After the jump. Note that this is one approach. I grade on analysis not conclusions. So, for example, there may be other permissible 404(b)(2) uses in Question # 3.
1) The objection should be overruled.
Every person is competent to be a witness. FRE 601. A “witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” FRE 602. That personal knowledge may consist of the witness’s own testimony. FRE 602. Hickey is testifying to events at the police station on December 14, 2016—events his testimony shows he witnessed first-hand, because he Burke was standing in front of him. His testimony is sufficient to support a finding he knows about the events of that day.
A non-expert witness can testify in the form of an opinion—an inference, characterization, or conclusion—if that opinion is “rationally based on the witness’s perception;” helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge, requiring the witness to be qualified as an expert under FRE 702. FRE 701. Witnesses cannot testify entirely to facts; they may draw inferences or characterize what they saw, which often is the only way to testify in a coherent way, unable to break human conduct or descriptions into component facts. (C&S 19-20). Those inferences must be based on logic, experience, and common sense off what the witness perceived. A witness cannot read minds or otherwise describe things he could not perceived.
FRE 701 allows Hickey’s testimony. He was in the room with Burke and observed what he said and his demeanor. Hickey heard Burke say “God dammit,” from which he can infer that Burke was “pissed,” a common description of events. Screaming characterizes how Burke spoke. And Hickey perceived Burke’s face and can describe the look in his eyes; “crazed” is a common description for a person’s angry appearance. Each of these characterizations is helpful to the jury understanding Burke’s testimony—it would be impossible for Hickey to break this down further and still have the jury understand what he is describing. And Hickey is not testifying as an expert, as he relies on his perception and not his specialized or technical expertise.
2) The court should overrule the objection.
Relevant evidence has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. FRE 401. One piece of evidence need not establish a fact; it must move the factfinder towards a finding that the fact is true or not. A fact of consequence is significant in light of applicable law. Relevant evidence is admissible unless another legal source provides otherwise. FRE 402.
Evidence of the contents of Burke’s “party bag” is relevant, as the contents of the bag make it more probable than without the evidence that Burke assaulted Loeb. Having stolen the bag from Burke’s car, the jury could infer Loeb knew about the contents of the bag; the sexual nature of the comments prompted Loeb to call Burke a “pervert.” Loeb calling Burke a pervert caused Burke to hit Loeb, as indicated by the immediacy between the insult and the assault, as Hickey describes. Whether Burke assault Loeb is of consequence to the action. The charges against Spota (witness tampering and covering up a violation of federal law) tie to his efforts to prevent Hickey and other witnesses from testifying about that assault, which violated Loeb’s civil rights.
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more concerns, including unfair prejudice. FRE 403. The balance strongly tilts towards admissibility—the default is that the evidence is admissible unless the probative value is substantially outweighed by the danger. “Substantial” outweighing requires low probative value and a high danger. In conducting this balancing, courts consider the probative force of the evidence, its importance and centrality to the case, the degree of confusion or unfair prejudice it creates, and whether a limited instruction under FRE 105 can reasonably be expected to avoid any impermissible use.
That probative value is not substantially outweighed by any danger. The probative value is high. The evidence shows how and why Burke assaulted Loeb. Spota is charged with covering up that assault, placing the assault at the heart of the case. The danger of unfair prejudice is relatively low. The sexual nature of the party bag’s conduct may cause the jury to believe that Burke has strange sexual proclivities and perhaps to draw negative conclusions about him and his character. But Burke is not the defendant in this case, so the concern for unfair prejudice is less. And any unfair prejudice cannot substantially outweigh the evidence’s high probative value. Finally, the court can instruct the jury to only consider the evidence for whether Burke assaulted Loeb; there is no reason to believe the jury will not follow that instruction.
3) The evidence is admissible; the objection is overruled.
Relevant evidence has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. FRE 401. A fact of consequence is significant in light of applicable law. Relevant evidence is admissible unless the rules otherwise provide. FRE 401. Relevant evidence is admissible unless another legal source provides otherwise. FRE 402.
This evidence goes to whether Spota covered-up Burke’s assault of Loeb. By reminding Hickey of the past retaliation against John Oliva (someone who did something adverse to Spota), Spota sought to intimidate Hickey into furthering the cover-up of the Loeb assault by finding and exposing the person who flipped and told the FBI about the assault. Spota’s intimidation of Hickey is of consequence, as Spota is charged with causing Hickey to cover-up the assault.
Although relevant, evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. FRE 404(b)(1). Spota’s past actions towards Oliva thus are not admissible to show that Spota retaliated against anyone else. But other crimes, wrongs, or acts may be admissible for another purpose, including knowledge. FRE 404(b)(2). That is, the other act can reveal something about a person’s knowledge of a situation or other state of mind.
To be admitted under FRE 404(b)(2), the other acts must be admissible for a legitimate FRE 404(b)(2) purpose and there must be proof sufficient to support a finding that the other acts occurred, FRE 104(b), meaning sufficient evidence that a reasonable jury could find the other act occurred. There is proof sufficient to support a finding that Spota retaliated against Oliva. Hickey testifies that he knows Oliva and knew what happened to him and that it was generally known within the police department.
The retaliation against Oliva is admissible to show Hickey’s state of mind, specifically his fear of Spota and retaliation if he did not keep silent about the Loeb assault. The charges against Spota turn on whether he kept Hickey silent and going along with the cover-up. Spota did that through the threat of retaliation and Hickey’s fear of what might happen if exposed the assault. By reminding him of a prior instance of retaliation, Spota caused Hickey to fear similar retaliation and thus to continue with the cover-up. Spota kept Hickey silent by retaliating against Oliva and reminding Burke of that retaliation.
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more concerns, including unfair prejudice and confusing the factfinder. FRE 403. The balance strongly tilts towards admissibility—the default is that the evidence is admissible unless the probative value is substantially outweighed by the danger. “Substantial” requires low probative value and a high danger. Where evidence is admitted for another purpose under FRE 404(b)(2), the risk is that the jury will misuse the evidence for action in accordance rather than for its permissible FRE 404(b)(2) purpose. In conducting this balancing, courts consider the probative force of the evidence, its importance and centrality to the case, the danger and harm if the jury uses it for the improper propensity purpose, and whether a limiting instruction under FRE 105 can reasonably be expected to avoid any impermissible use by directing the jury to use the evidence only for permissible purposes.
FRE 403 does not require the court to exclude this evidence. The evidence has high probative value for showing Hickey’s fear of Spota and why he went along with Spota’s cover-up. And the court can and will instruct the jury that it should only use the evidence for Hickey’s fear of retaliation and thus Spota’s efforts to stop him from exposing the Loeb assault. While there may be some risk that the jury will draw negative inferences about Spota’s character because he retaliated against officers in the past, that danger does not substantially outweigh the evidence’s high probative value.
4) The conditioning fact is satisfied.
Where the relevancy of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. FRE 104. The conditioning fact is a stand-alone fact necessary for the inferential chain from the piece of evidence to the fact of consequence to work. Proof sufficient to support a finding means a reasonable jury could find the fact exists.
The conditioning fact in this case is that Hickey knows what happened to John Oliva. The Oliva evidence goes to Hickey’s fear of Spota—Spota tampered with Hickey as a witness to the Loeb assault by reminding him “what happened to John Oliva” and Spota’s retaliation against him. Reminding Hickey of what happened to Oliva intimidates Hickey only if Hickey knew about Oliva and what happened to him.
Hickey’s testimony provides proof sufficient to support a finding that he knew about Oliva. He testifies that he knew Oliva and what happened. He also testifies that it was generally known in the police department. A reasonable jury could find that Hickey knew about Oliva and what happened to him.
5)
The evidence is admissible to Hickey’s credibility as a witness, namely as evidence of his mental illness and undermining his perception and recollection.
Relevant evidence has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. FRE 401. A fact of consequence is significant in light of applicable law. Relevant evidence is admissible unless the rules otherwise provide. FRE 401. Relevant evidence is admissible unless another legal source provides otherwise. FRE 402.
One possible fact of consequence is the credibility of a witness, which may be attacked or accredited by any party. FRE 607. At common law, credibility included 14 aspects or considerations for whether to believe a witness; the word “credibility” in FRE 607 incorporates those 14 aspects. They include perception—the ability of a witness to perceive events at the time; recollection--the ability of the witness to remember while on the stand; and mental illness—that a mental illness undermines the witness’s ability to testify accurately. Courts may look at mental illness in two ways—as an independent reason the witness cannot testify accurately or as the cause of problems with the witness’s perception or recollection.
Hickey’s hospitalization is relevant to mental illness, perception, and recollection. He was hospitalized for two weeks around the time of relevant events for confusion, hallucinations, and memory loss; that alone suggests he is not credible. Each mental-health condition calls into question his knowledge and ability to perceive or recall the events this period—whether he understood what was going on and whether it was real or hallucinated. Memory loss at the time suggests an inability to remember this now.
Credibility issues may be non-collateral (central to or at the heart of the case) or collateral (non-central). Non-collateral issues may be proven by non-extrinsic evidence (testimony of the target witness) or extrinsic evidence (evidence other than the target witness’s testimony, including documents). Recollection, perception, and mental illness are non-collateral issues, provable by non-extrinsic evidence and extrinsic evidence. Defense could not gain non-extrinsic evidence, as Burke denied his hospitalization. But the hospital records are admissible as extrinsic evidence on these non-collateral credibility issues.
