant (how Dan was approaching/attacking Paul and her characterizations of Dan) is inadmissible hearsay. Paul might argue that it does not fit the definition of hearsay and therefore is admissible because it not being offered to prove truth of the matter asserted (what Dan did, or the characterizations of Dan), but just to show effect on the hearer -- who was Paul, and that what Wilma said frightened Paul and he thereafter became concerned for his safety. But D's could respond that this would be 401 irrelevant because Paul's mental state does not tend to prove whether Dan actually attacked/harmed him, and even if relevant, under 403, its probative value is substantially outweighed by the danger of unfair prejudice (the jury might not correctly limit its admissibility to the effect on the hearer and might go on to believe the truth of the matter being asserted by the student/declarant). Paul would maintain that Paul's fear by itself is relevant because it is part of the damages suffered by Paul (although the facts state only damages for stab wounds, but these assault/fear damages might be inferred). Also, Paul would state that the danger of unfair prejudice is not so great that it substantially outweighs the probative value. If it were otherwise, 105 limiting instructions never could be given. This is a close call on hearsay, but a judge would likely rule that it is inadmissible hearsay, and even if not hearsay, that the jury would probably take it that way even if instructed not to do so. However, a judge would wait for more argument on its ultimate admissibility. II. 803(1) Present Sense Impression & (2) Excited Utterance -- Hearsay Exceptions: Paul would argue that there are two good exceptions here to the hearsay rule: (1) that W's statement was a "present sense impression" because she was describing what she saw as she contemporaneously saw it (sort of a "play-by-play" account of the action) and (2) that W's statement is an "excited utterance" (under the stress of an event -- a crazy guy approaching Paul as if to attack -- she blurted out a warning). The D's might argue that the event is not stressful enough to produce honesty under 803(2) but would have a difficult time arguing this is not a present sense impression since it is a contemporaneous description of what Wilma was seeing at the time it happened and therefore a judge would likely rule that the exception applies and allow it in. III. 404(a) Improper Character Evidence ("that crazy, freaked out delivery guy") -- D's might argue that even if admissible as a hearsay exception, Wilma's description of Dan involved improper 404(a) character evidence (Dan has not "opened the door," besides, this is a civil case anyway, in which character is never allowed, unless a minority jurisdiction or under 405(b) when character is an "essential element"). It is improper character evidence because if Dan is supposedly known as that "crazy, freaked out delivery guy," then the jury might be led to believe that Dan probably committed this attack simply because he has a bad, threatening disposition or propensity to be violent and probably acted in conformity with that propensity and attacked Paul as alleged. Paul would respond that W is not relating character evidence, but was simply describing how Dan looked on that particular occasion. Dan simply appeared to Wilma as though he were crazy and freaked out, not that Dan necessarily has the character disposition of a truly "crazy freaked out guy." Paul might also argue that even if it were character evidence, that would be O.K., even in this civil case, because of the negligent supervision against Dan's employer, DD, making Dan's character an "essential element" and therefore admissible under 405(b), including even Dan's specific acts. Just on the general character issue, without the negligent supervision claim, this would be a fairly close call, but a cautious judge would likely exclude the evidence. At the very least, a judge might consider requiring Paul to elicit testimony that W is not saying anything about Dan's character, his reputation for being crazy or freaked out or in her opinion he is that way, but her terms only were descriptive of how Dan appeared on that particular day, and nothing else. But even then, it seems risky because the jury still might take it as improper character evidence, rather than just as a description of someone's appearance. However, given the negligent supervision claim, the evidence is allowable under 405(b) (if Paul is going to prove that DD negligently supervised Dan, Paul must prove that Dan had a bad reputation as an essential element of the claim against Dan's employer DD). IV. 701 Lay Opinion -- D's might argue that W's description of Dan involved improper lay opinion -- she is not a qualified expert to be giving her opinion as to Dan's psychological well-being ("crazy, freaked out;" or that "he seems very upset"). Because she is not a qualified psychology expert and these characterizations of Dan are just her unqualified opinion about Dan, her testimony should be excluded. Paul would respond by saying this is proper lay opinion and she does not have to be a qualified expert in psychology because she is just describing how Dan appeared in a short-hand helpful way to the jury, which is allowed under 701. For example, fact witnesses are allowed to testify that a person "appeared drunk" even if not an expert physician who conducted a medical sobriety test. A judge would likely overrule this objection, especially with respect to the testimony that "he seemed very upset" because a general appearance like this is something about which a lay witness can testify. Regarding the "crazy, freaked out" comment, however, a judge would likely sustain the objection there (ignoring for a moment the negligent supervision claim) because Wilma is not a qualified expert to offer her opinion/conclusion about Dan's overall mental condition. However, a judge might allow the testimony but only if the jury is instructed that the declarant's description of Dan as "crazy, freaked out" merely describes Dan's general appearance on the day in question, but not anything more about his actual psyche (still, many judges would not allow it even with this kind of 105 limiting instruction). Also, Wilma is not on the stand as a witness and cannot be cross-examined, query whether a declarant can offer lay opinion testimony. But again, under 405(b), since there is a negligent supervision claim, this would be allowed as an essential element (allowing reputation, opinion, and specific acts). [4] Q. O.K., What Happened after He Rushed at You Screaming and Waving a Knife? OBJECTIONS (because it is a question): I. 611(a) Assumes Facts Not in Evidence ("Waving a KNIFE"): The D's could object to this question because there has been no testimony or other evidence about Dan waiving a KNIFE (all Paul has said so far, as the only witness, was that Dan was "waving his ARMS"). Thus, the question clearly assumes facts not in evidence (the knife). Paul has no argument and a judge definitely would sustain the objection. II. NOTE: Sometimes counsel might purposefully ask such a question just to draw the objection in an attempt to have everyone (both sides, the judge and jury) focus attention on a key point that the questioner wants to emphasize -- here, that Dan was waving a knife. If there is an objection, counsel can easily clear it up by asking Paul what Dan was doing as he approached him, to which Paul (a friendly witness obviously) will take the cue and know what to say: that Dan was waving a knife (only now he might even say he saw Dan waving a "HUGE" knife), thus properly putting the fact that Dan was waving a knife in evidence. At that point, the jury is, and has been, paying close attention to the testimony and the little drama ends not only with the lawyer being able to get the "knife waiving" testimony in, but also the fact that Dan was waving that knife has now been fully emphasized. Moreover, there is extra dramatic appeal here because it seems as though Dan's attorney was trying to hide this damaging piece of evidence from the jury by objecting to it but was unsuccessful. It makes it seem as though Dan lost even more here (even though the objection was a perfectly valid objection to begin with). So be careful, the tip for the future is that you shouldn't always object just because you can. In this exam, I did not expect or ask you to take such strategic non-objections into account, but please be aware of them. [5] Q. I See, So You Didn't Do Anything to Him and You Did Not Provoke Him in Anyway? OBJECTIONS (because it is a question): 1. 611(c) Leading: D's would object because counsel is suggesting the answer. Paul would argue that this question is simply clarifying or restating what Paul has already testified to so it is not "suggesting" anything. The D's might say that if that is true then it is a redundant question and therefore has been "asked and answered." Paul would argue that is not that redundant and at most simply summarizes and clarifies prior testimony without being purely redundant. A judge would likely sustain the objection because it goes beyond mere clarifying (many judges would say that a witness' testimony should speak for itself anyway), the question prods Paul to make certain conclusions as if they were his own instead of the attorney's. II. 611(a) Compound: D's might also object to the question as being compound because there are two different clauses involved ((1) did not do anything (2) did not provoke). Paul would argue that although there are two different phrases here, they both really ask the same question and elicit the same information -- what Paul did or did not do to Dan -- so it is not really compound. A judge would likely overrule because there does not seem to be any problem in creating any ambiguity and it in no way is a trick or unfair question. The question is more redundant than anything else, because the two phrases really just express the same general concept. A more technical judge, however, would have counsel split up the question just to make sure (he may have done something, not to him, but which still might have provoked him). III. 611(a) Argumentative/Mis-Characterization/Lawyer "Testifying": D's would argue that the attorney is putting words, his own words, even improper legal conclusions, into the mouth of the witness. This is mis-characterizing the testimony, it is an attorney improperly testifying or at least arguing to the jury instead of asking a legitimate question. Paul would again argue that is mere clarification but a judge would likely sustain the objection since the jurors should be the ones to draw these conclusions from the previous testimony for themselves, not the attorney telling them exactly how they should be interpreting the prior testimony ("save it for closing argument, counselor"). [6] Q. How Much Were Your Medical Expenses? N/A -- This is a proper question. Counsel is simply asking about Paul's alleged damages (damages are a basic element of Paul's claim so he can be cross-examined about them). [7] A. I Have No Idea, I Have Never Been Told That, I Would Assume a Lot Though. MOTIONS TO STRIKE (because it is an answer): I. 602 Lack of Personal Knowledge: Once it is clear the witness does not know (and he clearly does not because he says, "I have no idea"), the D's can move to strike his answer and a judge would sustain because the witness lacks the necessary personal knowledge to testify about expenses and he even admits as much ("I have no idea"). He has never even been told by anyone with knowledge (in which case it would be hearsay anyway, unless there were some applicable objection). A judge would sustain. II. 611(a) Speculation/Conjecture: The fact that the witness goes on to say that he "would assume a lot though" is improper because in addition to lacking personal knowledge, the witness is improperly surmising or guessing or engaging in improper speculation. A judge would sustain the motion and strike the answer as improper. [8] Q. Would it Refresh Your Recollection If I Show You Your Total Bill for $27,000? OBJECTIONS (because it is a question): 1. 612 Improper Attempt to Refresh Recollection: D's would object that Paul's attorney should have stopped after he asked would it help to see the bill and not go on to say that the bill was for $27,000.00 (although note that this was close but clearly not the actual, precise amount down to the penny). By asking/revealing that amount (even though not precise) -- the amount he was trying to get the witness to remember on his own -- any testimony from Paul at that point would be suspect as not really emanating from his refreshed recollection. Moreover, the jury would not be hearing it for the first time from the witness but through the attorney's question. Paul might respond that although the attorney revealed the amount stated on the bill, it was not the precise amount. Thus, Paul's`memory was still sparked and that he is now testifying from his refreshed recollection. It should not matter that the attorney merely verbalized in approximate terms what the invoice clearly stated in print already, whether Paul's recollection was refreshed by the attorney saying $27,000 or the invoice stating it in print since Paul could have simply read it. The important point is that Paul now says he has an independent recollection of the amount being $27,000 and the invoice is merely superfluous at this point. D's would say that the rule is the rule and it is improper even for the witness, let alone the examining attorney, to read from the writing being used to refresh a witness' recollection because the writing itself is NOT evidence, only the witness' refreshed recollection/testimony is evidence. A judge would likely sustain the objection because the attorney went too far in revealing that the amount he was asking about was $27,000 (it was "precise" enough) according to the invoice (the rule is the rule). At this point, it is unclear whether the testimony of Paul will be his own or the coaching of him on the stand by the attorney. Although this seems technical because Paul might never have his recollection refreshed and just fake it based on what the invoice says, the rule must be followed. II. 611(c) Leading: D's could also object because the question suggests the answer -- $27,000 for damages. A judge would likely sustain this one because this is clear, improper coaching or leading of the witness. III. 611(a)Assumes Facts Not in Evidence: A judge would likely sustain this objection too because the attorney is already assuming the amount when there is no testimony or admitted evidence regarding the precise amount of the bill. It would have been different had the attorney merely said, "Would this piece of paper refresh your recollection?" -- and then show it, not revealing that it was an invoice for over $27,000 -- sustained. IV. 605 Improper Testimony of Attorney/605 Incompetent: D's also could object to the attorney essentially testifying as to the $27,000 amount of the damages -- this was revealed to the jury before the witness got a chance to remember it and testify about it. A judge would sustain because although an attorney can ask about the existence of a bill, the attorney cannot reveal the amount in a question (improper witness) by ostensibly asking what that amount is. V. 801 Hearsay: A judge would also grant D's objection that to reveal the $27,000 in the invoice is hearsay because it is relating the out-of-court assertion made by the hospital invoice writer/declarant being used to prove the truth of the matter asserted by that invoice writer/declarant as related by an in court witness (and an improper one at that -- the attorney reading the invoice in violation of 612 and 605). VI. 901 Lack of Authentication for the Invoice: D's also can argue that the invoice cannot be read from since it has not been authenticated. There is no witness to state that the bill is what it purports to be -- an authentic bill from Paul's hospital for Paul's medical expenses to pay for his injuries received in the attack. Paul might argue that the invoice is a self-authenticating document under 902, but a judge would likely sustain the objection because the record is not public nor official enough to fit the 902 criteria. [9] A. Well, Let's See, it Says . . . . $27,234.33. MOTIONS TO STRIKE (because it is an answer): 1. Same Issues as Above -- Because this Is the Answer to the Same Improper Question: 612 improper attempt to refresh recollection, 605 attorney incompetence, 802 hearsay and 901 lack of authentication all would be good bases for motions to strike this answer for the reasons set forth above. II. Improper 803(5) Past Recollection Recorded: If Paul tries to argue that the invoice is an 803(5) past recollection recorded in an attempt to get around the 801 hearsay concern, he would be mistaken and the judge would grant the motion to strike. There is no foundation here to support an 803(5) exception: Paul never had any memory of the $27,000.00 amount at any time in the past, ever; this was not a statement made or ever adopted by Paul; and Paul cannot vouch if the statement was correct and accurate at the time made. [10] Q. Isn't it True That Your Medical Bills Have Already Been Paid and You Owe Nothing Right Now? N/A -- This is a proper question on cross-examination, especially since Paul is requesting damages, a basic element of his suit and the specific amount of damages is at issue. However, there might be a 401 legal relevancy objection here if under applicable state substantive tort law the "collateral source rule" prohibits an opponent from asking this question about damages (no points here but the bar exam is notorious for asking such "cross-over" questions). Note that even though irrelevant to the issue of liability (it does not matter if Paul has paid or not with respect to the issue of liability -- whether Dan committed the tort and is therefore liable), it is still relevant to the issue of damages, which is obviously an element of Dan's claim. Also, the question is not compound because it essentially asks the flip side of the same exact coin (if paid off, it means he must owe nothing). Finally, it is not beyond the scope of direct since Paul testified to damages in general. [11] Q. But Your Insurance Company Is the One Who Paid Them, Not You, Right? OBJECTIONS (because it is a question) 1. 411 -- Improper Mention of Liability Insurance: Paul can argue that D's attorney has improperly raised the fact that Paul has insurance in violation of 411. It is improper to suggest that Paul has an ability to pay damages based on his insurance because the jury may not be so inclined to grant a damages award to Paul if they think he "really does not need it." The fact that he has insurance should not be held against him. D's can respond that although 411 excludes evidence of liability insurance, it is being used for another, proper purpose here. Paul is being untruthful or at least misleading as to his current damages, so the D's are merely impeaching him which is allowed under the rule. Also, this is Paul's OWN MEDICAL insurance, not "liability" insurance so the rule is not applicable by its terms. However, the policy concern behind the rule is the same and an argument can be made that it still should apply. Paul would argue that this stated purpose is really a way just to get the improper information before the jury under the guise of merely impeaching the witness. If the evidence were allowed then it would be very easy to circumvent the rule anytime any insurance company paid out on any claim because then the defendant could get that evidence in by merely asking the plaintiff that they do not owe the full amount of damages. Paul would argue that he is not misleading the jury, and that he instead is just saying he was originally responsible for payments (the fact that he got them paid for through his insurance is inadmissible). As such, there is no need to impeach him with the existence of his insurance. D's would argue that 411 should not be read to give plaintiffs the power to trick the jury into thinking they have paid for damages for which they have not. Again, D's would raise the "Liability" insurance v. "Medical" insurance arguments. This is a close call which could go either way. A judge would likely sustain the objection if Paul did not make it clear to the jury that he does not currently owe those damages but he was responsible at that time for them and had to make arrangements for them to get paid (without revealing the exact nature of those payment arrangements -- pre-paid insurance premiums which kicked in and covered most or all of his expenses -- but depends on deductible, coverage and policy limits) . If he makes this clear, the judge would probably recognize the applicability of the rule, even though medical not liability insurance. Still, a judge might say that regardless of the underlying policy, this is Paul's own medical insurance, not defendant's liability insurance, and therefore admissible because such is not set forth in the text of the rule. [12] Q. But You Got Reimbursed Didn't You? And Now You Want to Get Double Recovery, O.K., I See Your Little Scheme Now. OBJECTIONS (because it is a question) 1. 611(a) Argumentative: Paul can argue that the comments of counsel do not form an actual question but are rhetorical arguments against Paul meant for the jury. A judge would definitely sustain with respect to the last comment "O.K., I see your little scheme now" which is not even in the form of a question but is an improper statement. The D's would argue again, however, that the reimbursement question is legitimate as is the double recovery issue because counsel is just impeaching Paul by exposing his attempts to get too much recovery. A judge would likely sustain the objection because of the way in which it is phrased. However, if counsel were to rephrase the question, it is possible the judge would allow the questions (as long as it did not cross over into 411 insurance issues), but such would be a very difficult balance to maintain. II. 611(a) Compound: A judge also would likely sustain an objection that the question is compound. Note that when there is a period, and then a new sentence beginning with the conjunction "and," this is usually a dead giveaway that the question is compound. The D's, however, could simply rephrase and state the two questions one at a time to overcome the problem. Again, some jurisdictions, as a matter of tort law, would not allow the question because alleged tortfeasors should not be the beneficiaries of a plaintiff's decision to purchase insurance. [13] Q. Do You Realize That Dan Has Never Been in a Fight in His Entire Life, Did You Know That? OBJECTIONS (because it is a question) 1. 401 Relevancy: Paul might object to this cross--examination question arguing that it has no relevancy to this case because we are not talking about any other incident in Dan's life but this one in which he allegedly attacked Paul. A judge would likely sustain this objection because what Dan may have done in other instances not related to this case is, by definition, irrelevant. Dan would have to show its relevancy (see possible character purpose below). II. 611(b) Beyond the Scope of Direct. Paul might also argue that this question about Dan not getting into a fight ever is his life goes beyond the scope of Paul's direct since Paul merely testified about the alleged stabbing incident of Paul but not any character issues or other specific instances in Dan's life. Now, we don't know for sure because we don't know the entire scope of direct, but there appears to be no direct testimony attacking Dan's character, only what Dan allegedly did on this one occasion against Paul. A judge would likely sustain this objection as the question about Dan's past life incidents (or lack thereof) seems to be out of place regarding this particular witness' testimony regarding what Dan allegedly did to Paul (presumably Paul stated nothing in his direct about what Dan has or has not done on other occasions). Usually, if one wishes to raise character evidence, then one does it on direct, by calling a friendly character witness, not on cross-examination, by calling an unfriendly witness, as here. This is a mis-placed, ill-timed question of this witness. III. Improper 405(a)(2nd Sentence) Question: Paul could also object that although a cross-examiner can ask about a specific instance of conduct to test the credibility of a character witness -- if there is a good faith basis for the question and the judge allows it in her discretion -- Paul is NOT a character witness against Dan or anyone else. So asking Paul about a specific instance of conduct (or as here, a whole lifetime of non-incidents) was improper. Again, a misplaced, poorly-timed question. A judge would likely sustain this objection, because Paul himself on the stand has not attacked Dan's character as violent. Thus, it makes no sense to allow Dan's attorney to test Paul's credibility on Dan's character with questions about specific instances, when Paul has never even attacked or supported anyone's character at all (only Wilma did, not Paul, so perhaps O.K. to ask Wilma this question, but not Paul). IV. 404(a) Improper Character Evidence -- Dan may still try to argue that the question is relevant and admissible because it shows Dan's good character for peacefulness and as such tends to prove he would not engage in the violent behavior described by Paul as it would be against Dan's disposition or be "out of character" for him. Paul could respond that character evidence is not allowed in a civil case, unless it is an essential element of a claim, charge or defense, which is not the case here in Paul's claim against Dan (a defendant does not have to prove he has non-violent character in order to successfully defend against an intentional tort charge of battery -- therefore it is not an "essential element"). Dan would have to concede that he cannot raise character in a civil case, but could try to argue that at least in a minority jurisdiction (and we may or may not be in one) it would be admissible, since the civil claim here (the intentional tort of battery) also involves an underlying crime (the crime of battery/assault with a deadly weapon), and as such the 404(a)(1)character exception should apply. Therefore, Dan should be able to "open the door" on his own good character. A judge would sustain the objection unless they were in a minority jurisdiction. If so, then Dan could open the door on his own character but he still would be required to use the correct method -- reputation or opinion -- to do so. Also, given the negligent supervision claim against DD, where Dan's character is an "essential element" of that claim, the issue of Dan's good or bad character is admissible. V. 405 Improper Method, Specific Instances of Conduct, Even If Character Were Allowed: Even if the court allowed character evidence in a civil case (say it is a minority jurisdiction), Paul could argue that counsel for D's is using an improper method to prove it because counsel is not asking a witness (here Paul) to testify to Dan's good character, but rather is simply testifying himself by asking a rhetorical question -- "Do you realize Dan has never been in a fight . ." not to mention it would be an improper leading question if trying to elicit friendly character evidence about Dan It is improper for an attorney to do testify about his own client's good character when he is asking about numerous specific instances in the aggregate where Dan allegedly never has gotten into a fight in his entire life. Dan would argue that these are not specific instances he is asking about, even in the aggregate, but just a general question designed to reveal Dan's reputation for his overall good character for peacefulness. So there is no mention of any one specific instance where he walked away from a fight and the method is proper. Paul would counter, however, that this is improper because Dan does not have a character witness through which to offer the witness' opinion about Dan's good character or to state what the witness thinks of Dan's reputation for peacefulness (or whatever relevant character trait). Paul is certainly not going to do this in a positive way anyway. However, Paul might want to go ahead and just answer the question and state, as he pretty much did, that Dan has bad character and a bad reputation for violence, after all, Dan's attorney is the one who has made a mistake by asking Paul on cross-examination about Dan's character. But once again, once you take the negligent supervision claim against DD into account, specific instances in a civil case can be used under 405(b) because Dan's character is an essential element. [14] A. No, but I Know He Is a Wild Man and He Was Completely out of Control Whenever He Came on Campus to Make Deliveries 1. Improper 404(a) Character Evidence: Dan would try to argue that Paul should not be able to raise bad character evidence against Dan, but Dan asked for it by literally asking Paul. If allowed, Dan then could ask about specific instances because now, finally, Paul is a character witness against Dan (Dan just jumped the gun and possibly opened the door, at least in a minority jurisdiction). A judge would sustain this objection, since character evidence is not allowed in a civil case, especially if the judge excluded Dan's previous question. II. Proper 405(a) Character in Issue to Prove the Negligent Supervision Claim Against DD (Dan's Employer): Paul again has a good comeback argument here to get in bad character evidence about Dan, even in a civil case in a majority (not minority) jurisdiction. It is based upon the fact that Paul is not just suing Dan for an intentional tort, but also is suing DD for the negligent supervision of Dan. Therefore Dan's reputation is an "essential element" of Paul's negligent supervision claim against DD (Dan's employer). Paul has to prove that Dan had a violent reputation in order to prove that DD was negligent in not supervising him. Paul could argue that showing that Dan had a reputation as a "wild man" and even specific instances of violent conduct while on campus when Dan made delivers all should be admissible under 405(b) as an "essential element" of the negligent supervision claim. Thus, even specific instances are O.K., because under 405(b) Paul is not limited to reputation & opinion evidence. So he can testify about Dan's specific times on campus as well as his overall reputation as a "wild man." Dan would have to concede here but at least he should request a limiting instruction (although some argue these backfire because they serve only to highlight the problem). Dan probably should still request 105 limiting instruction that the "wild man" and specific instances on campus be used only for making the claim against DD in the negligent supervision case against it, and is not relevant nor is it to be used against Dan himself to show that he must have attacked Paul. A judge probably would allow the testimony with a limiting instruction because it is testimony about an "essential element." III. 403 Danger/Request to Bifurcate Trial: Dan might argue that it is impossible for the jury to limit the testimony this way and therefore violates 403 because the danger of unfair prejudice substantially outweighs the probative value. He would argue that the jury might convict Dan for his propensity, and despite the limiting instruction, not limit his propensity to a finding of DD's negligent supervision. However, since Dan's reputation is an "essential element" of the negligent supervision claim against DD, it cannot be excluded al together for this trial. Dan might therefore request that the trial be bifurcated in order to eliminate the danger of unfair prejudice to him, but still allow the testimony for Paul's claim against DD, but just in front of a different jury/different trial. A judge might bifurcate as requested, but probably would just go with the limiting instruction to the jury. It depends on her discretion given all of the circumstances, including judicial economy concerns. Finally, one might make a 611(a) "non-responsive" objection, but the response (Dan is a bad guy) is actually responsive to the implication contained in this question (Dan is a good guy). It is a direct counter to that implication, so a judge probably would allow it [15] Q. Isn't it True That When Dan Visited You in the Hospital, He Offered to Pay Your Medical Expenses, Said He Was Sorry, and Asked You to Forgive Him? I. 611(a) Compound: The D's can object because this is a compound question containing at least three separate elements -- (1) pay medical expenses; (2) said he was sorry; and (3) asked for forgiveness. Even if two are correct and one incorrect, then a witness could say "no" even though legally misleading the jury. A judge definitely would sustain the objection, although the questioner could simply break up the question into three separate questions and still ask for the requested information. (Note: this is almost always the case for a "form of the question" type of objection, because one is merely objecting to HOW the question is phrased, so rephrasing will often cure the objection). II. 611(c) Leading/611(a) Assuming Facts Not in Evidence: Because this question is on re-direct of a friendly witness (not on cross of a hostile witness), a leading question is improper (not a preliminary matter, infirm witness, refreshing recollection, etc.). A judge would definitely sustain the objection and might even find that it violates 611(a) assuming facts not in evidence ("when Dan visited you in the hospital") but we would have to check the prior testimony in its entirety. Note again that rephrasing the question in a non-leading form would solve the problem. III. 409 Protected: Even if the form of the question objections were addressed with appropriate rephrases, the D's could argue that it is improper for a witness to testify about Dan's offer to pay medical expenses under 409 (because we want to protect the acts of humanitarians/good Samaritans). Although Paul would have to concede on the offer to pay medical expenses, Paul could argue that the apology and asking for forgiveness are statements which are not 409 protected and are therefore admissible. This is true because 409, unlike 408, excludes only the offer to pay expenses itself, but not any surrounding statements or conduct. A judge would definitely exclude the offer to pay itself under 409, but would allow in the apology and the request for forgiveness as they are not themselves offers to pay medical expenses, even though they were mentioned in the same sentence/paragraph as the offer. IV. 408 Offer to Compromise: the D's would argue that ALL of these statements should be excluded because these statements were all made in the context of a 408 offer to compromise/settlement negotiation. Rule 408 excludes the offer itself AND all surrounding statements and conduct (2nd sentence of 408). The D's assumption here is that the offer to pay medical expenses was not just some unselfish humanitarian act under 409, but rather was his offer to settle the whole dispute under 408. Paul could respond that there was never an actual offer to compromise the whole dispute because the apology and request for forgiveness were gratuitous/free admissions and were not dependant on, nor a part of, the offer to pay expenses. Dan might argue that given the context and circumstances (coming to the hospital after the accident) the offer to settle was implicit in the offer to pay expenses and the apology. But Paul would respond that Dan never said anything about Paul dropping the suit in exchange for Dan paying the expenses (where was the all-important "quid pro quo?). If such explicit mentions of dropping the suit in exchange for payment of expense were not required, then all simple 409 offers, by implication, would also be able to make a "metamorphosis" into an "implicit" 408 settlement negotiation. A judge would overrule this 408 objection by the D's because there is no indication that Dan was disputing the claim as to either validity or amount when he visited Paul in the hospital and it was not obvious given the context and circumstances. OUTLINE OF ISSUES -- ESSAY TWO D'S PRESENTED EVIDENCE 1. D's Testimony That Several Other Residents of the Boardinghouse Told Him That Vic Was "Out to Get Him." I. 801 Hearsay/806 Hearsay within Hearsay: The prosecution could argue that Dexter's testimony in this regard is hearsay (in fact, hearsay within hearsay), because Dexter is a witness in court relating the out-of-court statement of other borders (Declarants #1) who, in turn, had related to them the out-of-court statements of Vic (Declarant #2) that Vic was "out to get Paul." Dexter would argue that his (Dexter's) testimony (that Vic was out to get him) is admissible because it is either (1) not hearsay at all or (2) there are applicable exceptions or it is (3) "non-hearsay" under the rules. Vic's statements are not hearsay by definition because Vic may have said other things to get the other borders to conclude that Vic was out to get Dexter, but it is not clear that Vic actually said the words/statement: "I am out to get Dexter." The prosecution would have to clear up whether Vic actually said the words/statement: "I am going to get Dexter/I am out to get Dexter" because if not, the borders' conclusions about what they think Vic's intentions were are just statements of the borders (not Vic's). Even if Vic did say those particular words, Dexter might argue that it is not hearsay because Dexter is not trying to prove the truth of what Vic said. Instead, he is using Vic's statement only to prove the fact that Vic said it and because Vic made that statement, that statement ultimately put a fear of Vic in Dexter which has a tendency to prove Dexter's self-defense claim. Also, even if Vic said those particular words, Dexter would say that it was "non-hearsay" because it was simply an admission of a party opponent under 801(d)(2)(A) (Vic's statements come in as non-hearsay admissions of a party opponent). The prosecution might argue that it, the prosecution ("the people"), and not the victim, Vic, is the real party (Vic is not suing Dexter, the state is prosecuting him). As such, the party opponent exception does not apply because Vic is not the prosecution and therefore is not Dexter's opposing party in the case. A judge would likely find that Vic's statement is either not hearsay by definition because it is not being used for the truth of the matter asserted by Vic or possibly non-hearsay because Vic is so closely associated with the party opponent it is an admission of a party opponent (although most judges would say it is only what the prosecution would have said). However, even if Vic's statements to the other borders are admissible, what about the statements of the other borders to Dexter (the "second leg" of the hearsay within hearsay)? The prosecution could argue that those hearsay statements should be excluded as hearsay since they are also out-of-court statements. Dexter could argue that the statements of the other borders to him are not really being used for the truth of the matter asserted either, but again only to show the effect on the hearer (Dexter) -- to show that Dexter was afraid of Vic and a judge would likely agree with this point. II. 401 Relevance: However, the prosecution would respond that if Dexter is using their statements only to show that he (Dexter) was afraid of Vic, and not that Vic was actually "out to get him" and therefore was likely to have attacked him first to which Dexter merely defended himself, then the statements used only for that limited non-hearsay or hearsay exception purpose are essentially irrelevant. Dexter's defense of self-defense turns on why he stabbed Vic in the brawl, not what Dexter may have been thinking beforehand. Thus, only what Vic actually did in the brawl would be relevant, not Dexter's pre-existing fear of Vic. Dexter would argue that part of his defense of self-defense depends on showing his mental state DURING the fight because it reveals why Dexter took the allegedly defensive measures of stabbing Vic. As Vic began to get the better of Dexter during the brawl, Dexter felt even more threatened because he knew that Vic was out to get him -- that Vic was possibly going to kill him (and this is a bit of a stretch) -- and therefore Dexter needed to defend himself against Vic because Dexter had a pre-existing belief that Vic had a motive to "get" (kill?) him. Of course, this would depend on TIMING, that is, when Dexter was told this about Vic. It would have to be BEFORE the fight or else it would be irrelevant if dexter had this fear AFTER he killed him (would not relate to his alleged self-defense). Assuming it was before, a judge would likely overrule the objection and find the border's statements relevant, because although not being used to prove the truth of the matter asserted and thus not hearsay, they are relevant to Dexter's intent regarding his self-defense. The jury may ultimately find Dexter's actions as not warranted ("get" does not mean kill), but that weight determination is not the issue in terms of its admissibility. III. 404(b) Non-Character Purpose: Motive: Even though the prosecution may try to object to this as improper character evidence on Vic, under 404(a)(2), Dexter the defendant can "open the door" on the character of a victim in a criminal case. A judge would agree and overrule this objection, but Dexter would be limited to reputation and opinion evidence under 405(a). However, Dexter might also say that this evidence is not character but simply 404(b) non-character because it shows the motive of Vic to hurt Dexter in this particular instance. Dexter would then not be limited to reputation or opinion evidence if it were not character in the first place. The prosecution would argue that the evidence here is not a prior "crime, wrong, or act" of Vic, but a disposition that Vic had because the making of a statement is not an "act, wrong, or crime." Dexter could argue that the act of making statements is an act (wrong or crime). In either event, a judge would likely allow the evidence either as 404(b) non-character or allowable 404(a)(2) character -- it is just that if it is 404(b) non-character then it can be proved by any method, there would be no reputation or opinion limitation. Note: Dead Man's Statute -- You were not given any applicable state law here , but even if you were, it would not apply because this is a criminal, not civil case (so Vic is not a "party"), and more importantly, although Vic is now dead, the statements are those of the borders (non-parties), not Dexter's (a party, who is merely relating the statements of the borders). 2. Testimony of Fred, a Fellow Resident, That He (Fred) Has Seen Vic Start Many Fights at the Boarding House. I. 401 Relevance: The prosecution can object to this because the fact that Vic may have started fights with other people in the past -- before this alleged crime ever even occurred -- has nothing to do with the crime charged here which is the murder of Vic by Dexter. Dexter would argue that the relevance of this character evidence is that it tends to show that Vic has a violent disposition which in turn tends to show Dexter's defense of self-defense is valid because Vic was actually the initial aggressor here. A judge would agree that there is some relevancy here because the standard for relevancy is so low. If Vic has a violent disposition, that tends to show that he was the initial aggressor in this instance which is part of Dexter's self-defense. II. 404(a) Character/405 Methodology of Proof: If the prosecution objected to this evidence as improper character evidence, the judge would quickly overrule because under 404(a)(2) a defendant can open the door on a victim's bad character, here the relevant pertinent trait of aggression of the victim in a self-defense case. However, the prosecution should still object to the method of proof being used here under 405(a)-- these specific instances are not allowed, only reputation & opinion are allowed. So these other fights in the past -- specific instances of conduct -- are inadmissible because they are not in the form of reputation or opinion of Vic's bad character. Also, character is not a 404(b) "essential element" -- which would then make specific instances admissible -- in a self-defense case because it is not necessary for an accused defendant to prove that the victim had a violent disposition in order to be able to argue as a matter of law that the victim was the initial aggressor. Thus, a defendant can use the defense of self-defense, even if the victim aggressor does not necessarily have a disposition for violence in general. Dexter would have to concede this as a judge would definitely sustain the objection. However, if Dexter merely asks the witnesses what Vic's reputation at the boardinghouse was, and/or in the witnesses' opinion, was Vic a violent person, the answers of those witnesses would be admissible because they would then comport with 405(a). III. 406 Habit: Dexter might still want to get in the specific instances of the other fights, however. Thus, he might try to argue that he is not just presenting bad character evidence about Vic (violent propensity) limited to reputation and opinion, but merely that it was Vic's 406 "habit" to beat up guests at the boardinghouse. This would tend to show that Vic was the first aggressor against Dexter supporting his self-defense claim and since it is not character evidence it would not be limited to reputation or opinion evidence. The prosecution would respond that these instances are not true habit evidence because unlike habit, they were not automatic, non-volitional, non-deliberative reactions to a repeated set of circumstances. Rather, Vic would have had to have thought about (been volitional) whether he was going to fight someone or not and then act in conformity with his character, not habit. Moreover, Vic probably did not just get into a fight, like a robot, every time he merely saw a boardinghouse member. So it is highly doubtful that he started fighting every time he saw someone in the boarding house just as a practical common sense matter. Remember, the testimony is simply that Fred saw Vic start many fights, so presumably Fred saw Vic NOT start many fights as well. Plus, how many is "many" fights -- two, five, ten? -- and over how long a period -- a week, a month, a year, ten years? -- none of this is spelled out which would be required to rule this is habit evidence. Still, Dexter would argue that like the Perrin case, where the defendant was found to have a habit of being violent with any uniformed officers, perhaps Vic also had such a habit only it was boardinghouse members, not uniformed officers. A judge would likely reject the argument that this was habit, notwithstanding Perrin (a unique case). There needs to be more here to establish this was a Perrin situation, and we do not appear to have enough here to do that. 3. Testimony of Kelly, the Manager of the Boardinghouse, That in Her Opinion , Dexter Is Ordinarily a Non-Violent Person and That She Remembers That on Several Occasions Anytime Anyone Ever Tried to Start a Fight with Dexter, Dexter "Would Always Just Put His Hands over His Ears and Simply Walk Away." I. 401 Relevance: The prosecution would argue that the evidence about Dexter in other circumstances is irrelevant because it does not relate to what happened on the time in question with Vic. This would be rejected by a judge because a defendant can open the door as to his own character (here a pertinent trait because he is showing he is peaceful in response to a violent murder charge) and it is being used to prove that he probably did not act out of character on the time in question, thus it tends to support Dexter's claim of self-defense. The prosecution, however, might argue that in this case, who started the fist fight is irrelevant because it is what Dexter did as the fight was going on that took it out of the mere battery level and moved it way up to the stabbing, aggravated murder level. So whomever started the pushing and shoving is irrelevant to the eventual murder stabbing of the victim. Dexter might concede the low relevancy/low weight on the point of who started it, but who started it would still be relevant to show that Dexter has an overall peaceful nature because that would help to demonstrate that Dexter would not have taken it to the level of having to murder Vic, if such were really not necessary to save his own life, regardless of who started the fight. A judge would likely overrule the objection and find it relevant for the reasons stated. Also, in criminal cases, judges tend to give defendants quite a bit of leeway so there is no room to be reversed on appeal if there is a conviction. II. 404(a)(1)/405(a)(b) Method of Proof -- In a criminal case, the defendant can "open the door" on his good, non-violent character (a pertinent trait in a murder case), so it would be proper to raise this kind of evidence, and under 405(a) it would be proper to use reputation or opinion. Thus a judge would allow at least the first part of Kelly's testimony that "ordinarily, Dexter is a non-violent person." However, the prosecution can object to Kelly's testimony that "Dexter would put his hands over his ears and just walk away" because the method is improper -- 405 says no specific instances of conduct. Also, 405(b) allowing specific instances if character is an essential element of a claim, charge or defense would be inapplicable because in this case character is not "in issue"/an "essential element." Recall the Dahlins case, a defendant does not need good character to be able to prove self-defense because a defendant with bad character could still legally engage in legitimate self-defense. A judge would agree and rule that the specific instances are inadmissible under 405(a),(b). III. 406 Habit: Dexter might try to get in these specific instances not as character propensity evidence, but simply as habit evidence -- Dexter's "habit" of always just putting his hands over his ears and walking away from violent encounters. The putting of the hands over his ears is especially helpful in this regard because it is so specific and seems to be more of a non-volitional reaction than a thoughtful, deliberative manifestation of a character trait/propensity. A judge might find habit here (following Perrin) because it is more plausible that this could be a non-volitional, reaction to a repeated situation. Dexter probably was not assaulted everyday and whenever he was, he seemed to have the same, unique, specific reaction -- just putting his hands over his ears and walking away. Also, it is possible that a witness might see this repeated reaction to various circumstances when Dexter was accosted by others on several occasions (but we would need a little more of this testimony to qualify it as habit). 4. Testimony of a Cheech, a Drug-Using Junkie, Schizophrenic Mental Patient, Who Claims That Vic Is "The Devil" and That He (Vic) Is the One Who "Actually Killed President Kennedy." 1. 601 Competency: The prosecution may object to this witness' testimony in its entirety because he is not competent. He is either so high he cannot understand or communicate and/or he is susceptible to having a psychotic "episode" on the stand such that he cannot satisfactorily take the oath, understand questions, recall anything relevant or communicate sufficiently to the jury. Dexter would argue that these are all "weight" arguments -- things on which the witness can be attacked on during cross-examination -- but not admissibility issues because even though Cheech may have trouble testifying, he can still testify and be cross-examined about all of these concerns. This decision is largely in the judge's discretion depending upon how lucid Cheech happens to be on the day he is in court testifying (his past is irrelevant). The judge would have to inquire further to see if the witness truly thinks Vic is Satan or if it is simply a way of attacking Vic's character metaphorically and how delusional the witness is if he thinks Vic actually killed President Kennedy. Still, even if Vic believes these things, a judge may still allow a party to put him on as a witness at their own strategic risk because the opposing side will have a "field day" with them on cross-examination. II. 401 Relevancy/404(a) Character: Even if Cheech is determined to be a competent witness (not completely delusion, is capable of communicating etc.), the prosecution would attack the lack of relevancy of the witness testifying that Vic is the one who actually killed President Kennedy and/or is actually Satan/Lucifer and a judge would likely agree. What does it tend to show about the case that some crazy person has decided these delusional logically, impossible things about the victim? However, under 404(a)(2), Dexter can attack the general violent character of Vic (O.K. to attack the character of the victim) so he might be able to say "the Devil" if he means by that a person of bad moral character (but that would have to be made clear otherwise it would not be a pertinent character trait). Even if that were the case, the allegation of killing President Kennedy still would be an improper method to prove character under 405(a) because it would involve an improper specific instance -- the specific act of killing President Kennedy (which is not reputation or opinion). A judge would definitely agree and sustain the objection so as to exclude the evidence, so the alleged killing of President Kennedy would be out, but perhaps "the Devil" testimony, if pertinent character evidence, would be admissible. III. 403 Unfair Prejudice: Even if relevant and for some reason these allegations have some legitimate probative value ("the Devil" only to mean bad moral [violent?] character), it appears that it would be very low -- because it appears more to be like simple name-calling than it is the legitimate relating of helpful "evidence" to the jury -- such that the danger of unfair prejudice and misleading the jury (that someone does not like the victim) might substantially outweigh it and therefore make it inadmissible under 403. A judge has a great deal of discretion here, but on balance a judge probably would exclude it because of the low probative value and because this also might represent an undue waste of time. PROS. REBUTTAL EVIDENCE NOTE: This is rebuttal evidence, NOT case-in-chief, so the prosecution can put on character evidence if defendant has opened the door, which he has (see above) 5. Evidence in the Form of a Certified Judgment That D Was Convicted 15 Years Ago with Assault with a Deadly Weapon (switchblade assault). 1. 401 Relevance: Dexter would object arguing this assault 15 years ago is irrelevant. First, he would argue that it has nothing at all to do with the altercation with Vic and tends to prove nothing regarding what happened. Second, there is no indication that this prior similar act was "substantially similar" -- the surrounding circumstances -- such that it reveals anything relevant about whether Dexter defended himself legitimately against Vic or whether he simply murdered Vic. Finally, the fact that it occurred so long ago is meaningless today in revealing anything about who Dexter is presently. The prosecution would respond that Dexter's arguments merely go to the "weight," not admissibility of this evidence. The former stabbing conviction, even 15 years ago, tends to prove Dexter attacked someone with a knife before, it tends to show that he might have been more likely to murder Vic with a knife as charged. A judge definitely would overrule the objection and hold that the evidence is relevant because although it certainly does not by itself prove Dexter murdered Vic, it is logically related as it has some tendency to show that Dexter did this. Dexter might argue that under 403 the conviction should be excluded simply because it is so old the probative value is very low, however, since it involves a knife it is has a very high danger of unfair prejudice which substantially outweighs the low probative value. A judge might agree that the probative value is low and that there is a danger of unfair prejudice but probably would still allow it because it does not substantially outweigh it. II. 404(a)(1)/405(a): Dexter might argue that it is improper for the prosecution to raise character evidence against him. The prosecution would say yes it is, but of course, this is REBUTTAL evidence being raised only after D has "opened the door" on his own character for at least three reasons. Dexter has opened the door by (1) introducing evidence of his own good peaceful (pertinent) character -- 404(a)(1); (2) introducing evidence attacking the violent (pertinent) character of the victim --new amendment to 404(a)(1), and (3) even if Dexter had never raised any bad character evidence against the victim, note that this is a homicide case, and that Dexter has put on evidence that Vic was the "first aggressor" (testimony simply saying that Vic started it), so under 404(a)(2) (second sentence) Dexter has sufficiently opened the door on his own bad character for violence, even if we were to ignore the bad character evidence introduced against Vic. A judge definitely would overrule the objection and allow the prosecution to rebut by putting on bad character evidence of Dexter for the above stated three reasons. Dexter would respond by arguing that although the prosecution can use bad character evidence against Dexter because he opened the door, this particular evidence is an improper method under Rule 405(a) because it is a specific act, not reputation or opinion evidence, so it is not admissible. Further, because it is not an "essential element" -- Dexter would not have to prove Vic was a bad guy to be able to defend himself, the defense of self-defense would still be available against Vic, even if Vic were "Mother Teresa" -- specific acts are not allowable under 405(b). A judge would not allow the evidence because it is not in the right form -- reputation or opinion -- instead, it is an improper specific act. III. 404(b) Other Crimes, Wrongs or Acts: The prosecution might argue that since it cannot come in this form as character evidence, it is really not character evidence after all, that is, the conviction is being used for the non-character, non-propensity purpose to show that Dexter knows how to use a switchblade in a deadly assault (opportunity, special knowledge, abilities, Modus Operandi, etc.). Dexter would respond that this use of the knife special knowledge/ability/M.O. is NOT unique enough or specialized enough to fit within the rule -- rhetorically, is using a switchblade as opposed to any other kind of knife or weapon really "knowledge" in the 404(b) sense? There is really no special technique alleged, just the mere presence of a knife. A judge might allow this, but a 105 limiting instruction advising the jury to use it only for its limited proper 404(b) purpose (that he knows how to use a knife, for example) and not as and for improper 404(a) character evidence (that Dexter has a propensity to use knives in attacking people so he probably did that here). 403: Also, a judge might query whether a 15 year-old conviction's low probative value would not be substantially outweighed by the danger of unfair prejudice. Would the jury use it to for the improper character purpose -- he must have committed the assault because he is that kind of guy -- rather than for ONLY the permissible use -- he knows how to use a switchblade when fighting? IV. 404(a)(3) ---> 608(b)/609 Former Conviction: The prosecution might use this former conviction, not to attack Dexter's substantive character as a violent guy, but only to attack/impeach Dexter's credibility AS A WITNESS by attacking his character for truthfulness (only in his capacity as a witness, not in his capacity as the charged defendant). Thus, the prosecution is attacking his credibility as a witness by attacking his character for truthfulness because he has committed a crime for which he was convicted in the past (the knife assault 15 years ago). This is allowed under 609 (note that extrinsic evidence of a specific act is usually not allowed under 608(b), however, the one exception to this is 609, a former conviction, if it satisfies the other requirements of 609). In order to come in for this purpose, it must be a felony conviction under 609(a)(1), or involve false statement or deceit under 609(a)(2). It appears to be a felony conviction (we can assume it is, there is no indication otherwise and given the type of crime, it likely is). It does not involve false statement or deceit (a truth-teller can still be a violent attacker) so 609(a)(2) would bot be applicable. Because the witness is also a criminal defendant, there would be a special balancing under 609 (we will get into this more next semester). This felony conviction, therefore, tends to show that Dexter, in his capacity as a witness only, has a propensity to lie because he is a liar (if you are convicted of a crime the rules assume you have the character of a liar) and therefore putting on this former conviction is an allowable attack on his credibility/character for truthfulness. Dexter would try to keep the conviction out for at least three reasons: (1) since he is also the criminal defendant being charged with murder -- that is he is a defendant witness -- there is a tougher balancing test under 609(a)(1) to get this in (harder to get in against the defendant witness than it is against a non-criminal defendant); and (2) it is an old or stale conviction (over 10 years) so under 609(b) it does not meet the reverse 404 balancing test (but note we do not know when Dexter was released, it could be within 10 my ears if he served, say a six year sentence); and (3) under 403, there is a very high level of unfair prejudice -- will the jury be able to keep this underlying knife assault conviction separate as a credibility attack only and not use it substantively to show the charge put forth here -- murder with a knife? Maybe it should be excluded when the underlying credibility conviction (assault with a deadly weapon, knife) is so closely related to the crime charged against the defendant (murder of Vic with a deadly weapon, a knife)? A judge would likely exclude for one or more of these three reasons. Note that although there is much analysis on this issue, the points possible here were low (only one point in fact) since this was more of a second semester issue and we covered this only in the general overview (same for other second semester issues like hearsay, opinion, authentication, etc.; so even if you merely identified the issue and problem, you got credit). Other Issues: (1) 901 Authentication -- Dexter might argue that since this is documentary evidence, it needs to be authenticated. Usually one would call the custodian of records to do this or simply argue it is self-authenticating under 902 as a public record/document. This would not even be necessary if the defendant admits the conviction. (2) 801/803(8) Hearsay -- Dexter might say the record is hearsay -- document is an out-of-court assertion that he was in fact convicted, but there is an exception: the public records exception. Again, these are more second semester issues so I did not even assign points here, but I gave you some general persuasiveness credit if identified. 6. Evidence That D Has a Bad Reputation for Being a Law Breaking Thief. I. 404(a)(1)/405(a): If Dexter objected to using character evidence against him, the prosecution would argue that this character attack on Dexter is allowable because Dexter (1) put on character evidence about himself (2) attacked the victim's character and (3) in a homicide case, put on evidence that Vic was the first aggressor. Also, this is the correct method under 405(a) because this is reputation/opinion evidence which is proper. Dexter would have to concede on these general points, but he could argue that the problem is that this is NOT a pertinent/relevant character trait. Being a thief and general dishonesty have nothing to do with peacefulness or violence. Dexter has opened the door but only to Vic's violence and his own peacefulness. It is possible to be a very peaceful thief, a "pacifist swindler" -- so whether a violent thief or a peaceful thief, being a thief is irrelevant -- an impertinent trait. The prosecution would have to concede on the thief part, but respond that being a "law-breaking" person (regardless of being a thief or not) might be broad enough to fit within the violent/peaceful character trait Dexter has opened the door on. Thus, "law-breaking" can include the violent/peaceful character trait issue. However, Dexter can argue that not all violent acts necessarily break laws, and not all law-breaking involves violence. A judge would not allow the "thief" character trait evidence because it is not pertinent to peacefulness/violence. The judge might allow the "law-breaking" character trait because there is enough of an overlap with the violence/peacefulness trait. NOTE: You can disregard II. and III. On your answer sheets, so on your grade sheets, no one received points on those two issues and the issues were thrown out. 7. Actual Recordings of the 911 Tape of Vic After He Had Been Stabbed Revealing Vic Crying on the Phone for Help and Begging God for His Life as He Realized He Was Bleeding to Death I. 401 Relevance/403 Balancing: Dexter might object that the tape has very low probative value -- what is the prosecution trying to show with this and how is that relevant? Dexter can argue it has no relevance because all it shows is that the victim, in fact, died, but Dexter would stipulate to that, so the tape of him crying and gasping to show he is dead is irrelevant. Dexter would further argue that the non-existent or at least very low probative value (Vic did die, but we know that) is substantially outweighed by the danger of unfair prejudice because the evidence is being offered simply to inflame the passions of the jury as well as create great sympathy for the victim. It will be hard for the jury to consider Dexter's self-defense defense if they hear Vic plead for his life, crying, just before he dies. The prosecution would argue that it should not be denied the force and power of its evidence -- suffering and the horror of the defendant's alleged acts and its aftermath is powerful evidence of what actually happened, and defendant should not be able to neutralize it through a sanitized stipulation (see the Old Chief case). The jury should be made aware of the great harm, mayhem and heartache, even to Vic, that Dexter allegedly caused by stabbing him with a knife. Indeed, Vic died a slow, painful, agonizing death as he bled to death and Dexter should not be able to hide that sad, cruel reality from the jury. Rule 403 is there only to keep the litigation a fair fight, but not necessarily a close one -- the evidence is what it is and the parties should be entitled to present it. Dexter's convenient offer to stipulate only goes to establish the simple fact that Vic died, but does not reveal/show how violent that death was, or how much a man suffered due to the violent actions of the defendant. A judge might exclude the evidence because although it proves the victim's suffering, the charge is for murder and whether defendant committed that murder, not whether the victim suffered before he died. Suffering may be relevant but it would be more relevant at the sentencing stage, after the jury has determined guilt. But at the guilt phase it really says nothing about whether Dexter murdered Vic or merely was defending himself, in either instance, the victim would suffer before he dies, but this evidence might make it impossible for the jury to keep these issues straight. II. 801 Hearsay: Dexter would object that Vic's recorded statements are hearsay because they are out-of-court statements being related in court via a tape recorder. Vic is a declarant that obviously cannot be cross-examined. The prosecution would respond that Vic's statements are not hearsay because they are not being used to prove the truth of the matter asserted. We already know Vic died, that he bled to death (if stipulated to). So instead of showing that, it is being used to show the entirety of the crime (suffering) alleged against Dexter. Dexter would argue they go to the truth of the matter asserted (his own death, his suffering), and if not they would be irrelevant. The prosecution might say that the suffering is proved by HOW he was saying it, not the words of what he was saying (as well as the fact that he was crying, which is not even a statement, neither is "gurgling," "gasping," etc., those are not "assertions" but they are evidence of what the victim was going through). The prosecution might then argue that even if hearsay, Vic's 911 recording qualifies as a dying declaration under 804(b)(2) because Vic is 804(a) "unavailable" (because he is dead) and the statements were made under the impending threat of death (he knew he was a "goner") and this is a homicide case. Dexter would argue that this would not qualify as a dying declaration exception because Vic's statements, although made under the impending threat of death in a homicide case, they do not relate to the CAUSE of Vic's death. The prosecution would also argue these are 803(2) excited utterances and/or 803(1) present sense impression (regardless of Vic's availability) because Vic made them under the stress of an event (being stabbed seriously) and they were made contemporaneously (he was describing his own situation as it was unfolding). These exceptions would be difficult for Dexter to overcome. A judge would likely find that the dying declaration exception is not available (does not relate to cause of death) but the other arguments are persuasive -- not being used for their truth and to the extent they might, the excited utterance and present sense impressions would apply. NOTES: 901 Authentication: This 911 tape is probably a self-authenticating public document. 610 Religious Beliefs (Vic's praying to God on the tape): Although 610 does not allow religious beliefs to attack or support credibility OF A WITNESS, the declarant here, Vic is not a witness. Still the credibility of a declarant involves the same policy considerations so maybe his praying for his life might not be allowed or there should be a limiting instruction advising the jury not to take into account the victim's religious beliefs. After you have read this please review your answer, along with the grade sheet (and compare it to the copy of your classmate's high-scoring exam). Try to do this before Saturday when we meet to discuss the exam. After you have done all of that, make an appointment with me so we can clear up any lingering issues you may have and/or discuss how you might improve. |
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| Last Updated ( Monday, 04 December 2006 ) |
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