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Evidence Outline - Professor Tilly - Campbell Law - Part 12

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 11 | Part 13 >

The Path
  1. Who is the Declarant?
    1. There can be multiple declarants
    2. Declarant could be a person who merely flashed their headlights
    3. The more declarants there are, the less reliable the information will be
  2. Was there a Statement?
    1. Conduct + Intent (oral, conduct, or writing) (ex. a will)
    2. Assertion
    3. By our conduct, we convey facts
      1. Ex. Flashing headlights to assert the fact that a police officer is ahead
    4. Conduct intended to assert a fact
      1. Ex. Shaking our wet umbrella off after being asked “is it raining outside” would essentially be like answering “yes” to the question asked
    5. There can also be conduct made, but not intended to assert a fact
      1. Ex. Dora placing wet umbrella down, but witness is the one observing. Dora did not intend to assert a fact by merely placing her dripping umbrella down
  3. Offered to Prove the Truth of the Matter Asserted
    1. If offered to show its effect on the listener, would be admissible
    2. Ex. Blue Bell Ice Cream Hypo
      1. Assertion: Ice cream is safe to eat
      2. Offered to Prove: That it was said by the president
      3. So, yes it is hearsay to introduce evidence that the president of Blue Bell was on a tv commercial, and through his conduct was asserting that Blue Bell ice cream was safe to eat, BUT that evidence not offered to prove the matter asserted, so not excluded by the rule against hearsay (might have best evidence issues though
  4. Not Made While Testifying at the Current Trial?
    1. Was statement made while not testifying under oath?
      1. If yes, subject to the rule excluding hearsay
    2. OJ Simpson Example
      1. OJ trying on the glove in front of jury WAS him testifying
      2. The conduct of trying on gloves is asserting the fact that gloves did not fit him
      3. He tried on the gloves while NOT under oath or subject to cross-examination; so, his assertion of a fact through his conduct should have been objected to
Full Hearsay Analysis
  1. Who is the declarant
  2. Is it a statement?
  3. Was it made at a time other than while testifying in this trial?
  4. Being offered for its truth?
  5. Does an 801(d) exemption apply?
  6. Does a Rule 803 exception apply?
  7. Does a Rule 804 exception apply?
    1. Remember unavailability!!!!!
  8. Does the residual exception apply under 807?
  9. Is the statement against a criminal defendant?
  10. Is the statement testimonial?
  11. Did the defendant have an opportunity to CX the declarant before or now?
  12. Is there an exemption applicable despite being testimonial?
  13. Would mechanical application of hearsay deny criminal defendant due process?
Walking Down the Hearsay Path Hearsay Analysis Extended - Part 1 Hearsay Analysis Extended - Part 2 Character Evidence

FRE 404 Character Evidence

  1. Character Evidence.
    1. Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
    2. In Criminal Case, Exceptions for a Defendant or Victim:
    3. a defendant may offer evidence of the defendant’s pertinent trait and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
    4. subject to the limitations in 412 (rape shield), a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecutor may:
      1. offer evidence to rebut it; and
      2. offer evidence of the defendant’s same trait; (this is typically rebuttal to D’s case in chief) and
    5. in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

“Pertinent trait” is one related to the charge: A trait that acting in accordance with would be towards the crime charged

  • I.E. – D charged w/ possession of cocaine → can’t bring in testimony that he’s a “good family man”, that’s not pertinent
  • If D offers pertinent trait of V → prosecutor can rebut it as applied to V, offer evidence of D but ONLY that same pertinent trait
    • Remember D is limited by 412

All of these are still limited to proving by opinion and reputation evidence (discussed more in Rule 405)

Homicide prosecution example is ONLY when responding to D saying V was first aggressor

  • ONLY allows prosecutor to offer evidence of VICTIM’s trait
    • This exception is different than other parts because defendant doesn’t have to “open door” by other character evidence necessarily, can just be asserting self-defense claim wholly irrespective of any character evidence

This rule doesn’t apply when the character is “in issue”, aka when character is an element type cases (where 405(b) comes into play)

A bar fight breaks out at Scruffy Murphy’s during karaoke night at the bar. The victim is severely injured by a beer bottle to the face allegedly thrown by D. At trial, D offers two witnesses:

  1. Dan, who will testify that he has been out to bars with victim on many occasions and knows him to be someone who, in his opinion, becomes aggressive after drinking.
    1. Admissible: offered by the defendant about the victim and aggressiveness is a pertinent trait for a bar fight prosecution
  2. Paul, who will testify that he has lived in town for many years, and is familiar with what people say about victim, and that the victim is known for reckless and drunk driving.
    1. Not admissible - reckless/drunk driving is not a pertinent trait towards THIS charge

Once character evidence is admissible →

FRE 405 Methods of Proving Character Evidence

  1. By Reputation or Opinion: When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
  2. By specific Instances of Conduct. When a person’s character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

A. Once character evidence is admissible under 405(a)

  1. For opinion evidence: must have personal knowledge
    1. For reputation- witness doesn’t even have to actually know the person
  2. But- can only inquire into specific instances if on cross exam (impeachment), not direct
    1. Specific incidents inquired about must be relevant to the character traits involved at trial
      1. Also Need good faith belief that event actually happened!! Not just that people had heard about a rumor
        1. If witness says he doesn’t know about specific instance of conduct → can’t prove it by extrinsic evidence
        2. Classic prosecutor bs “oh Ben’s a nice gentle guy huh? did you know he was convicted of punching a cop in the face one time?” type of thing
          1. Cross examination here is really supposed to be more geared towards credibility of witness’s testimony. Cross examining inconsistencies with reputation/opinion of pertinent trait that the witness offered
  3. Criminal D must open door → then prosecutor can rebut, but also just with reputation or opinion (can’t do specific instances on direct)
    1. Remember- for cross exam into specific instances, this is “court May allow” standard, doesn’t have to

B. Extends to civil cases, direct exam can prove by relevant specific instances of conduct in certain instances!!!!!

  1. ONLY when the character trait is an essential element of a charge, claim, or defense, main instances:
    1. Defamation/Embezzlement
      1. Typically when defendant raises defense of truth
    2. D claims entrapment
      1. (prosecutor showing pre-disposition to commit crimes, often even involves bringing in criminal record)
    3. Best interest
      1. (I.E. – domestic issues)
    4. Negligent entrustment/hiring/retention
      1. I.E. – reasonably prudent employer would have taken bad driver off road; bartender owner hires bouncer w/ violent criminal background → becomes direct liability
        1. When P claims D was grossly negligent in hiring the person that caused the injury
        2. Notes seem to indicate that this extends to the trait of “incompetence” of the employee himself
  2. Not restricted by 404 b/c not really about “conformity”
    1. Is being offered as a material fact that the substantive law determines rights and liabilities
      1. Comes up way more in civil cases, but can be applicable in some criminal
  3. When in issue → can prove by specific instances, reputation, AND opinion
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