The Law of Evidence: By Jesse Langel

Use of Focus Groups to Gauge Impact of Evidence

noreply@blogger.com (Jesse Langel) — Sun, 18 Mar 2018 20:00:00 +0000

I attended the legal seminar “Evidence to Win” presented by New York State Trial Lawyers Institute. The speakers were Robert Genes, Nicolas Timko, Larry Simon, Andrew Finklestein, and Martin Edelmen. It is no mystery why these rock stars routinely secure huge verdicts and settlements. They are dedicated to the craft in all respects, especially when it comes to wielding evidence.

Watching Robert Genes present three years ago inspired me to start this blog. I point you to my prior blog discussing the Devito case, which rebuffed a defendant-doctor’s attempt to avoid a missing-witness charge by arguing that his testimony would have been cumulative. But such an argument can only be used against the party using the allegedly cumulative testimony. In other words, the doctor was on the wrong side of that argument.

Use of Focus Groups

Focus groups comprise a group of strangers hired to view evidence (pictures and videos, usually) to give their initial impressions before they’re employed at trial. The groups are asked for their gut reactions. The reactions are first sought in writing, anonymously, to avoid any group influence.

Questions raised by evidence could be:

Does a video support the narrative that a bus driver was negligent?
Does a recorded interview of an amputated man explaining the meaning of a tattoo help or hurt his credibility?
Does a lawyer’s opening statement exaggerate elements of a video?

Trial lawyering seeks to “move the minds” of the jury. Lawyers who exaggerate videos or oversell their importance will hemorrhage credibility. Instead, embed the words and ideas —elicited from the focus group—into your case. Address all weaknesses and misgivings perceived by the group.

Issues raised by a focus group overlooked by counsel:

Should a construction worker be denied psychological therapy for a work-related injury even though the worker assumed the risk of injury?
Does a witness’s arrogant demeanor in a previously recorded deposition elicit anger?
Does an economic life-care plan overreach in sought expenses?

Lawyers immersed in their own cases fail to see issues due to their own bias. Critical information, often overlooked, could be used to screen potential jurors and support better arguments. The attorney who already obtained objective input on evidence will present the case more confidently.

Politicians and corporations use focus groups regularly. So should lawyers!

Other strategies for plaintiff lawyers:

Use lay witnesses more often. Defense lawyers often use a “trial by smear” strategy to discredit a plaintiff’s credibility. This is often carried out on cross examination of the plaintiff; So neutralize that attack by first producing credible witnesses to shed positive light on the plaintiff. Frame the direct examinations with good, wholesome stories to rebut character attacks before they are even launched.

Lastly, as a matter of practice, take cases to verdict. Showing your opposition that you’re not scared of trial will raise your bargaining power and your reputation.

Getting into Evidence Previously Written Notes: Past Recollection Recorded

noreply@blogger.com (Jesse Langel) — Sat, 09 Sep 2017 17:27:00 +0000

D, a lawyer, was sued by P for malpractice for giving bad advice at a legal seminar. The advice at issue related to eligibility requirements of S-corporation shareholders. To prove that D provided the bad advice, P calls W, a different seminar attendee, to testify about the advice given. Despite P’s efforts to refresh W’s recollection, W cannot recall the particular advice given. P then asks W if she nook notes during that seminar and whether her notes accurately reflected what was said. W answered, “yes” to both questions. P then asked W to read aloud the relevant page of her notes. The notes reveal that P’s advice was indeed legally inaccurate. D objects to the note reading on hearsay grounds.

How should the court rule?

Overruled. Although the notes constitute hearsay, they fall within an exception known as “past recollection recorded.”

FRE § 803(5) excludes from hearsay:

(5) Recorded Recollection. A record that:

is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
was made or adopted by the witness when the matter was fresh in the witness's memory; and
accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
-----

Lawmakers feel that a contemporaneous memorandum will be more accurate than the present testimony of a witness with a hazy memory.

The hearsay exception of "past recollection recorded" should not be confused with “present recollection refreshed,” which refers to a writing used to refresh a witness’s memory; It is not read aloud so no “statement” is at issue.

Must Prosecutor Accept Stipulated Fact as to Felon Status? Relevancy v. Prejudice

noreply@blogger.com (Jesse Langel) — Mon, 04 Sep 2017 20:04:00 +0000

D is being prosecuted for 1) being a felon in possession of a firearm, and 2) assault with a deadly weapon. Prior to trial, D offers to stipulate that he is a “felon” as defined by the applicable statute. In return, he requests that the prosecutor promise not to offer evidence that D’s prior felony conviction was for assault with a deadly weapon. The prosecutor refuses to accept that on the ground that it is entitled to pick the evidence it wants to prove its case.

What should Defendant argue in response?

The stipulated fact (prior “felon”) gives the prosecution what it needs to prove his felon status for the first charge. Any additional evidence on that issue poses a substantial risk of unfair prejudice. And it would lead to unfair character-propensity inferences. The court would likely agree.

Explanation

This fact pattern was modeled after the Supreme Court case of Old Chief v. United States, 519 U.S. 172. The “felon” requirement in “possession of a firearm by a felon” required no “evidentiary depth” to convey the prosecution’s story. Although prosecutors are generally entitled pick their evidence to tell their story, the Supreme Court sided with fairness and admitted the less prejudicial form of evidence (the admission).

Relevance is a necessary condition but not a sufficient condition to admissibility. Under federal law, we always balance relevant evidence with a FRE § 403 balancing test. A core factor in that balancing test is prejudice.

“Rule 401 provides nothing more than a threshold test, ‘starting point in the determination of admissibility.’” U.S. v. Robinson, 560 F.2d 507 (2d Cir. 1977). See also Robert Baker, Vincent C. Alexander, Evidence in New York State and Federal Courts § 4:6 at 4-158 West NY Prac Series Vol 5m 2016. "If relevancy is found, the probative value of the evidence must be weighed against its prejudicial effect under Rule 403. "Robert Baker, Vincent C. Alexander, Evidence in New York State and Federal Courts § 4:6 at 4-158 West NY Prac Series Vol 5m 2016.

New York similarly balances relevant evidence against prejudice. The decision to admit or exclude relevant evidence rests within the discretion of the trial court. Bodensteiner v. Vannais, 167 A.D.2d 954 (4th Dept 1990)(“The decision whether to admit evidence that is logically relevant but is so prejudicial that its probative value is outweighed, rests within the sound discretion of the court.”)

1st Objection to Admissibility of an Exhibit: Improper Foundation Witness

noreply@blogger.com (Jesse Langel) — Sat, 04 Feb 2017 20:08:00 +0000

In a trial, any piece of evidence (i.e. document, diagram, photo, police report, summary) offered by any party requires a particular foundation procedure to establish that the exhibit is reliable and relevant.

Since I have a few, important student-loan cases that will hinge on the admissibility of documentary evidence, I am going to shift gears from the question-and-answer format and dive into to evidentiary objections to exhibits. This series is inspired by, and essentially extracted from Trial Techniques and Trials, by Thomas Mauet. His books are incredible courtroom-procedure “how to” manuals. New York law is also applied, especially with regard to business records.

Improper Foundation Witness

For an exhibit that is not self-authenticating (so reliable that no further proof is needed to establish its truthful existence), a live witness (i.e. “custodian or another qualified witness”) will be needed to establish a proper foundation. This foundation is necessary to assure the court that the piece of evidence is what it purports to be.

Business records are admissible if a qualified witness or certification provides the proper business foundation. In New York, such a foundation would be needed to satisfy the requirements of CPLR § 4518 requiring that whatever records are introduced to prove an act, transaction or event, the offering party must establish that the record was made under the following three conditions:

regular course of business;
that it was the regular course of business to make it; and
that the act, transaction or event was contemporaneously recorded in the business record.

If all of these elements are met, the record may enjoy the high degree of trustworthiness that would remove it from the hearsay objection.

Ad hoc memoranda, or materials prepared for litigation (which I see all the time in my debt-buyer litigation practice) will not cut it. Bronstein-Becher v. Becher.

Moreover, business records often contain double hearsay. Unless the author of the business record enters his own personal knowledge of the business-relevant event, the matter is double hearsay. Miller v. Alagna. The maker of the record must have a business duty to record the particular statement in order to justify the admissibility of the first level hearsay—the business record—as proof that the internal statement was made. Miller v. Alagna. The internal statement is the second level of hearsay and its admissibility can be justified only if the statement was made by another person (1) who had some relevant form of business duty to impart the information at issue; (2) whose statement falls within an independent hearsay exception; or (3) whose statement is offered for a relevant non-hearsay purpose. Robert Barker, New York Practice Series – Evidence in New York State and Federal Courts (Nov. 2016).

Relevance | Problem 2

noreply@blogger.com (Jesse Langel) — Mon, 17 Oct 2016 20:06:00 +0000

Plaintiff sues Defendant, an owner of a newspaper, for libel after releasing an article that accused Plaintiff of committing a string of robberies on New York City’s Upper East Side. To prove that Plaintiff committed those robberies, Defendant offers evidence that Plaintiff had been convicted of other robberies that took place in New Jersey within the last three years.

Plaintiff objects to the conviction evidence. Ruling?

Objection sustained. Three words: prohibited propensity evidence. The twist here is that the prior-crime evidence is offered by a defendant in a civil case to establish truth, which would be an absolute defense to a libel claim. Nevertheless the law under FRE § 404(b) disallows such “character” evidence to prove that a defendant acted in accordance with that character on a “particular occasion.”

Note that FRE § 404(b)(2), however, may permit such evidence if offered for another purpose such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of misstake, or lack of accident.” But here, Defendant is not using any of these other purposes and instead asserts that the article is simply true by pointing to the prior crimes. But using such character evidence to prove truth is disallowed.

This problem is similar to Problem 20 in Hearsay v. Not Hearsay. That fact pattern contained similar prior-bad-act evidence offered by a defendant to justify an allegedly unlawful firing.

New York is aligned with federal law. The Fanelli case states the following rule in civil cases: “evidence of character is not admissible in a civil case to raise the inference that a party acted in conformity therewith." Fanelli v. di Lorenzo.

Relevance | Problem 1

noreply@blogger.com (Jesse Langel) — Wed, 20 Jul 2016 17:25:00 +0000

In our last blog, we saw some basic definitions of relevance. Relevant evidence is evidence that tends to prove or disprove a material fact in the case.

For this problem, we revisit the relevance of “character” evidence. In evidence law, “character” is essentially the makeup of a individual’s personality traits, usually with a focus on one. Examples of character traits include honesty, dishonesty, generousness, friendliness, carelessness, calmness, anger, and selfishness. The law generally limits the use of this type of evidence to support an inference that a person ‘acted in conformity’ with that character. This is referred to as the “propensity inference.” But there are circumstances in which character evidence may be introduced. We will learn when and how it may be introduced. We already learned one way: impeaching a witness’ credibility on the issue of truthfulness.

Problem 1

Prosecution of D for the murder of V in V’s home. D claims he was camping in a neighboring state when the crime took place. To prove that D was in V’s home on the night in question, the prosecution seeks to offer into evidence that D was V’s part-time, health-care aid as part of a parole work-release program.

D objects to the prosecution’s evidence of D’s work-release evidence. Ruling?

Objection overruled, in part. The trial court would weigh the relevance of the work-release evidence against its prejudice caused to D under a FRE § 403 balancing test. Relevant evidence may still be excluded if its probative value is “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Here, the work-release evidence is debatable. The prosecution will argue that the work-release evidence is relevant to show a connection to V’s home and thus D’s “opportunity” (a permitted use under FRE § 404(b)) to commit the crime. The prosecution would also argue that the work-release part is relevant to rebut D’s alibi that he would travel to another state, likely prohibited under his parole. The defense will argue that the parole work-release part will be prejudicially construed against him. The jury may use the prior-crime evidence to infer D’s propensity to commit the crime at issue, a disallowed type of propensity inference. Furthermore, D will argue that the jury would punish him for his prior crime in the current case.

The court would likely admit evidence that D was V’s home health-care aid, but would exclude its connection to parole.

Here is a short video about the distinction between character evidence under a relevance analysis versus witness impeachment.

Introduction to Relevance

noreply@blogger.com (Jesse Langel) — Sat, 16 Jul 2016 22:49:00 +0000

Black’s Law Definition:

“Relevant” evidence logically connects to — and tends to prove or disprove — a matter at issue. It has appreciable probative value. That is, it rationally tends to persuade of the probability or possibility of some alleged fact.[1]

“Probative” means tending to prove.[2] Evidence that is not probative does not tend to prove the proposition for which it is offered.

Judge and writer, James Fitzjames Stephen’s, definition:

“The word ‘relevant’ means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probably the past, present, or future existence or non-existence of the other.”[3]

The noun “relevance” means the quality, state or condition of being relevant.

The Federal Rules of Evidence:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probably than it would be without the evidence;

(b) The fact is a consequence in determining the action.[4]

Other Characteristics of Relevance:

Relevance means a relationship between an item of evidence and a matter properly provable in a case.
Relevant evidence is generally admissible unless explicitly excluded.
Irrelevant evidence is inadmissible.
Relevance is a necessary condition, but not a sufficient condition, for the admissibility of evidence. For example, its probative value may be adjudged to be outweighed by the possibility of prejudice, confusion, misleading the jury, delay, wastefulness, or cumulativeness.
To preserve legal error for appeal, an objection on relevance must be timely raised.
Some specific exclusions apply to relevant evidence: liability insurance, subsequent remedial measures, settlement offers, plea negotiations. Theoretically, without these exclusions, parties would be discouraged from carrying insurance, fixing hazardous conditions, offering to settle, and pleading guilty to crimes, respectively.

The above characteristics contain language from the Federal Rules of Evidence §§ 103, 401 and 403. The footnote formatting on this google platform has its difficulties. I was unable to insert footnotes for those.

[1] See Advisory Committee’s Note to Rule 401, Fed. R. Evid.

[2] By the United States Constitution, a federal statute, including the Federal Rules of Evidence, or by the Supreme Court.

[3] Fed. R. Evid. 403 (2011).

[4] Fed. R. Evid. 103(a)(1).

Impeachment | Problem 33

noreply@blogger.com (Jesse Langel) — Mon, 11 Jul 2016 22:04:00 +0000

P sues D for defamation. To prove that the defamatory statement was made, P calls W1 who testifies that he was in a group of P’s business colleagues when D told the group that P was a “con man.” During its case-in-chief, D walls W2, W1’s wife, to testify that W1 suffers from frequent delusions.

P objects to D’s use of W2? How should the court rule?

Objection overruled. W2’s testimony is being offered to impeach the credibility of W1 by showing that W1 has a disability that might have affected his ability to perceive the utterance accurately, if at all. Physical and mental capacities are factors that may be considered in weighing the witness’ credibility. Ellarson v. Ellarson. These deficits bear on the potential for human error in recollection.

New York law is aligned with federal law in that both liberally permit this type of impeachment without much restriction. Such perception evidence is even more likely to come in if the witness’ credibility is key to the case. But courts have discretionary authority to direct and limit the use of such evidence.

Perception evidence is considered noncollateral (important), so extrinsic evidence (offered other than through the witness himself — in this case W1) may be used to prove it up. In the above fact pattern, W2’s testimony is considered extrinsic, and is therefore admissible, to impeach W1 by showing his possible sensory impairment (delusions).

Aside from sensory impairment, see the other nine components of witness credibility.

Impeachment | Problem 31

noreply@blogger.com (Jesse Langel) — Thu, 23 Jun 2016 17:57:00 +0000

Prosecution of D for stealing a construction crane from a work site at 2 p.m. on a Tuesday afternoon. D’s alibi is that he was inside Barnes & Noble browsing for books from 1:30 to 2:30 that afternoon. As part of its case in chief, the prosecution calls W, a manager of a pet store located across from the construction site, to testify that she observed D standing in front of the pet store looking at the construction at approximately 1:50 that afternoon. On cross-examination, D’s attorney asks W if she recalls telling her boyfriend that she was eating lunch at a restaurant from 1 to 2 p.m. that day.

W denies making that statement to her boyfriend. To impeach her credibility, D’s attorney calls W’s boyfriend to testify that W told him that she was indeed at that restaurant from 1 to 2 p.m.

The prosecution objects to D’s use of W’s boyfriend to impeach W? How should the court rule?

Objection overruled. This question resembles Problems 28 and 29. All three involve impeaching third-party witnesses with evidence of prior inconsistent statements. By whichever means the prior inconsistent statement is introduced (i.e. testimony or writing), the statements may not be admitted for their truth unless those statements were provided under the penalty of perjury consistent with FRE § 801(d). But absent that requirement, the statements are fair game for impeachment purposes under FRE § 613 so long as the adverse party’s attorney is provided its contents, upon request. And as is the case here, if extrinsic evidence is produced to “prove up” the inconsistency, FRE § 613 requires that the “witness be given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”

Unlike federal law, New York law requires that the cross-examiner lay a “confrontation foundation” (a walk-through of the specifics of the statement such as time, place, persons involved, substance) before cross-examining the witness as if the statement were presumptively made.

Impeachment | Problem 30

noreply@blogger.com (Jesse Langel) — Sat, 18 Jun 2016 19:06:00 +0000

Prosecution of D for auto theft. D testifies that he was at a music concert in another town when the crime was committed. To impeach D, the prosecution gives notice that it wishes to offer evidence of D’s 13 year-old conviction for a filing of a false tax return, a misdemeanor. The prosecution also supplies evidence about the circumstances supporting the probative value of D’s conviction.

D objects to the prior conviction evidence. How should the court rule?

Objection overruled if the court finds that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs the danger of unfair prejudice. As we saw in Problem 25, the governing federal rule is FRE § 609(b), which limits the use of conviction evidence after 10 years from the date of conviction or confinement, which ever occurs later.

Whether the probative value of the conviction “substantially outweighs” its prejudicial effect is a discretionary balancing act of the court. The older the conviction, the less probative value it has. FRE § 609(b) also requires that the proponent of an older conviction give adequate advance notice to the adversary so that its proffer can be contested. A ruling of admissibility must be made on the record. U.S. v. Mahler.

Although Congress’ intent seems to disfavor admission of stale convictions, case law seems to favor admissibility where the witness’ credibility was a central issue, or where the crimes underlying the conviction were in the nature of crimen falsi (dishonest act or false statement). U.S. v. Payton. See Problem 23 for a little more explanatory detail of crimen falsi. Here, filing a false tax return, may qualify for admission since it appears to be a crimen falsi, although it was done more than 10 years prior.

Impeachment | Problem 29

noreply@blogger.com (Jesse Langel) — Sat, 02 Apr 2016 22:57:00 +0000

Prosecution of D for soliciting a prostitute. The prosecution calls two witnesses. One witness says that she thinks she saw D committing the crime but isn’t sure. The second witness testifies that he is sure that D was not the person. To impeach the second witness, the prosecution offers into evidence a written statement by the second witness saying that D was definitely the right person.

Is the written statement admissible?

Much like Problem 28, the statement sought is a prior inconsistent one used to impeach the witness’s credibility. As we saw in 28, Federal Rule § 613 dispelled with the “confrontation foundation” necessitated by some state courts, including New York. That foundation requires an essential “walk through” of the statement’s existence (time, place, persons, substance) before asking the witness whether he or she made it. Federal law requires no such foundation but does require that it be shown to opposing counsel upon request.

Both New York law and federal law require that the witness be given an opportunity to explain or deny the statement if extrinsic evidence (outside proof) is introduced to prove the statement’s existence.

An interesting twist here is the fact that the prosecution is impeaching its own witness. New York disfavors impeachment of a direct witness’s credibility while federal law (FRE § 607) expressly allows it.

Although attacking your own witness’s credibility is prohibited in New York, the practitioner may offer substantive evidence that conflicts with that witness’s testimony to establish competing facts (an indirect impeachment technique). Also permitted in New York is asking leading questions to a direct witness who ends up being hostile. Becker v. Koch. Questioning a direct witness about prior convictions is also permitted to “take the sting out” of cross-examination. People v. Minsky.

Impeachment | Problem 28

noreply@blogger.com (Jesse Langel) — Wed, 30 Mar 2016 12:32:00 +0000

Prosecution of D for a bank robbery that occurred at 3 p.m. on a Friday. D’s alibi is that he was fishing at that time. The prosecution produces W to testify that he saw D sitting in a car in front of the bank at 2:45 p.m., a fact that conflicts with his alibi.

On cross-examination, D’s attorney asks W if he recalls telling his girlfriend the next day (Saturday) that he was at work all afternoon on Friday and that he never left.

Prosecution objects to D’s attorney’s question of W. Ruling?

Applying federal law, the objection is overruled. Applying New York Law, the objection is sustained.

The question seeks to impeach W by exposing his prior inconsistent statement. Since W’s alleged statement was not made under oath, it may not be admitted for its truth. The mere fact that the statement was made could have an impeaching effect on W’s credibility since it is inconsistent with his trial testimony.

Prior inconsistent statements — or self-contradictions — infer a witness’s mistake, confusion, forgetfulness, or dishonesty. Larkin v. Nassau Electric.

New York law requires the cross-examiner to lay a “confrontation foundation” before attacking a witness’s credibility with a prior inconsistent statement. If the prior statement was oral, the cross-examiner must describe for the witness the 1) time 2) place 3) persons present 4) substance of the statement and then 5) question whether the witness made the statement. People v. Wise. If the statement was written, the examiner must show it to the witness or read the relevant contents to the witness. Larkin v. Nassau Electric.

New York’s “confrontation foundation” is intended to avoid surprise and give the witness an opportunity to deny, clarify, or explain the inconsistency immediately after brought to attention. People v. Duncan.

Unlike New York, federal law (FRE § 613) eliminates the requirement that the prior inconsistent statement be disclosed to the witness before questioning about it may proceed. U.S. v. Marks. The rule does expressly require, however, that upon request, the statement be shown or disclosed to the adverse party's attorney.

Both New York law and federal law generally require that a witness be given an opportunity to explain or deny a prior inconsistent statement if the examiner seeks to prove it up using extrinsic evidence.

Components of Witness Credibility

noreply@blogger.com (Jesse Langel) — Sat, 26 Mar 2016 02:21:00 +0000

After having established a witness's competency[1] to testify, the fact finder must determine the accuracy with which the witness exercised her cognitive and perceptual capacity, the strength her of memory, and the actual truthfulness of her testimony.[2] In other words, the fact finder assesses her credibility, or believability.

Components of credibility:

Physical and mental capacity;
Opportunity for observation;
Narrative ability;
Interest, bias, or partiality;
Bad character for truthfulness;
Demeanor evidence (appearance and attitude);
Prior inconsistent statements;
Contradictory facts;
Prior vicious, immoral, or criminal acts; and
Prior Convictions.

Credibility is usually a question of fact for a jury.[3] That’s why a witness may not opine on another witness's credibility. That would invade the province of the jury. Like all other relevant evidence, credibility evidence is subject to exclusion if the court decides it will prolong the trial, mislead the jury, or cause unfair prejudice.

Not all witnesses have credibility problems. Should you wish to attack a witness’s credibility, here are the modes of impeachment.

[1] Competency requires adequate powers of perception, memory, and communication, along with an understanding of the oath to testify truthfully.

[2] McCormick on Evidence § 33.

[3] People v. Regina.

Impeachment | Problem 27

noreply@blogger.com (Jesse Langel) — Wed, 23 Mar 2016 02:36:00 +0000

D is on trial for assaulting a politician. D calls W, who testifies that D was with her at a fundraiser two towns away when the assault occurred. On cross-examination, the prosecutor asks W if it isn’t true that she (W) was convicted of attempted murder 4 years earlier.

D objects to W’s prior conviction. Ruling?

Objection overruled unless the court finds that the probative value of the evidence on the issue of W’s credibility is substantially outweighed by the danger of unfair prejudice, confusion, or delay.

The conviction evidence must be filtered through FRE § 609 (Impeachment by Evidence of a Criminal Conviction). The conviction is sought to impeach the witness’s character for truthfulness. The law presupposes relevancy of convictions for serious crimes (punishable by death or imprisonment for more than one year). Perhaps the crimes support inferences such as the witness’s willingness to break rules or be untruthful. This rule is an exception to the general rule prohibiting propensity evidence.

But serious-crime convictions of non-defendant witnesses may be excluded under FRE § 403 if the court’s considered judgment finds that the conviction evidence substantially prejudices a party or disrupts the proceedings.

If the witness is the criminal defendant, the admissibility standard is slightly tightened. In that case, the court must admit such a serious-crime conviction to impeach the defendant’s credibility if the probative value of the evidence outweighs its prejudicial effect. This, to me, looks like a 51% threshold versus the 25%-or-so threshold when the witness is not a defendant

Worth noting is that if the crime involves a false statement or dishonest act (a crimen falsi, i.e. perjury, forgery, fraud), the conviction would have been automatically admissible, since it occurred within 10 years.

New York law seems to comport with federal law on impeachment through criminal convictions. When the witness is the defendant, New York’s leading case is People v. Sandoval, which confers discretion to trial judges to carefully balance the conviction’s prejudicial risks against the logical connection to the defendant’s credibility. A New York court would exclude such evidence if it has a disproportionate impact on the minds of the fact finder.

When the witness is not the defendant, New York confers even more discretion to trial judges and allows such evidence subject to a basic relevancy analysis.

Impeachment | Problem 26

noreply@blogger.com (Jesse Langel) — Sat, 19 Mar 2016 20:24:00 +0000

Prosecution of D for starting a riot. D claims that he could not have started the riot because he was drinking tea with his grandma at the time. In rebuttal, Prosecution calls W to testify that D is known in the community for being a liar.

D objects to W’s testimony, claiming improper impeachment. Ruling?

Objection overruled. A direct attack of any witness’s character for untruthfulness is permitted under FRE § 608(a). It is accomplished through reputation or opinion evidence under federal law. Here, W is called to provide reputation evidence as to D’s known lying, or in other words, his character for untruthfulness. This attack would be carried out to impeach D’s credibility — not to substantively prove that D started the riot; That would amount to a prohibited FRE § 404(a) character inference.

New York courts traditionally also allow such direct attacks of a witness’s bad character as a form of impeachment on the theory that a dishonest person is less likely to testify truthfully than one who is reputed to be honest. People v. Hinksman. But a court is likely to limit such an impeachment to “key” witnesses who have given “substantive evidence.” The character trait of untruthfulness is at issue, and not a witness’s general “bad moral character.” People v. Pavao.

A key distinction in New York is the court’s insistence on limiting the character attack to reputation evidence to the exclusion of opinion evidence. People v. Bouton. Nor is using specific instances of untruthful conduct a permissible means to impeach in New York. People v. Schafer. Courts view that as extrinsic evidence of collateral matters. People v. Pavao.

Impeachment | Problem 25

noreply@blogger.com (Jesse Langel) — Mon, 14 Mar 2016 01:09:00 +0000

D is on trial for robbing a delicatessen. In his defense, he testifies that he was in another State on the night of the robbery. The prosecution, after plenty of notice given to D, seeks to admit into evidence D’s prior misdemeanor-perjury conviction of 14 years ago.

D objects to the conviction evidence. Ruling?

Objection overruled...if the conviction’s probative value substantially outweighs the danger of unfair prejudice to D.

Evidence of a conviction — including a crimen falsi (dishonest act or false statement) conviction — occurring more than 10 years after the later of i) conviction date; or ii) release from prison — is admissible only if:

its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. FRE § 609(b)(1).

Unlike FRE § 403, this rule tilts towards exclusion. When applying this balance test, courts may look to (1) the nature of the prior crime, i.e. its value on shedding light on Defendant’s character (2) lapse in time from conviction to trial (3) similarity between prior crime and current charges (4) importance of Defendant’s testimony, and 5) centrality of credibility to the resolution of the case. U.S. v. Hawley, (1977). The notice requirement was met in the above fact pattern leaving room only for a prejudice contest.

Impeachment | Problem 24

noreply@blogger.com (Jesse Langel) — Sat, 06 Feb 2016 16:03:00 +0000

P was sucker punched at a bar. He sues D for throwing the punch but D denies doing so. At trial, P calls W1 who testifies that immediately after the punch, bystander, X screamed, “D just socked P.” In response, D calls W2 to testify that minutes later X said that somebody else hit P.

P objects to W2’s testimony about X’s contradictory statement. Ruling?

Objection overruled.

We’re digging further into FRE § 806, which deals with impeaching a hearsay declarant. This rule comes into play after the admission of a hearsay statement — or after admission of a non-hearsay statement of an § 802(d)(2)(C), (D), or (E) declarant. Here, X’s first statement, “D just socked P,” is assumed to come in as an excited utterance. X is a hearsay declarant because W1 is conveying what X allegedly said out of court. As such, it is open season against X’s credibility as if he were testifying at trial.

W2 is called to impeach X’s credibility through a prior inconsistent statement. The slight wrinkle here is that X’s prior inconsistent statement occurred after his first statement. But FRE § 806 explicitly states, “[t]he court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.” X need not be given the opportunity to explain or deny the statement as would otherwise be required under FRE § 613(b).

Note that the advisory-committee notes to FRE § 806 point to differences in court opinions where the prior inconsistent statements occurred subsequent to the first hearsay statement admitted. The rule seems to favor admitting the subsequent statement consistent with the outcome in the above fact pattern.

See Problem 23 where we discussed impeaching a hearsay declarant with a prior tax-fraud conviction (a “crimen falsi”).

Impeachment | Problem 23

noreply@blogger.com (Jesse Langel) — Wed, 03 Feb 2016 01:58:00 +0000

Prosecution of D for snatching V’s purse while both were inside a subway car. D claims another man with a gray shirt snatched her purse. D calls W who testifies that he observed the crime when X yelled, “Hey lady, that man with the gray shirt just took your purse.” The prosecution then offers evidence that X was convicted of misdemeanor tax fraud six years earlier.

D objects to the conviction evidence. How should the court rule?

Objection overruled. Two words: crimen falsi. This 17th century Latin phrase means “the crime of falsifying.” It includes perjury, forgery, and other criminal acts involving false statements or dishonesty. Under the definition of crimen falsi, Black’s Law Dictionary actually cites FRE § 609 [Impeachment of evidence of criminal conviction] to help give support to the meaning of a crimen falsi. The issue in this fact pattern is whether a misdemeanor tax-fraud conviction may be used to impeach a hearsay declarant (X).

Tax fraud most likely involves the false statement and/or dishonest act that would mandate admission under FRE § 609(a)(2). This rule states that such evidence “must be admitted if the court could readily determine the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.” Rule § 609(b) does contain a balancing test requirement if a conviction, including a crimen falsi conviction, is older than 10 years, however.

As to the hearsay nature of the X’s out-of-court statement, we assume the statement was admitted as an excited utterance or present sense impression. As such, X’s credibility is subject to attack (or support) under FRE § 806 as if X were testifying at trial. X's credibility may therefore be impeached by the tax-fraud conviction.

Impeachment | Problem 22

noreply@blogger.com (Jesse Langel) — Sun, 31 Jan 2016 22:35:00 +0000

Prosecution of D for disorderly conduct. D testifies the he was acting normally, and that complaints about his conduct were exaggerated. The prosecutor elects not to cross-examine him. Then D calls W to testify that he has known D for years and that in his opinion, D is a truthful person.

Is W’s testimony proper?

No. For purposes of these problems, we’re applying the federal rules only. FRE § 608 contains the declarative statement, “...evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.” D is the witness. D’s character for truthfulness was not first attacked. Therefore, the evidence can’t be introduced.

The “mercy rule” of FRE § 404(a) here would not change the outcome. D may not introduce evidence of truthful character because that trait is not “pertinent” to an element of the crime of disorderly conduct. Perhaps the truthful character trait could have been used if the crime involved dishonesty, such as embezzlement or fraud.

As explained in this Nolo article, “Defendants and Character Evidence,” a criminal defendant exposes himself to evidence of his bad character and past misdeeds through cross-examination if he first “opens the door” with evidence of truthful character.

Impeachment | Problem 21

noreply@blogger.com (Jesse Langel) — Sat, 30 Jan 2016 17:52:00 +0000

Prosecution of D for burglary. In his defense, D testifies that he was at a baseball game when the burglary took place. On cross-examination, the prosecution asks D if it isn’t true that he hates baseball.

D’s lawyer objects based on relevance and impeachment grounds?

Objection overruled. The sought evidence is relevant to disprove D’s alibi. As with all relevant evidence, it is subject to FRE § 403. Unless there’s a decent challenge to the quality or tenuousness of the prosecution’s information about D’s hate for baseball, a court would likely rule that the probative value of this impeaching matter is not “substantially outweighed” by the danger of unfair prejudice, confusion, or waste of time.

As to the impeachment objection, there is no federal rule prohibiting this type of impeachment other than the broad bounds of FRE § 611(a) that gives the court discretion to limit witness matter that wastes time, or amounts to harassment or undue embarrassment.

Impeachment | Problem 20

noreply@blogger.com (Jesse Langel) — Sat, 30 Jan 2016 00:44:00 +0000

P sues D for negligently causing a car accident. At trial, P calls W1 who testifies that right after the accident, P was sobbing and exclaimed, “D just rammed into me.” P decided not to testify at trial. D’s defense at trial is that P was the one who caused the car accident. D then produces W2 who intends to testify that W1 is a known liar.

P objects to W2’s testimony. How should the court rule?

Objection overruled. W2’s testimony is offered to “impeach a hearsay declarant.” FRE § 806 is a rule for that purpose. Here, we assume that W1’s hearsay statement was admitted, most likely as an excited utterance.

Ordinarily, a person who does not testify at trial may not be impeached. However, FRE § 806 provides that if a hearsay statement by that person makes it into evidence, impeachment rules apply to that hearsay declarant. Consequently, FRE § 608 may be used to impeach the declarant’s reputation for untruthfulness. That is what W2’s statement seeks to accomplish.

Impeachment | Problem 19

noreply@blogger.com (Jesse Langel) — Thu, 28 Jan 2016 20:36:00 +0000

Prosecution of D for assaulting V. At trial, D testifies that he did not lay a hand on V. On cross-examination, the prosecution asks D if it isn’t true that shortly after the incident, D told a bystander that she “punished V through force.” D objects to the statement on hearsay grounds.

How should the court rule?

Objection overruled. The statement would be non-hearsay since it amounts to an opposing party statement under FRE § 801(d)(2)(a). The statement comes in for its truth (that D punished V through force). The statement would also be admissible to impeach D because it’s inconsistent with D’s current testimony.

Impeachment | Problem 18

noreply@blogger.com (Jesse Langel) — Tue, 26 Jan 2016 21:49:00 +0000

Prosecution of D for murdering her husband (V). D’s defense is that she was defending herself from V’s attack. She alleges that V was the first aggressor. D produces W to testify that V was indeed the first aggressor. The prosecution cross-examines W and questions him about his alleged affair with D.

D objects to the prosecution’s questioning of W. Ruling?

The question is proper to impeach W with motive evidence. The affair tends to show that W had a motive to testify falsely and favorably for D. W has the potential incentive to lie or shade his testimony to protect his relationship with D.

Also, an argument could be made that the affair evidence could be admitted substantively against W. The evidence could show D’s motive to remove V from the equation. It might be relevant on the aggressor issue.

If you’re seriously studying evidence and need plenty of hypos to practice with, I’d recommend Questions & Answer: Evidence. Also very good is Examples & Explanations: Evidence.

Impeachment | Problem 17

noreply@blogger.com (Jesse Langel) — Sat, 23 Jan 2016 21:42:00 +0000

Prosecution of D for physically assaulting Victim. D testifies that Victim was the aggressor, and that D was merely defending himself. To impeach D, Prosecution seeks to introduce evidence that D was convicted of a felony assault three years earlier.

D objects to the conviction evidence. Ruling?

Admissible, if the probative value of the conviction outweighs its prejudicial effect. We look to FRE § 609 [Impeachment by Evidence of a Criminal Conviction] when prior felony convictions (punishable by death or more than one year) are sought to attack a witness’s character for truthfulness. The standard when the witness is the defendant (FRE § 609(a)(1)(B) as here is to favor admission if the conviction’s probative value outweighs its prejudicial effect.

Of course, as in every other blog entry, you must consult all applicable laws in your jurisdiction, and you are not to rely on this basic educational material as legal advice.

Impeachment | Problem 16

noreply@blogger.com (Jesse Langel) — Tue, 12 Jan 2016 03:09:00 +0000

P sues Department Store for false imprisonment. Department Store’s defense is that it was justified in detaining P because it observed P attempting to steal a handbag. P denies that she attempted to steal the handbag. P then calls W to testify that at a recent party, P said that she did not attempt to steal anything before she was detained.

Department Store objects to W’s testimony? Ruling?

Objection sustained. Hearsay. Through W, P is trying to admit a prior consistent statement. But statements made out of court offered for their truth—even those made by parties—are subject to the hearsay rule. The statement here is offered precisely for its truth. Moreover, the statement does not fit the non-hearsay exclusion of FRE § 801(d)(B)(“prior consistent statement”) because it is not being offered to “rebut a recent fabrication” or to “rehabilitate the declarant’s credibility.”

Of course, as in every other blog entry, you must consult all applicable laws in your jurisdiction, and you are not to rely on this basic educational material as legal advice.