Tuesday, November 29, 2016

Sexual Assault Victim and Truthfulness

In a sexual assault case, the victim is on the stand.

In the past the victim has accused 5 different men of rape and all have been acquitted.

Defense wants to ask her on cross about those accusations for the purposes of showing that she is untruthful.

I'm assuming 412 would bar an inquiry into the specific instances surrounding the individual accusations, but an inquiry into the existence of the accusations and acquittals would seem to have 608(b) issues.

Because it is cross examination, the defense should be allowed to ask about those instances, yes?

However if she testifies that she did not falsely accuse 5 people, is the defense stuck with that answer? Can they ask another witness about the accusations? Can they introduce the charging document? If she sued these men in civil court, can those pleadings be introduced?
It would seem that the victim/accuser's truthfulness is a non collateral issue. 
A lot to unpack here.

First, this evidence is not barred by 412, because prior false accusations of sexual assault are neither "other sexual behavior" nor "sexual predisposition" under 412(a).

If you are trying to use the prior accusations for substantive purposes (to show that the current allegations are also false and that the defendant is innocent), they are "other acts" for which you have to get past FRE 404(b). You cannot use them to show she is lying--that is action-in-accordance--so you look for a permitted 404(b)(2) use. The acquittals make be sufficient to support a finding that the prior accusations were false.

Alternatively, you can use these as specific instances of untruthful conduct on CREX under FRE 608(b) (the court can decide they were lies, since the defendants were acquitted). But if the victim denies the false accusations, you are stuck. Because character for truthfulness remains collateral.

To your last point: Character for truthfulness is always collateral. Even when it is the complaining witness in a criminal case.

Answer: Burdens of Production

In a civil case, if the initial Burden of Production is on plaintiff and after the plaintiff's case-in-chief they shift the Burden of Production to Defendant, is Defendant not allowed to raise the 50(a) motion after the Plaintiff's case-in-chief?  

Correct, Once the burden shifted, it was no longer the case that "reasonable jury would not have a legally sufficient evidentiary basis to find for" for the plaintiff. (FRCP 50(a)). Quite the opposite--shifting the burden means a reasonable jury must find for the plaintiff, unless the defendant carries its new burden of production.

Note that this only goes for the fact or issue on which the burden of production shifted, but not for other issues the plaintiff must prove. So, if Mrs. Young must prove that 1) Jerry is dead and 2) she is a beneficiary under his insurance policy, the burden does not shift as to issue # 2, so defendant still could move for J/M/L on that issue (and thus on the claim).

If the Plaintiff shifted the Burden of Production, Defendant can only raise the 50(a) after Defendant has been fully heard?

Correct--which would be at the close of the defendant's case-in-chief.


Sunday, November 27, 2016

Verbal Acts

When we say a statement that is a verbal act (has independent logical/legal significance, verbal markers, implied assertions) is not hearsay, is that because it is not an assertion under 801(a) or because it's not used to prove the truth of the matter asserted in the statement 801(c)(2)?

It depends on what it is, what was said, and what it is being used for. Many verbal markers are just names ("Starbucks"), which are not statements. But not always--consider a t-shirt with "The U Invented Swagger", which is a statement, although not T/M/A if just trying to describe the wearer. Statements having independent legal or logical significance often are statements, just not offered T/M/A--the woman shouting "I'm alive" when trapped in the car" or the racial harasser saying "That outfit is too ethnic looking."

Saturday, November 26, 2016

More Hearsay Questions

(1) Lets say that Joe is on trial for the murder of Leslie. The prosecution wants to bring forward evidence of a past act between Joe and Leslie where Joe and Leslie got into a physical altercation. 

Lets say that the evidence is going to be admitted under 404(b)(2) as motive. 

Now, that this past act is going to be admitted, the defense calls the nurse to the stand to testify to Leslie's statement when she got to the hospital she said " I started it," " I was the first aggressor." In an attempt to now undermine the past act evidence that is coming in. 

Going through the hearsay rules and trying to see everything it could be brought under I have a question regarding 801(d)(2)(a): 

For purposes of 801(d)(2)(a): would Leslie being a "victim" be an opposing party? Or, would that not apply here because this is essentially being offered "against the prosecution"? 

Or is this rule limited to the  Prosecution bringing in a statement of the defendant and then in civil any party? 
The victim of a crime in a criminal case is not a party, so the victim's statements cannot come in through 801(d)(2).
This statement should come in under 804(b)(3) as a statement against interest--in admitting that she was the first aggressor in a physical fight with Joe, Leslie is potentially "expos[ing] [herself] to civil or criminal liability." And she is unavailable because of death.

Friday, November 25, 2016

Hearsay and 701

If the prosecution calls the usher from the movie theater to the stand and he testifies that he overheard Quinn's conversation with Joe, in which Quinn said,"what are you doing Leslie, she is afraid of you Joe" 

Hearsay objection: 

Now, the prosecution calls Quinn to testify to the same out of court statement that was said to Joe. 

Before even getting to the hearsay problem with this, would this also be a FRE 701 problem, because a witness cannot testify to something they cannot rationally perceive, here, Leslie's stand of mind?  ( which is probably why this is being introduced)
No need to draw the sharp distinction because they are not mutually exclusive. So argue both.

And note the connection. witness cannot testify to someone else's state of mind, in part, because of the prohibition on hearsay. There are two ways the witness could know someone else's state of mind: 1) The other person told her--which is rationally based on perception, but barred by hearsay, or 2) The witness knows herself, which cannot be based on perception, so is barred by 701.

More Hearsay

Would testimony of a license plate offered after an accident to prove that the car involved was the one with that particular license plate be considered hearsay since it is technically offered for T/M/A? Or would this just be a verbal marker? 

This is precisely what a verbal marker is--words/letters as a descriptive/identifying feature of an object.

And note that if you are trying to show this was the car in the accident, it is not offered T/M/A. Because the license plate does not assert "I was the car in the accident." The plate asserts "SDZ 675" or "ABT TH U". You are inferring from those letters that this is the car from the accident.

Wednesday, November 23, 2016

Hearsay Question

Assuming Jesse is on the stand, and she states that "I told Ross that 'I amsensitive' in the past." And this is being offered for the purpose to show that Ross knew she was sensitive, thus he acted maliciously.
Is Jesse's statement considered hearsay? It is an out-of-court statement offered for the TMA, but since it is HER testifying about it, wouldn't that have sufficient guarantees of trustworthiness to not be hearsay?
It is not hearsay, but not for the reasons stated.
That the declarant testifies does not remove all hearsay concerns or necessarily give sufficient guarantees of trustworthiness, except in the three situations identified in FRE 801(d)(1) (prior inconsistent statement, prior consistent statement, and statement of ID). Recall the many problems we worked through in which the witness testified to her own statement. Yes, the declarant can be subject to cross; but the out-of-court statement cannot be.

The reason this is not hearsay is that, if offered to show Ross did not act in good faith, the statement is not offered for the truth of the matter asserted. A jury could find that Ross was unreasonable in accusing her of stealing based on her reaction on Sunday morning, so long as Ross believed she was sensitive. And Ross can believe she was sensitive based on Jesse telling him so, even if it turns out that she is not, in fact, sensitive. This is the classic example of a statement not offered to show its truth (that Jesse is sensitive), but to show its effect on the listener.

Tuesday, November 22, 2016

First Question of the Exam Season

If you are trying to impeach a witness through a PIS, the prior inconsistent statement is not being offered for T/M/A, as we don't care which statement is true, rather just that that what they said today on the stand is inconsistent with what that particular witness said in the past thereby affecting the witnesses credibility. 

Does that same rationale apply when we we are impeaching by contradiction? If for example, the contradiction evidence takes the form of a Judgement of Conviction  ( provided you can complete the impeachment by extrinsic evidence), which may be asserting something, are we still not offering the judgement for the t/m/a? 

Do we still not care which one is true, but rather just concerned with the fact that they said X, and and other evidence shows not X, and thus they are not a credible witness? 
It depends on what the evidence is and how it contradicts. But in many cases, there is only a contradiction between the testimony and the out-of-court statement if the out-of-court statement is offered for the truth of the matter asserted. Take your example: W denies being a drug-dealer. Prosecution offers the J&C order from his drug-dealing conviction as contradiction. The order is hearsay for that purpose--it must be true that W was convicted of drug-dealing (and that he did those underlying acts) in order for it to contradict his testimony denying being a drug-dealer.

The difference between this and prior inconsistent statement is that P/I/S is established simply because the witness said two different things. Contradiction is different.

Monday, November 21, 2016

End of Semester

Final class audio.

The Q&A Review Session will begin at 10:30 a.m. on Tuesday, November 29 in RDB 2008. Come armed with questions. We will stay as long/short as people have questions.

If you have questions at other times, email them to me or post them to the blog. I will answer all questions on the blog, for everyone's benefit.

Have a good holiday.