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Evidence Outline - Professor Tilly - Campbell Law - Part 16

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 15 | Part 17 >

(B) Limit on Using Evidence After 10 Years. If more than 10 years have passed since the witness’s conviction OR release from confinement for it, whichever is later.

Evidence of the conviction is admissible only if:

  1. its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
  2. the proponent gives an adversary party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
    • Rarely gets in, flip of 403
      • Remember written notice requirement!!!!!!
    • Timeline is based on whichever one is closer
      • I.E. – convicted 30 years ago but let out of jail 9 years ago? → this rule doesn’t even restrict it
      • Based on actual time served, not potential

(C) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

  1. the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year (felony); or
  2. The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

If person was pardoned based on finding of rehabilitation → they lose this protection if they get convicted of another felony afterwards

  • But if they were pardoned based on innocence → it’s not getting in
    • I.E. – Barack Obama pardons a terrorist because he thinks he’s a changed man, terrorist goes and blows up the world trade center → previous terrorist act can come in
    • But- Trump pardons Mike because he knows he was innocent. Mike gets wrongfully arrested again → Mike’s previous crime isn’t coming in

(D) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if;

  1. it is offered in a criminal case;
  2. the adjudication was of a witness other than the defendant;
  3. an adult’s conviction for that offense would be admissible to attack the adult’s credibility (crimen falsi); and
  4. admitting the evidence is necessary to fairly determine guilt or innocence.
    • Not limited to showing witness’s character for truthfulness → I.E. – can be used to show bias

Preserving right to appeal under Rule 609. In order to raise and preserve for review the claim of improper impeachment with prior conviction, a defendant must testify

  • In limine ruling where D tried to excuse the admission was not enough, too
  • speculative

NC Rule 609

  • (a) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 (more than 30 days) misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.
    • (not limited to felonies), majority of crimes are admissible
      • Even just disorderly conduct
  • stale (10 y/o) convictions must pass reverse 403 balancing test & prior written notice of intent to use
Other Witness Specific Rules

FRE 615. Excluding Witnesses “Invoking THE RULE” At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

  1. a party who is a natural person;
  2. an officer or employee of a party that is not a natural person , after being designated as the party’s representative by its attorney;
  3. a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
  4. a person authorized by statute to be present.
    1. I.E. – may be a statutory right for criminal victim

Lawyer’s choice whether or not to invoke (court has no discretion, but can also do it sua sponte)

  • Designed to make sure witnesses don’t collaborate

Applies to trial, depositions, hearings, etc.

Exceptions to sequestration:

  • Natural person parties.
  • Designated officer/employee of a non-natural person party.
  • “person whose presence is essential to presenting claim/defense”
    • I.E. – experts
  • Statutory authorized persons.

FRE 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

  1. make those procedures effective for determining the truth;
  2. avoid wasting time; and
  3. protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.

The court may allow inquiry into additional matters as if on direct examination.

(c) Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

  1. on cross-examination; and
  2. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party

A. Order of witnesses is really just tradition, not mandated

  1. Court can change order if good reason but usually requires a compelling reason

B. Scope of cross-exam is limited to what was brought out during direct exam

  1. BUT scope ALWAYS allows cross examiner to inquire into issues of credibility too
  2. Court may allow inquiry into additional matters as if on direct examination
    1. I.E. – if opposing counsel objects to “outside the scope” you can be like “judge, my guy, if you don’t let me go on with this I’m just going to call this man back to the stand next week. It would save time if we went forward with this” → good shot he’ll let ya go ahead (basis of NC practice)
  3. NC: no scope limitation, just must be relevant

C. Leading questions are questions that suggest an answer

  1. “Yes or no” type questions is often a bad sign
  2. Fine on cross and with hostile/adverse witness

FRE 610. Religious Beliefs or Opinions. Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

  • Limited to evidence regarding credibility, does not exclude all evidence of religious belief offered for impeachment
    • Inadmissible only when offered to show that a witness’s character for truthfulness or untruthfulness is influenced by the nature of that belief
      • Admissible for other purpose, even when it affects credibility in some way
        • I.E. – religious belief offered to show the bias of a witness, MO, basis for a claim or defense
  • Extends to unconventional beliefs
    • Difficult when having to distinguish b/t religious beliefs and political/philosophical beliefs

FRE 607. Who Can Impeach a Witness. Any party, including the party that called the witness, may attack the witness’s credibility

  • Can call witness with the sole purpose of impeaching them
    • BUT, United States v. Hogan, prosecution may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a scheme serves as a subterfuge to avoid the hearsay rule

Methods of Impeachment listed in FRE 607

  1. Untruthful character
    1. (Rules 608 and 609 previously stated)
  2. Prior Inconsistent statements
    1. (Rule 613)
  3. Defects of Capacity
    1. Witness’s capacity to perceive, recall, or relate may be shown to be impaired
      1. I.E. – mental illness that evinces an “impairment” of ability to comprehend, know, and correctly tell the truth; alcohol or drug use; bad eyesight, memory, hearing
    2. Extrinsic evidence generally allowed
  4. Contradiction
    1. Substance of witness’s testimony may be contradicted
  5. Bias
    1. Witness may be shown to be biased or interested
      1. I.E. – have some reason to slant or fabricate his testimony
    2. Extrinsic evidence is typically admissible to prove bias

No federal rule

Bias: State of mind that may cause a witness to favor or disfavor a party

  • I.E. – friends/family, financial relationship, employment, shared beliefs or background, payment of money
  • Accused may have constitutional right to attack a Witness for bias (confrontation clause)
  • Since no federal rule → standards of 403 and 611 typically apply
    • U.S. v. Abel
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