Evidence Law 1; Relevance, Impeachment, And Other 400 Rules

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Evidence Law - Overall

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- POWERFULLY inclusionary, tilts toward letting the evidence in.

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104

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a: Used by judge to answer preliminary question (qualifying a witness, if privilege exists, or evidence admissible). Preponderance of the evidence (51%); more probable than not.

b: When relevance of evidence depends on a fact existing, proof must be introduced "sufficient to support a finding" that the fact does exist. (25%-ish; reasonable person could find that evidence might exist) JUDGE SCREENS RELEVANCE AND ADMITS IT FOR JURY TO DETERMINE PROBATIVE WORTH; conditional relevency

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Relevancy: 402

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All relevant evidence is admissible, except as otherwise provided by the rules of evidence.

- ("There is only one rule of evidence - relevant evidence is admissible - everything else is exception.")

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Relevance: 401

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Evidence is relevant if it has ANY probative value on a material ultimate fact (something that makes the fact MORE or LESS probable)

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Relevance: 403

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BIGGEST Exclusion: Evidence MAY be excluded if its probative value is outweighed by unfair prejudice (or other harmful effect)

- TC judge does it and reviewed for "abuse of discretion" (very high std)
1) assess probative value
2) assess undue prejudice
3) balance to see if prejudice "substantially outweighs" the probative value
(even if it does outweigh a little you can let it in and give a limiting instruction to the jury on how to use it)

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Relevance: 403 - What can outweigh probative value? MUCWUN

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- Misleading the jury
- Unfair prejudice
- Confusing the issues
- Wasting time
- Undue delay
- Needlessly presenting cumulative evidence

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Competency of Witnesses: 601 (PR/CT)

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Judge decides if witness has capacity to:
1) Accurately Perceive
2) Recollect to facts
3) Communicate (understand questions and give answers)
4) Duty to speak truthfully (understand obligation to tell the truth)

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Evidence Law and the Contstitution

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If a CRIMINAL case some instances where evidence law is unconstitutional as it invades on defendants constitutional rights somehow.

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Testimony of Juror about the Verdict: 606 (PI)

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Juror CAN'T testify about "deliberate process" (how it got to decision)
- but CAN testify as to "external influences" (juror bribed, or looked at scene of the crime on their own)

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Impeachment of a Witness (607)

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Attacking the witness' credibility (to prove they testified untruthfully - or not to be trusted somehow)

- 607; Credibility can be attacked by ANY party (careful of smuggling in inadmissible hearsay evidence as "impeachment evidence" - but some hearsay does come in to impeach rather than to prove TOMA)

- C/L; couldn't attack own witness

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Related Impeachment Rules: RBD

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- Rehabilitation; allowed after witness impeached
- Bolstering credibility; not allowed before impeachment (wastes time)
- Diffuse anticipated impeachment; allowed

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Impeachment Methods: BP/MAC

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- Bias/Interest/Corruption
- Prior inconsistent statement
- Mental Condition
- Attacking character
- Contradiction

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Impeachment Method: Collateral fact

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Fact that cannot come into evidence in any other way - distant and distinct from the case. Avoided so as not to 1) surprise the other party and 2) to avoid confusion of the issues (side issues).

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Impeachment Method: By Contradiction

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The "Collateral Issue" Rule: Lie about one thing showing that he lied about something else.

RULE: You CAN'T impeach a witness by contradicting him with a collateral fact (fact that couldn't come in any other way - distant and distinct) because
1) must prevent unfair surprise
2) to avoid confusion of the issues
But you CAN impeach if noncollateral fact (fact that is closely connected and would be allowed in some other way)

EXCEPTION: Can contradict on collateral fact if you do it during a cross examination of the witness - have them bring it up then impeach. No surprise, no side issues.

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Impeachment Method: 3 Types of Attacking Witness Character (C/OR/BA)

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- Prior bad acts
- Prior convictions
- Opinion and reputation evidence (of character)

(806 provides that these methods of attacking a witness are ALSO available for attacking a declarant (speaker of hearsay) for their out of court statement - if they're dead you or SOL)

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Impeachment Method: Attacking Witness Character - Prior Convictions (609)

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CAN introduce extrinsic evidence of prior convictions to impeach witness' credibility, but not beyond conviction (to victim etc...)

- General Witness: ANY prior felony (whether towards truthfulness or untruthfulness or not) subject to 403

- Accused (D) as Witness: " " subject to 609 judicial discretion (tilt towards exclusion)

- BOTH impeachable for prior conviction of crime involving dishonesty or false statement (crimen falsi) - always comes in, probativeness is so high
1) THEFT
2) PERJURY
3) FORGERY

- Older than 10 years, exclusionary rule. Not usually allowed, too far removed.

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Impeachment Method: Attacking Witness Character - Opinion and Reputation Evidence of Character (608(a))

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Credibility CAN be attacked by opinion or reputation evidence BUT
1) Evidence may refer only to character for TRUTHFULNESS or UNTRUTHFULNESS
2) Admissibility of TRUTHFUL evidence only AFTER character of the witness has been attacked (bad before the good - otherwise a waste of time)

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Impeachment Method: Attacking Witness Character - Prior Bad Acts (608(b)(1))

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NOT ALLOWED extrinsic evidence of prior bad acts to impeach UNLESS:
- You do it on cross without extrinsic evidence if probative of truthfulness or untruthfulness
- Ex. want to show that a witness is a liar by showing they have prior bad acts (lied) in other situations; can do it by asking them about it on cross, but no extrinsic evidence. If they say "no" about the impeachment question then the buck stops there. No SIDE ISSUES.

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Impeachment Method: Prior Inconsistent Statements

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- CAN be used for impeachment so long as it is 1) inconsistent and 2) lay a foundation (tell the witness the stmnt and give chance to explain - can happen after other witness testifies of the inconsistency)

- Relevance: Talking one way on stand, then another way on stand raises doubt

- Inconsistent: IF - derive from two different perceptions, not necessarily opposite

- If stmnt in a writing:
1) Trad; writing must be shown to witness,
2) Modern; can get them to deny stmnt, then admit

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Impeachment Method: Prior Inconsistent Statements and Hearsay

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Trad: Can't use it for substance through hearsay (only impeachment)

Modern 801(d)(1)(a): Prior Statement by Witness is NOT hearsay if the prior stmnt was made UNDER OATH (in Kentucky you don't have to be under oath)

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Prior CONSISTENT Statment (for rehabilitation)

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1) Only to rehabilitate
2) Only to rebut claims of "recent fabrication" or "improper motive"
3) and only if Stmnt made before motive was "born"
(hearsay exception as to substance of statement - but this is only credibility of witness)

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Impeachment Method: Impeach for Bias, Interest, or Corruption

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Defined: Is this a relationship between party and witness which might lead witness to color their testimony to favor one party or the other?

CAN come in but governed by 401-403, must be more probative than prejudicial (which it often is).

Examples:
1) Bias - PO testifying against war demonstrator, witness who regularly made racial slurs
2) Interest - witness for state awaiting sentencing (from state)
3) Corruption - witness for defense had settled a case with the defendant, or in civil case witness for STATE has claim against defendant
4) Expert witness - amt of compensation (testifies mostly for one side or the other)
5) witness is relative or friend, witness been bribed, witness been granted immunity

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Impeachment Method: Mental Condition

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CAN introduce to impeach credibility as long as directly/specifically connected to witness' ability to PR/CT.

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Character for Substance: Explained - 404(a)

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- Not in civil case EVER unless it looks like an intentional criminal case (fraud, wrongful death, assault, battery); definitely NOT if for negligence or non-intentional tort

- CANNOT use character for substance; to prove the DOING or absence of doing an ACT (not witness credibility but defendant substance)
- example; accused introduces evidence of reputation for honesty to show ABSENCE of theft
- example; prosecution introduces evidence of reputation for dishonesty to prove DOING of theft (through character for dishonesty)

- Prior bad acts and prior convictions NOT allowed here

- Evidence of general moral character is not allowed, must be PERTINENT trait of character (i.e. - can't say, Reputation for honesty means he was honest means NO assault (honesty not pertinent to assault)

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Character for Substance: Exception/Michelson 404(a)(1)

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Michelson: (CRIMINAL CASE)
1) State cannot use it during CASE IN CHIEF
2) Defendant CAN use it (to prove evidence of good character by calling witnesses to stand for opinion or reputation - NOT particular act after proper foundation laid) and
3) State can REBUT by own witnesses or cross examination of defense' character witness (CAN ask about particular bad acts as they are not used for substance but credibility of character witness - no extrinsic evidence)

405(a) - allows opinion and reputation evidence by CHARACTER witness but NOT particular acts.

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Character of Victim in Criminal Case (Self-defense) - 404(a)(2)

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Only relevant in:
1) Rape cases where consent is defense (Rape Shield Laws - 412)
2) Claim of Self-defense (Victim was 1st aggressor)
a) State can't bring evidence of good character (convicted for WHAT D did, not who to)
b) D can intro evidence that V had violent character (reputation, opinion, NOT particular acts)
c) State can then rebut

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Character in Issue: 405(b)

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- Very rare

- Person's character or trait admissible if it is an ESSENTIAL ELEMENT of a charge, claim or defense (slander/negligent entrustment - lending car knowing driver careless)

- all three types allowed (opinion, reputation, particular acts)

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Evidence of Other Crimes, Wrongs, or Acts: 404(b) (propensity evidence)

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- NOT allowed to prove D's propensity to commit the crime charged!
- D killed X and Y ----> D killed V

- HYPO: Cleaning gun and shot wife; witness says he shot at her before
1) Not allowed for substance: State can't intro D's bad character - only for rebuttal with opinion and reputation (this is particular act - not allowed)
2) Not allowed as propensity: You shot at wife before so you killed her intentionally this time - cannot use evidence of other C,W,or BA to prove the charged offense
3) maybe for non propensity (absence of accident)

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Evidence of Other Crimes, Wrongs, or Acts: 404(b) (non-propensity evidence uses)

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- Evidence of other C, W, or BA admissible if:
a) proof of motive
b) intent
c) absence of accident or mistake
d) identity
e) common scheme/modus operandi and
f) others

- Three tier inquiry:
1) Is the "other crime" for some proper, non propensity purpose?
2) Is their "evidence sufficient to support a finding" that D committed the "other crime"? Can come in even if charged and acquitted because standards are different (conditional relevancy standard - lower than proof beyond a reasonable doubt)
3) Apply 403: probative value not substantially outweighed by prejudice
(abuse of discretion standard)

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HABIT - 406

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- Using habit to prove doing or absence of doing of an act (like character for substance but not general - specific act); ADMISSIBLE

- Habit: "a repetitive response to a repeated particular situation" (smoked weed daily, so did it that day. never blew whistle, didn't that day. served drunk people regularly, did so that day. always give same instructions before tooth extraction, did it that time.)

- I obey rules of the road (too general); I always drive under the speed limit (maybe specific enough)

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Character of Victim in Criminal Case (Rape Case) - 412, 413, 414

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Trad: D claiming the victim consented could attack their character with evidence of 1) particular sexual acts or 2) victim's sexual disposition (chastity reputation)

Rule 412: Not anymore.
- Criminal case - No particular sex act or sexual disposition unless:
a) to prove third person was source of semen, injury, or physical evidence (proof they had sex so 3rd party could have done it)
b) evidence of past sexual activity with D
c) evidence that if excluded would violate D's constitutional right

- Civil case: evidence allowed if more probative than prejudicial (but EXCLUSIONARY)

413: D charged with rape can use evidence that he raped someone else. (propensity evidence that GETS IN)

414: D charged with child molestation you can introduce evidence that he molested another child. (propensity evidence that GETS IN)

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Other Similar Happenings - 406

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Dealt with using 401-403; Some judges use 404(b) and say it can't come in because of propensity. (non-propensity could come in subject to 403)

- Evidence can be let in to show negative entrustment; probative because the entrustment is at ISSUE.

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Subsequent Remedial Measures - 407

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Something went wrong, D fixed the problem after the fact, P is saying it is an admission of liability.

- Generally inadmissible; we want people to take the remedial measure for safety, not ignore it for fear of being liable if they fix it.

- Exception; Can be shown for some other admissible purpose (FIO):
1) Ownership/Control - Since D did the repair D was owner or in control
2) Feasibility of precautionary measures - (if D says precautionary measures were not feasible - then did them after the fact)
3) Impeachment - impeach an expert who said remedial measure wouldn't be helpful and then it was taken

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Compromise and Offers of Compromise - 408

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Can't use compromise and settlement talks to show admission of liability (want them to do this) - but could be used for other purpose (casting doubt on credibility of witness)
- Example: B gives C money for his truck and then see testifies favorably for B. Their settlement is allowed to show bias

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Inadmissibility of Pleas - 410

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- Is a party trying to introduce evidence of another party's criminal plea?
- Can't introduce evidence of a withdrawn guilty please OR a no contest please
- 803(22); in civil case felony (most states allow any level of) criminal conviction can be introduced to prove anything that was required for the conviction