Tuesday, December 3, 2013

FRE 405 Question


criminal defendant is on trial for murder, asserts self defense. Defendant offers evidence of his peaceful character as part of his defense (404 (a)(2)(A)) via witness x testifying to his peaceful reputation. (405 (a)) On cross prosecutor asks witness "did you know defendant was convicted of aggravated battery last year?" If witness answers "no" can you introduce evidence of the defendants conviction (extrinsic evidence)?
Or are you stuck with the answer like under 608(b)?
Does it depend on whether his conviction is collateral?

I am confused about how 405 and 608 interact in this scenario and which rules are implicated. 

No, you cannot offer other evidence of the conviction (presumably the J&C order). The reason has nothing to do with 608(b), which has no role to play here. This is substantive evidence rather than credibility evidence and is about peacefulness rather than truthfulness. Instead, this is about the text of FRE 405(a) and the precise relevancy of this evidence.

First, look at the text of FRE 405(a)--"On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct." This "allow an inquiry" language is similar to the language in 608(b), which allows you to ask the witness about specific instances of conduct, but go no further.

But remember what you are doing here in asking about the conviction. You are trying to rebut the strength of the witness' opinion as to the defendant's character for peacefulness (which, again, is substantive evidence), here by showing that the witness does not know the defendant well (since he did not know about the conviction), thus his statements that the defendant has a reputation as peaceful is questionable. To prove that, it is enough for the witness to say he did not know about the conviction (assuming you have a good-faith basis for believing he was convicted and thus for asking the question). It is not necessary to show that the defendant actually was convicted.

Final Exam Information

This is your in-class Final Examination. It will be administered on Wednesday, December 4, 2013. Because this exam is being administered to two different classes and because some students take exams at different dates or times, you must ensure that you do not discuss the exam with, or around, anyone who has not already taken the exam. If you take the exam at some later point, you must ensure that you do not discuss the exam with anyone until you take it. When in doubt, don’t talk about it.
The exam can be taken either on computer using ExamSoft or in blue books.
The exam has two parts. Part I consists of 25 Short-Answer Questions, worth a maximum of three (3) points each. Part II consists of 5 Multiple-Choice Questions, worth two (2) points each. The exam will be worth eighty-five percent (85 %) of your final grade.

A Note on the Hypotheticals:
The basic factual scenarios all are taken from actual cases; most underlying real-world facts and procedural and evidentiary issues are real, with some slight elaborations or changes. One case scenario/fact pattern often covers multiple questions, as indicated. When this is so, the introductory paragraphs present the basic factual and procedural situation; those facts apply to every question arising from that scenario. Subsequent questions may add additional facts or procedural issues relevant to the issue being tested in that question.
Some questions also may cross-reference the facts of a prior question (e.g., Question # 17 may ask an additional question as to a motion discussed in Question # 16).
All cases are in federal court or in a state court governed by rules identical to the Federal Rules of Evidence. Names are tied (in obvious ways) to the role someone plays in the Hypo. Thus:
   Name begins with P: Plaintiff (civil)
   Name begins with D: Defendant (civil or criminal)
   Name begins with V: Victim
   Name begins with W: Witness who testifies at trial (may be multiple)
   Name begins with C: Character in the underlying real-world drama who will not be a witness
   Other characters (police officers, bystanders, etc.) are indicated at such
Read the facts carefully. While some are detailed, the questions and issues to be drawn out of each question are straightforward; don’t go looking for hidden balls. All necessary facts are provided; if some fact is not provided, that means it is not necessary to the analysis. You may draw appropriate conclusions from the absence of a fact. Do not assume facts.

Approaching Short-Answer Questions
You may write up to 100 words on each question. That is an intentionally wide figure to give you maximum room to write, although you probably will not (and should not need to) write that much on any question.  Save your words and avoid throat clearing; jump right into your answer, as you would in making an oral objection or argument at trial.

Answer each question in a separate paragraph, clearly identifying the question being answered at the start (write the question number in bold above the paragraph--e.g. Question 1). In a parenthetical at the end of each answer, state the number of words in that answer. If you are using ExamSoft, you can do this by highlighting the paragraph and doing “word count” for just the highlighted portion. If you are handwriting in bluebooks, you must manually count.

Each answer should be concise, brief, and direct. A good answer will identify and briefly state the applicable rule (or relevant portion of the applicable rule) and apply it to the facts at hand to produce a conclusion with a short explanation. The questions lend themselves to short, quick answers, as if you were making, responding to, or ruling on an evidentiary objection at trial. Answer only the question asked. Note that questions will ask you to play a particular role--Proponent, Opponent, or Judge.

Approaching Multiple Choice Questions
Approach each question as if it were a short-answer question. Read the question as well as the answer chocies to get a sense of what issues/doctrines and facts are involved in the case; note that some questions ask you to put together several different doctrines or issues (e.g., whether something satisfies the FRCP and the jurisdictional statute).  Then work through the relevant analysis as if you were outlining/organizing an essay (you may write notes or an outline on the exam or on your copy of the FRCP), applying the legal rules to the facts in the hypothetical, to identify the correct option. You may find yourself working through the analysis just to establish that it is not the correct answer.
Read the questions and options carefully. Sometimes the question requires you to pick the option not only with the correct result, but also the correct reasons for that result. Some questions ask you to identify the one option that would not be correct or permissible under the rules. Some questions ask you to identify the best response from among several possible options. Some questions ask you to assume a particular role (proponent of evidence, opponent of evidence, judge). Some questions ask you to apply distinct doctrines (Hearsay and Relevancy or Hearsay and Confrontation).

Clearly indicate the Question # and letter answer on your computer sheet or bluebook.

You may bring to the exam your copy of the Federal Rules of Evidence. Printed copies of relevant statutes will be provided. No other materials may be brought to the exam or used.

Academic Policies and Regulations:
This examination is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook.  Students are expected to be familiar with and to conduct themselves in accordance with those policies and regulations.
Good luck.

Monday, December 2, 2013

FRE 407


If Plaintiff brought a personal injury action against the defendant, the owner of a small fishing resort, for injuries he suffered when the dockside chair he was sitting collapsed. at trial, the plaintiff testified that he had reported to the defendant the previous day that one of the chairs had a loose leg, whereupon the defendant tightened the screws holding the legs to the chair body,  but the next day the repaired leg of the chair collapsed while the plaintiff was fishing from it, injuring him. the plaintiff now wishes to offer evidence showing the defendant had attached a new chair leg after the accident

I can see how  the attached new chair leg cannot be offered as evidence for public policy reasons (407). But what about the fact that Plaintiff told the Defendant the previous day about the loose leg on the chair, can that be offered into evidence?

But, in fact, this would not be kept out under FRE 407. There was no earlier injury or harm, so this is not a subsequent remedial measure. A problem was reported (before it caused injury), there was an attempt to fix it, and that attempt failed. The negligence is both the original loose leg and the ineffective attempt to repair the leg. So both reporting it and the attempt to fix it are admissible to show negligence.

Prior Inconsistent Statements

Under 801(d)(1) of a Declarant-Witness's Prior Statement, one of the requirements is that the prior inconsistent statement must have been made under oath.  Does this mean that if you are using the PIS for impeachment purposes that the PIS must have been made under oath or that a PIS made under oath just means that it is entitled to substantive treatment?
The second one. If the statement was made under oath, it can be brought in for the truth of the matter asserted. If not under oath, it cannot be brought in for the truth of the matter, so it can only be used to impeach (which does not depend on T/M/A).

Sunday, December 1, 2013

Several more answers

If on cross examination you inquire as to that witness's prior conviction of perjury, a crime of untruthfulness, and they deny the conviction may you bring extrinsic evidence to prove the conviction?
If yes, is it true that only the fact that the conviction occurred comes in while the details of the crimes as excluded?

Yes, you may bring in extrinsic evidence, usually the J&C order. The only fact being shown is that the witness was convicted of that crime.

If a person takes a picture of inscriptions on a tombstone or a license plate number on a vehicle, do these fall outside of the definition of hearsay because they are merely markers or do they fall under some other exception?

This is not hearsay because not statements. These are verbal markers--words marking or identifying the object.

In a slip and fall can the plaintiff introduce specific instances of prior slip and falls in the same place to prove they were on notice of the dangerous condition (since this is not character evidence under 404 since it's purpose isn't to prove action in accordance)? Also, can the defendant say that there were no specific instances of prior slip and falls? 

Yes. This is a common use of FRE 404(b)--other acts to show knowledge. Note the 104(b) conditioning fact that is necessary--the other acts are relevant only if the store (or someone in authority for the store) knew about those prior instances.

Saturday, November 30, 2013

Character evidence clarified (we hope)

Character evidence in a civil case can come in only under 404(b)(2). Because the other act is a specific instance of conduct, does that mean the character evidence can come in only if character is an essential element under 405(b)? And not under 405(a)?

 Let's start from the beginning and hopefully we can put everything together.

"Character evidence" means only that the evidence is used to show action in accordance on a particular occasion (either "A is a ___ person, so infer he acted that way at the time in question" or "A has done X in the past, so infer he did X at the time in question"); if the evidence does not depend on the action-in-accordance inference, it is not "character evidence."

So where do we go from here?

1) Character evidence (as defined) is generally not allowed (FRE 404(a)(1)). Other acts to show character to show action in accordance is generally not allowed. (FRE 404(b)(1)).

2) Character evidence (as defined) is allowed in criminal cases only, when it is a pertinent trait of the defendant or the accused. (FRE 404(a)(2)). If character evidence is allowed, it is proven in the manner described in FRE 405(a).

3) Character evidence (as defined) is allowed for witnesses in all cases, pursuant to the requirements of FRE 608 and 609. (FRE 404(a)(3), cross-referencing 608/609).

4) Evidence of other acts is admissible in all cases for purposes other than showing action-in-accordance. Most notably, it can show the enumerated uses in FRE 404(b)(2).

5) In the (extremely rare) cases that character is an essential element, this is not character evidence (as defined) because the character trait is not being used to show action in accordance. The character trait is being used to show the character trait itself, which has been made relevant under applicable law. Again, there are very, very, very few cases that this touches. In one of those rare cases, FRE 405(b) comes along to tell us a party can prove the character trait by reputation, opinion, or specific instances of conduct. But this does not run afoul of the general prohibition on character evidence, because, again, this is not character evidence (as defined as showing action-in-accordance).

The difference can be seen by thinking about why defamation is usually not an example of character-as-essential-element. Jessie alleges that Ross told the Country Club that she had stolen the brooch. That has nothing to do with Jessie's character; Ross did not say anything about her character, but about how she acted on a particular occasion. Showing his statements to be true has nothing to do with her character, but with whether she acted some way on a particular occasion. So to offer evidence of her character (or prior acts) would rely on the forbidden character inference--evidence of her character trait to show how she acted on a particular occasion.

Friday, November 29, 2013

804(b)(1) Question

For R 804(b)(1)(B), in a criminal case, the party is always going to be the government. So for the rule, the party against whom the evidence is always going to be the same defendant versus the government. But in order for either to have the opportunity and similar motive to develop testimony, wouldn't it have to be the same case? Or at least a related one? I'm just not sure how that would work for the rule.

You're right that it often will be the same case or related cases. But that is going to be true in civil cases, as well. Because someone must have been a party to the case to have had a motive and opportunity to cross.

Imagine the following situations.

1) State prosecutes A for some crime. X testifies at trial and says Z did the crime. Just after A's trial, X dies. State now prosecutes B for that crime. B wants to use X's testimony from A's trial (implicating Z). B can use this because State had an opportunity and motive to cross-examine X at the first trial.

2) State prosecutes A and B for a crime; A testifies and implicates B. A is convicted the jury is hung as to B. A dies in prison. The State re-prosecutes B and wants to use A's testimony from the first trial. Since B had an opportunity to cross A at the first trial, this is allowable.

3) A v. X in civil action arising from train crash. W testifies at trial in a way adverse to X. B v. X in civil action arising from same crash; before trial in the second case, W dies. B now wants to use W's testimony. Again, did X have a chance to cross in the first case? Yes, so this should be ok.

4) Same as # 3, except W's testimony is favorable to X. X now wants to use it in the second trial. Because B never had an opportunity to cross W in the first trial (because A was not a party), this would not be OK.

612 and 803(5)

I was going thru the difference between 612 and 803(5), I wanted to make sure I have it right. For example,  in a civil case P sues company X for damages he incurred from a nuclear irregularity that released radiation. A radiation expert testifies at trial for P. The expert cannot remember the details of the notes he made. After reviewing his notes he testifies from memory.  This is admissible under 612 given that the notes are available to the opposing party so that the party may inspect the notes, cross examine the witness about them and introduce the evidence the portions relating to the witness' memory.  But if D wants to use the notes  for substantive purpose it is hearsay because its offered for the truth of the matter asserted. So it has to  go thru a hearsay exception (803(5)) or (803(6))? If D just wants to use it for impeachment purposes, it can do so only under 612, during cross examination for example?

The rules work in tandem. FRE 612 allows you to use a writing to refresh recollection. FRE 803(5) establishes requirements for the writing that you are using to refresh recollection; it must be satisfied if the witness is going to read the report or other writing. If the writing can come in under 803(6) (or 803(8)), there is no need to go through refreshing recollection; you can introduce the record itself and it comes in as an exhibit for its truth. If the report is being offered not as the basis for testimony but to contradict that testimony (or show a prior inconsistent statement), then it isn't offered for the truth and so is not hearsay.

Thursday, November 28, 2013

More Answers

What is the best way to tell if a question is a 104(a) or 104(b) question?

Look to the text of both rules and what you are trying to figure out. If you are trying to figure out whether a piece of evidence is admissible (that is, whether a piece of evidence fits the requirements of a particular rule governing admissibility), whether some evidence or witness is governed by a privilege, and whether a witness (notably an expert) is qualified, you use 104(a). You use 104(b) when the relevancy of some evidence depends on some fact being true--that is,  the inferential chain from the evidence to the fact of consequence only works if some fact is true.

The target witness is the defendant, Tim. He takes the stand so his credibility is relevant.
After he leaves the stand, the Prosecution calls a character witness, Carly, who attacks Tim's character for truthfulness via reputation or opinion testimony.
Now, since the Carly has taken the stand her credibility is relevant. 

Is it correct that the defendant can cross examine Carly (with the judge's discretion) by inquiring to specific instances of Carly's own untruthfulness pursuant to 608(b)(1) so that the jury doesn't believe that her testimony is truthful?
Also, is it true that the defendant can cross examine Carly by inquiring to specific instances of Tim's truthfulness pursuant to 608(b)(2) so that the jury doesn't really believe she knows Tim all that well?
This is exactly correct on all points and exactly how 608 works. One tweak--the cross-examination of Carly about specific instances of Tim's untruthfulness is admissible not only to show that Carly doesn't know Tim, but to show that Tim is an honest person and thus a credible witness.

If Z testified (for party X) saying: I heard X tell Y "do not drive my car" and this was offered as proof that Y was not given permission to take the car, would this be hearsay?

No. It's a command, not a statement because it does not assert anything about the world. You are drawing an inference--Y did not have permission to take the care--from that command.

Wednesday, November 27, 2013

So many questions

To satisfy Rule 609, under 104(b), it must be true that the defendant pleaded guilty or that the defendant was convicted. The Defendant can rebut this by showing that he was convinced to plead guilty or by maintaining that he is innocent. However, this would only go to the weight of the evidence, not its admissibility. Is this correct? 


If there is a specific instance that resulted in a conviction, I could use Rule 608(b), which allows me to get into the details of the underlying facts (without mentioning the conviction= extrinsic evidence). I could also use Rule 609. My question is: in a situation where both rules would apply, do I have to pick one or the other, or can I use both rules?  Or, do I start with 608(b) –questioning the Witness about the details of the conviction. If the Witness denies it, under 608(b), I would be stuck with the Witness’ answer because I cannot introduce extrinsic evidence. However, at this point I can introduce the conviction order under 609 to impeach. I could also impeach by contradiction. Is this correct?

Correct. The key is that the precise relevancy--the precise way in which you are attacking the witness' credibility--is different under the different rules. Note, however, that 608(b) and 609 overlap only if the crime of conviction is one involving untruthfulness, which may mean false statement (and not mere dishonesty).

     Jack Ripper is on trial for murder. Ripper offers testimony by Hugh, who says that Ripper is known in the community as nonviolent, peaceful person. The prosecution puts on the stand a rebuttal witness. Elizabeth, who attempts to testify that if Ripper has a good reputation, the reputation is ill-deserved because Ripper was previously convicted of Mayhem. Ripper Objects. How do you rule under FRE?
        Explanation: objection sustained.  under the mercy rule, the defendant in a criminal trial may offer pertinent character evidence in the form of reputation or opinion testimony to prove his innocence. after he does so, the prosecution may cross-examine the character witness and in doing so may inquire into relevant specific instances of conduct. Thus, the prosecutor could have asked Elizabeth on cross, didn't you hear that Ripper was convicted ofMayhem?

 Alternatively, once the accused uses the mercy rule, the prosecution may put on substantive rebuttal evidence (404(a)(1). but FRE 405 (a) says that this evidence may be retain or opinion testimony; by negative implication, the rebuttal may not be specific instances of conduct.

That is correct. Specific instances of conduct to show character only may be asked about on cross, never on direct. So the prosecution can a) ask the character witness about specific instances (which is really serving to undermine the witness's opinion) and/or b) Call a different witness and ask about reputation/opinion.

For impeachment purposes under 613(b), extrinsic evidence is only allowed if the witness is given a chance to explain or deny the statement, as per the rule. Thus, would this be the only method of impeachment that by default is collateral? 
Not quite. FRE 613(b) applies only to impeachment by prior inconsistent statement. And it does not render extrinsic evidence admissible. It only requires that the witness be given a chance to explain the prior statement.

Also, just to clarify, rule 608 does not apply to criminal defendants, since the governing rule would be 404(a), correct?

Not quite. The connection between 404(a) and 608(b) was covered in a post yesterday. The rules cover evidence used to prove two different things--404(a) is about character traits to show how someone acted in the rule world; 608(a) is about one character trait--truthfulness--to show whether someone is credible as a witness only if the defendant testifies. So they cover different spheres. At times both are in play, at other times only one or the other.

Now please stop thinking about Evidence for a few minutes and enjoy Thanksgiving and, for those of you celebrating, Chanukah.

Q&A Review Sessions

Will be in RDB 2006 on Tuesday, November 3. Because of some other stuff going on, we're going to split it in two: One will be from 10:30-12, the other will be from 1-2:30. You may attend either or both.