Professional Documents
Culture Documents
1. modus operandi exception to bar against evidence of character: applicable only to crim
cases or also civil. D only or W as well? Believe no, pg 198, plus 404b no crim id
2. Do federal rules take bubble bursting or mccormik approach?
3. Foundation for extrinsic evidence of bias: if W denies statement/expression of bias during
cross-exam is it still within the discretion of the judge to admit?
4. Where’s rule requiring ‘good faith’ questioning (ex – cross exam of W abt ‘bad acts’ to
impeach) + Must accept answer W on cross gives, cannot offer extrinsic ev.
5. Instances when a party may bring forth specific instances of conduct
6. Evidence of character available in civil, criminal (flow chart)
7. Important cases mentioned
8. If D raises good character evidence under 404(1)…and P wants to rebut by asking
questions about specific instances, must she do it by questioning the same W or may she
ask other W abt specific instances?
9. 609(a)(1) – bringing previous convictions of W, when do 403 assessment is judge
assessing whether conviction is probative or whether W actually committed the crime in
question?
10. Notes: R. 401, parts 1&2 are strategic, 3 is legal…what does that mean!?!?
11. 404(b) – must judge first do a 104(a) analysis abt legitimacy of admission (where you
argue why it should be entered) before jury does 104(b) process of whether event
actually occurred?
12. Pg 199 how could prosecution avoid use of extrinsic evidence to bring prior misconduct
and instead cross examine D? Why would defense broach topic of past crimes…don’t have
to stay in general scope of direct testimony?
EVIDENCE OUTLINE
I. TYPES OF EVIDENCE
A. Physical Types of Evidence
i. Real Evidence – gun, paper, etc.; an object that played a role in the events at issue,
produced for inspection at trial. Type of demonstrative
a) Exception to admittance: if particularly disgusting, like an amputated leg but
also depends on how presented.
ii. Demonstrative – object that played no role in events at issue but illustrates
something abt those events
a) Ex – maps, diagram, model, etc.
iii. Documentary (special type)
iv. Viva Voche – from the mouths of witnesses
v. Judicial Notice – [201]
a) substitute for other types, when highest ct. takes notice of efficacy of form of
evidence (e.g. radar, DNA)
b) Must be:
1. Adjudicative fact
Capable of being known to a veritable certainty/ ‘not subject to
2.
reasonable dispute’ [“capable of accurate determination thru sources not
reasonably questioned”] [201(b)]
3. Based on general knowledge, not judge’s own experience
c) Scope:
1. Only: adjudicative facts
2.
d) Not eligible for j.n.:
1. Legislative facts (pre-nuptual agreements deter divorce)
2. “subjective” points (Shaq is tall vs. Shaq is 6’10”)
e) Timing – any time, even during appeal
f) P may controvert j.n. [201(e)]
1. Judge may look at inadmissible ev (e.g. study that controverts study j.n.
based on). If unsure no j.n.; If by preponderance of ev permitted
2. Only before judicial notice ruled on and implemented [201(g)]
3. If civil conclusive to jury…so anything to the contrary is inadmissible.
4. ** …is applicable to the facts in way P stipulates (judicial notice Marines
trained in guns, dispute that D trained to clean gun quickly)**
g) Civil vs. Criminal
1. Criminal
Jury not required to accept j.n. as conclusive…even if D asks for
it
Past criminal conduct: ct. may take notice of existence of docs in
system, but likely not their contents (e.g. indictment for previous
assault, but not the facts or allegations contained within)
2. Civil
Jury must accept j.n. as conclusive
h) Practice Question
1. Assume for felony, must show item stolen worth $1,000. Prosecution puts
on case and rests, forgot to show item worth $1k. What can P do? Can
request j.n…available at any time, even on appeal.
B. Relevancy of Evidence [401, 402, 403]
i.
ii. Rules
a) R. 401 : RELEVANT – if has “any tendency to make the existence of any
fact that is of consequence to the determination of action more probable or
less probable than would be without the evidence”
1. “Logically Relevant” – evidence that has any tendency in logic to
establish a proposition
b) R. 402 : ADMISSIBILITY OF RELEVANT EV. – relevant evidence is
admissible except as otherwise provided by statute or constitution.
c) R. 403 : PREJUDICIAL RELEVANT – even if relevant, evidence may
be excluded if its probative value is substantially outweighed by
considerations of unfair prejudice, waste of time, confusion of issues.
1. “Legally Relevant” – Ev. whose probative is great enough to justify the
delay, expense, prejudice or confusion that is involved in considering it.
2. Examples:
Emotional appeal: personal injury plaintiff day in the life video
featuring emotional scenes of P w/ fam, cld remove prejudicial
portions
Waste of time, confusion: p.i. case for defective bullets at D
manufacturing plant 1, evidence of defects in bullets at other
plants…some probative but time of investigating differences in
plants, incidents, etc. outweighs.
Ineffectiveness of limiting instructions: D facing murder of V via
poison, pros wants bring ev of V claim before died that D
poisoned to show V’s state of mind not to show D murdered
but unlikely jurors wld be able to ignore for that purpose.
3. Court Should Consider:
Available substitutes for that evidence (prob value & risk of
prejudice) [Old Chief case],
Verbal testimony, stipulation, pre (not post)
autopsy photos, still illustrations (not computer
animation), direct W to avoid inflammatory
characterizations
*Testimony as accurate and truthful, cannot dismiss b/c
unreliable W*
4. Applies to:
Criminal + Civil
Both P + D
Exception – Rule 609(a)(2) impeachment of witness for
‘dishonesty crime’ w/o balance test.
Admissible for one purpose but not another and danger jury won’t
follow limiting instruction.
5. Objecting to:
Analyzing (1) §401 what is probative value?
(2) § 403 what is unfairly prejudicial aspect?
(3) How is V substantially outweighed by P?
6. Defending: minimize prejudicial facts/impact + max probative
V. WITNESSES
A. CHARACTER EVIDENCE [404(a)]
i. Exclusion against, generally: prohibits reception of evidence illuminating a person’s
(Witnesses, Defendants, any party on stand) general deposition, when that evidence
is offered to show action in conformity with that disposition on a particular
occasion.
a) Reasoning: “ct. encourages rigorous logic exercise about event, not whether
W good/bad person.”
b) “Character” – generalized descrip of disposition or general trait ex - honesty,
temperance, peacefulness (not stroke victim’s forgetfulness…medical
condition)
1. Arising from: one’s morals –this is not settled tho—over which one has
substantial element of choice and ppl view person more or less favorably
as a result.
B. Exceptions to the Exclusion
i. Criminal Trials
a) If D raises his own character which he raises and is relevant
b) P rebutting D’s claims of good character – may use specific instances when
questioning same W [404(a)(1)]
c) Accused offering evidence of pertinent trait of ‘victim,’ minus limitations
under 412 in sex offense cases
d) P bringing positive character evidence of V to rebut D character claims
against the victim (Note: objectionable if P raises before D does)
e) P bringing negative character evidence against D pertaining to the same trait
which D brought against V (Note: objectionable if P raises before D does)
f) Homicide case – D claims victim was original aggressor, evidence of
victim’s peaceful character [404(a)(2)]
g) Witnesses – for truthfulness or untruthfulness (at discretion of the ct.)[608]
h) Propensity Exceptions – not being used to show conformity but for some
other purpose [404(b)]
i) Habit is freely permitted
ii. Civil Trials
a) Character of the W for truthfulness or lack of (at ct. discretion) [608]
b) Propensity Exceptions
C. Prior Bad Acts 404(b) – (available in both civ and crim), supposedly not being used
to show individual in question acted in a consistent manner, but significantly
undermines 404(a)’s denunciation of character evidence as distinction is so slight.
i. Standard for admission: to be allowed, judge must determine if a reasonable jury
cld believe D committed act by preponderance of the evidence.
ii. Uncharged misconduct evidence is the term often used to describe what may be
admitted to prove the ‘propensity exception’ b/c ‘uncharged’ implies the act is not
the crime currently being charged in ct. and ‘misconduct’ shows that the act need
not be a criminal one.
a) May include: evidence of crimes/misconduct which did not result in
conviction, acquittal (sometimes)
iii. The act may be admitted not to show conformity but may be used to show
a) Circumstantial support for ultimate issues
1. Motive – may be the “ultimate issue” in a criminal case to show intent or
in civil to support award for punitive damages.
Ct. have allowed in for variety of reasons (nurse addiction as
reason replaced patients’ demerol shots w/ saline; D prior
imprisonment as evidence selling cocaine to support family) (but
another did not allow evidence of alderman’s gambling to show
motive for stealing money from city…said wld be allowed if
pressing gambling debt).
Racially motivated past crimes show motive/enmity against
group
Previous assaults against same person (show dislike as well as
‘lack of mistake’)
2. Preparation – uncharged crimes may be used, e.g. stole car to use as
getaway vehible for robbery, broke into store to take tools used for bank
robbery, etc.)
3. Modus Operandi – distinctively similar method admitted to show (a)
IDENTITY, often that of the defendant as perpetrator or also (b) LACK
OF MISTAKE. Some claim evidence of modus operandi must be
extremely distinct = signature.
“Brides in the Bath” case where man assumed fake name,
married wealthier woman, joint wills, wife soon found drown in
bath tub…P wanted to incl two other similar instances admitted
to go to identity
DOCTRINE OF CHANCES: addresses relevance of similar
misconduct and describes mental process of considering the
likelihood that an unusual or unexpected element would occur…
and the likelihood the unique factor would be coincidentally
replicated in linked instances (i.e. how many times can one
dude’s wives drown in the bath accidentally?)
Defending against: the situations differ in some manner (Joe
previously punching guy who hit on girlfriend not same as Leslie
being shot, although both may show anger over interference w/
females, bar incident was heat of the moment and Lelsie incident
on g.f. not interferer.
4. Common plan or scheme – underlying multiple crimes, like if son trying
to reconstitute father’s gun collection, fact stole one missing piece may be
used in case following son’s second theft of gun from collection.
5. Opportunity – shows that D had chance or ability or means to commit
the act in question.
Defense: if info being used is overly prejudicial (ex – broke out
of prison in area of robbery) should object due to existence of
less prejudicial methods
b) Ultimate Issues:
1. Knowledge – previous warnings abt illegality of certain activity may be
used to undermine D claims of ignorance,
2. Intent/Absence of Mistake – shows existence of a state of mind that is a
prerequisite of commission of the crime. Can also be used to disprove D
claims (if attributes bank robbery he committed w/ B but next day
committed another crime w/ B but was not under duress, undermines
claim). Also, showing of D was not acting under false impression, an
absence of mistake, undermines that defense.
Be careful! Close to being simply character evidence—which is
barred (if on trial for shooting A, evidence stood trial for shooting
L will only serve to prove the D has a violent, murderous temper)
3. Identity – uncharged misconduct may be offered to show identity of
person who committed certain act. Commonly through modus operandi.
Also, more directly (ex – D attempting to bribe juror suggests he is guilty
and has something to hide).
c) Must also withstand:
1. Relevance scrutiny: proponent must put forth evidence showing both
a) the immediate purpose for the evidence offered (what does it go to
prove? Move, opportunity, etc) & b) the ultimate fact it tends to prove (is
it circumstantially showing something or does it go to an ultimate
fact/element?)
2. 403 determination, must ask if…arouses horror or sympathy? Invoke
desire to punish? Remoteness in time of crime or other bad act?
Strength of evidence of case before the court. If solid case
already, makes additional evidence less probative and more
vulnerable to 403 objection
Alternative methods available to prove same point
if in blurry range btwn ‘general bad character’ evidence and
‘propensity’ argue it is unlikely jurors cld consider ev only to
element of motive, etc etc.
3. 104(b) determination, must bring sufficient evidence to show that a
reasonable jury could find by a preponderance of the evidence that W did
commit the act in question
d) New York Rule: the list of exceptions is exhaustive and evidence of
‘character’ may be brought in ONLY for those purposes listed.
e) Res Gesta/Complete Story – W permitted to tell story in a natural fashion,
admitted for that purpose NOT for saying anything abt character
1. Balance: full flavor vs. prejudicial
f) Quantum of Proof: Uncharged Misconduct – must show not whether
person was guilty of the uncharged offense beyond a reasonable doubt…but
whether the uncharged offense demonstrates proof of the charged offense
beyond a reasonable doubt.
1. Burden: showing of evidence sufficient to allow a reasonable jury to
conclude that D had committed the prior acts CONDITIONAL
RELEVANCY THEORY ([104b] jury obligation to consider evidence
only if it decides by a preponderance of the evidence that the fact at issue
is true)
2. • Huddleston v. United States (1988) – D accused of selling stolen goods
based on his selling at below the cost of manufacture, denied knowing
they were stolen. P offered evidence that sold stolen/apparently stolen
goods before to show guilty knowledge.
3. ex – Brook’s racial attitutdes
When character is element of cause of action, character is not used to speculate D behavior, 404 – not
but end in itself. showing
conformit
Prior bad act if showing something other than character, like motive, opportunity.
iv. Excludes:
D. Habit
i. Evidence of habit is freely admissible
ii. Distinction from character: habit is semi-authomatic/reflex response to particular
situations.
iii. In Business: to show processes
iv. For Admission: no requirement habit or routine be corroborated by other evidence,
do not need eyewitnesses, but decided by judge [104(a) – by a preponderance of the
evidence, whether is habit is not a question for the jury]
a) To argue against: not sufficiently regular … depends on how great the need
is for inclusion
b) Must meet § 701 test – Opinion of lay witness
E. Procedural
i. Notice P must give if intent to offer uncharged misconduct in crim trial [404(b)]
a) Motion in Limine – D may offer in response to possibility of uncharged
misconduct may influence his decision to take the stand.
ii. Limiting Instruction (uncharged mis) – inform jury that only purpose of evidence is
to shed light on D’s possible motive/intent/etc and not to show D had a bad
character and was likely to commit crimes of they nature charged.
a) Purpose: even if unlikely to effectively separate in mind of jurors, it preserves
for appeal.
iii. Partial exclusion/ Redaction/ Limiting Instruction (dual purpose) – when evidence
admissible for one purpose but not another, request limiting instruction or that
information be ‘neutered.’ In part to avoid prejudice.
iv. Stipulation – to avoid evidence which may be legally admissible for a purpose,
stipulate that point if less damaging than details being offered (P wanting to present
evidence of Joe’s shooting at motorist to show he knows how to operate a
gun/”ability or knowledge”…just stipulate knows how to operate gun).
F. QUESTIONING WITNESSES
i. On Direct
a) May not use leading questions (which suggest answer in question), except
1. Preliminary questions
2. Transitional questions (v. common)
3. To refresh recollection (can use not only verbal prompts)
4. To discuss things/facts/matters not controverted
b) REFRESHING RECOLLECTION [612]
1. W must demonstrate cannot remember facts asked to recall
2. Approach judge to seek permission
3. May bring anything OR use leading questions – does not need to be
admissible into evidence (however may redact irrelevant points and
furnish to opposing counsel if so request)
4. Once W memory sufficiently refreshed
5. Take item away
ii. On Cross
a) May use leading questions
b) Content is restricted to matters raised on direct
1. To get in, bring as own W
c) c
iii. Form of Question Objections
a) Leading – on direct not allowed unless… [611(c)]
1. Hostile witness
2. Adverse party
3. W identifies w/ adverse party – merely being friends is insufficient, must
be evasive
b) Beyond Scope – on cross-examination, may not as any questions of witness
dealing with topic not addressed during direct
1. To get in…invite as own W
c) Assumes fact not in the record – can’t do on direct, just b/c in discovery
does not mean in evidence
d) Calls for Narrative Response – witness could reveal inadmissible evidence
if prompt not sufficiently narrow.
1. Defending: not prejudicial and will not involve hearsay or inadmissible
evidence (careful, if wrong anger judge)
e) Compound Question – incl. multiple questions in one and cld confuse W or
give inaccurate impression.
f) Non-Responsive – W not answering question asked of him/her
1. Move to strike from record to preserve for appeal
G. LAY & EXPERT WITNESSES
i. R. 701 – LAY TESTIMONY
a) Basic Elements
1. “rationally based”
2. “helpful to”
3. “not based on scientific, technical, or specialized knowledge”
b) Argument for Excluding
1. R. 602 – Personal Knowledge
2. “Rationally based” – have collected underlying facts but did not reach a
logical conclusion.
3. “Helpful to”…not helpful if:
too general
too specific
merely concludes element at issue (despite R. 704 removing
ban on Opinions on Ultimate Issue, generally is not helpful)
H. IMPEACHMENT
i. Process/Method
a) Must be a good faith basis for factual validity of matters raised by questions
b) Extrinsic Evidence
1. Permitted:
Inconsistent statement
Bias
Mental capacity
2. Not permitted:
To impeach on collateral issue for truthfulness (but if relevant for
another reason may bring in extrinsic evidence)