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25 Cards in this Set

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Defendant has been charged with perjury before a federal grand jury. As part of its case in chief the prosecutor offers the following evidence

(1) W-1's testimony that he knows of at least 5 other occasions on which D had lied

(2) W02's testimony that D has a reputation in the community for dishonesty

As part of his defense, the D offers the following evidence

(3) W-3's testimony that the defendant has a reputation in the community for honesty
Assume that there is no objection to (3), On CROSS-exam of W-3 the prosecutor asks

(4) Did you know that D was convicted of perjury 5 years ago?

(5) Have you heard that D was investigated for filing false income tac return 10 years ago?

In rebuttal the prosecution offer the following evidence

(6) W-4's testimony that in her opinion D is a very dishonest person

(7)W-4’s testimony that this opinion is based on her having observed D lie and cheat on several previous occasions.
(1) Not allowed, until D brings up character issue, also specific facts

(2) same as #1

(3) Allowed--D can open the door to his own pertinent character triat

(4) Allowed like Michelson case--But Prosecution stuck with anwser they get

(5) allowed but 403 balancing--very low probative value b/c just an investigation

(6) allowed because D opened door

(7) Not allowed b/c can not bring in specific instances of acts--this is not a cross-exam.

(2)
D charged with possession of pot w/ intent to sell. The prosecution offers evidence that that 35 pot plants were found in Ds yard, D says that he though they were weeds. The prosecution offers evidence that 15 yrs before the charged crime, D sold pot to an agent. Admissable.
shows he knows what weed looks like not ACC
How is the CA approach to admissable forms of character evidence differnt from the FRE approach?
In CEC 1103- character evidence of victim- allows Specific ACts as well as reputation and opinion
D is charged with murder arising from a barroom brawl. In its opening statement, the defense states that the evidence will show that the alleged V was the 1st attacker and that the D act in self-defense

(1) D offers evidence that V had a bad reputation for violence.

(2) D offers evidence that V previously shot someone in a fit of road rage

(3) D offers evidence that 3 weeks before the incident that caused V's death, V attacked D in a fit of road rage

(4) D offers evidence that weeks before the fatel incident he heard that V shot someone in a fit of road rage.

(5) after the judge has admitted evidence about the bad reputation of V for violence, prosecution offers evidence of D's reputation for violence, and D hasnt offered any evidence of his good character?
(1) Admissible 404(b)

(2) inadmissible

(3) admissible-403 balancing-could show motive

(4) Admissible- show that D has reasonable fear- non-ACC (again 403 balancing)

(5)Admissible
KOBE HYPO

(1) D: what V said to him when he checked in

(2) D: how V was dressed that night

(3) coach: D is a gentleman

(4) coach: D treats coach’s girlfriend w/ respect


(5) V’s sexual activity with ex-boyfriend

(6) stain on V’s underwear

(7)V’s sexual fantasies with D

(8)V’s drug overdose one month earlier
(1)argue that evidence could be used to show consent on part of the victim

(2) This probably is inadmissible because of FRE 412(a)(2)—evidence used to prove victim’s sexual predisposition

(3)FRE 412 doesn’t really apply--FRE 404 and 405 allow this evidence to come in because it is KB who is attempting to introduce this into evidence; also because it is offered in the form of an opinion, reputation

(4) This is more probative and related to charges--But it is veering towards specific act, that would not be admissible

(5)FRE 412(a)(1) would prohibit this evidence (general prohibition)

(6)FRE 412 would allow this under exception to show that someone other than KB was contributor-But case here is about consent, not whether they had sex--Therefore, stain does not shed light on the issue at hand; probative value is relatively low--And the evidence has high risk of unfair prejudice

(7) may fall under exception--
may be sexual behavior with D; but Lin dont think this would fly
what are the exceptions to using character evidence to show ACC? (excluding impeachment)
(1) Criminal D to show his good character (or by prosecution to rebut the same)

(2) Criminal D to show Victim’s bad character (or by prosecution to rebut the same)

(3) Prosecution to show criminal D’s bad character after the D attacked the character of the victim for the same trait
what are the proper forms of admitting character evidence when used to show ACC?
when can you use reputation or Opinion?
when can you use specific acts?
(A) Reputation or Opinion
--In all cases where character evidence is admissible

--Cross-Exam—Inquiry allowed into specific instances of conduct --NO extrinsic evidence
(B) Specific Instances of Conduct --Only where character or trait is an essential element of a charge, claim, or defense

*CEC §1103- Allows specific acts evidence w/r/t Character Evidence of Victim
What are the 2 basic factors to consider when looking at habit evidence?


What forms of evidence are proper?
(1) Similarity of the Situation -how similair is the set of circumstances that we see the person acting under

(2) Consistency --how consistent is this person in responding to these kinds of particular circumstances?





Admissible in form of
--opinion
--reputation
--specific instances
what are the exceptions for using evidence of V's past sexual behavior or sexual disposition in a criminal case?
(1) specific instances of sexual behavior by alleged V offered to prove that someone other than accused was source of semen, injury, or other physical evidence


(2) specific instances of sexual behavior between the alleged V and the accused when offered by the D or P to prove consent (or lack thereof)



(3) Evidence the exclusion of which would violate the constitutional rights of the defendant
What are the excpetions w/r/t a V's sexual behavior/ predisposition and reputation in civil cases?
(a) Sexual behavior and predisposition...IF
(1) Otherwise admissible under FREs AND
(2) Probative value substantially outweighs danger of harm to V and unfair prejudice to any party



(b) Evidence of alleged V’s reputation is admissible only
(1) if V has placed it in controversy
What is the differnce in the CA approach to the admissibility of evidence of past sexual assualts and the FRE approach?
CA does not adopt FRE415; thus they dont allow evidence to be used in civil cases

Note: CA 1109- will allow prior evidence of domestic violence in criminal cases
name 2 proper purposes for admitting character evidence?
(not the exceptions-not impeachment)
1) Non-ACC inference K.I.P.P.O.M.I.A.
2) Element of the case
K.I.P.P.O.M.I.A.?
-Knowledge
-Intent
-Plan
-Preperation
-Opportunity
-Motive
-Identity (i.e. MO)
-Absence of Mistake
Johnson v. Elk Lake: J alleges school counselor sexually harassed and abused her. Teacher’s aid says that counselor picked her up and slid his hand over her crotch.

What was the holding here?
Hold: Court properly excluded aid’s testimony because the uncertainty regarding intentionality of S’s conduct, and the dissimilarities between the alleged acts, reduced the probative value, and the exclusion of the evidence can be justified on the grounds it may have prejudiced S unfairly.

Note: Prior offense does not have to be a conviction

Evidence must be sufficient to support a finding that the incidient occured
D’s car went through intersection, hit P.
W testifies at trial for P: “The light was red.”
Suppose 1 week prior to trial, W wrote letter to friend stating that the light was green.

1. Can D’s attorney ask W about prior statement?

2. If W denies making the prior statement, can D introduce W’s letter?
3. What if W’s prior statement was: “I’m not sure what color the light was.”?

------------------------
Suppose W also said in the letter she was on her way to the G Street Pub when she saw the accident. But on the stand she says she was on her way to The Graduate.

4. Can D’s attorney cross-examine W: “Didn’t you say you were on your way to the G Street Pub?”

5. If W insists she was going to The Graduate, can D introduce evidence that W was going to the G Street Pub?
D’s car went through intersection, hit P.
W testifies at trial for P: “The light was red.”
Suppose 1 week prior to trial, W wrote letter to friend stating that the light was green.

1. Can D’s attorney ask W about prior statement?

A: Yes 613(a)- can ask on cross exam



2. If W denies making the prior statement, can D introduce W’s letter?

A:Yes, W was given opportunity to explain/deny because of the question asked above



3. What if W’s prior statement was: “I’m not sure what color the light was.”?
A: Seems inconsistent w/ statement saying "light was X" --should be same result as above

Suppose W also said in the letter she was on her way to the G Street Pub when she saw the accident. But on the stand she says she was on her way to The Graduate.

4. Can D’s attorney cross-examine W: “Didn’t you say you were on your way to the G Street Pub?”
A: Yes, can cross-exam w/o much restriction

5. If W insists she was going to The Graduate, can D introduce evidence that W was going to the G Street Pub?
A: this seems like a collateral issue
What are the 5 methods of impeaching a witness?
1) Defect in W's capacity to observe/remember

2) Bias

3) Contradiction

4) Character for truthfulness

5) Prior inconsistent statements
Impeachment method: Defect in capacity to remember AND Bias.

Can you use Cross-Exam?
CAn you use Extrinsic Evidence?
Yes
Yes
C/L
Impeachment by contradiction:
Cross-Exam?
Extrinsic Evidence?
Cross-Exam-Yes

Extrinsic Evidence- Yes unless on collateral matter
Impeachment: Character for truthfulness:

A) Reputation/Opinion
Cross exam-yes
Extrinsic evidece-yes
-must be concerning the W's character for truthfulness
Impeachment: Character for Truthfulness

B) Specific Misconduct
Cross Exam- Yes
Extrinsic Evidence-NO

Cross examination--Admissible
--That pertain to character for truthfulness or untruthfulness OR concerning the character for truthfulness of another witness that the current witness being cross examined has testified.

i.e. X says “D never lies” --cross exam: “Are you aware of a instances X were D lied to a lot of people about shit”



Extrinsic Evidence--If ask about prior bad acts and W denies them, cannot offer extrinsic evidence to prove the prior bad acts
 1) Okay to refer to records – but quoting from documents would be going too far
Character for truthfulness: Prior Inconsistent statements
Cross-Exam --Yes
Extrinsic Evidence- Not admissible, unless...
1) W given opportunity to explain or deny

2) Opp party given opp to question W on the matter

3) not on a collateral matter
How is the CA approach to impeachment by evidence of specific conduct different from the FRE approach:
1)CEC 787: In civil cases in CA, you can neither cross-examine nor bring in extrinsic evidence of specific instances of conduct

2)But in CA criminal cases, you can both cross-examine and bring in extrinsic evidence of specific instances of conduct in order to impeach, subject to CA § 352 balancing test
How is the CA approach to impeachment by prior inconsistent statements different from teh FRE approach?
Majority Federal Rule: MUST present extrinsic evidence of prior statement while the witness is still on the stand.


CA Approach to Prior Statements:
--CEC 770 = goes along with the minority view: as long as witness is still available, can present extrinsic evidence (before she leaves or after she leaves the stand ok).
Impeachment: Prior Crim Conviction

A) Dishonest Crime
Admitted w/o 403 balancing:
The crime does not have to be a felony
Impeachment: Felony w/in 10years

Felony 10years+
W other than accused: Yes +403 balancing

W is accused: yes if PV>prejudice



10 years+
Probative value>>>>Prejudice