Evidence

23 March

• By Wednesday: through IV.B.5
• Mon 3/30: IV.C
• Wed 4/1: V.B.2
• Mon 4/6: Finish experts: V.B.6
• 4/8: Hearsay VI.B.1
• 4/13:
• 4/16: Finish VI.B
• 4/20: Finish VI
• 4/27: Authentication VII
• Last class: privilege, wrap-up
• Prior convictions: rule 609.
  "Accused" means a defendant in a criminal case, by the way. Evidence of a prior felony by the accused has to be balanced against its prejudicial value. Note that the balancing test here is different from the Rule 403 one: it's not "unfair" or "substantially." So that's a little more defendant-friendly. "Unfair" is probably still there, implicitly-- it's not enough just that the evidence be unhelpful to the defendant.

  Why don't witnesses get the same special balancing test? They don't: they get the regular Rule 403. And note that a witness's reputational interest isn't really considered-- we're only concerned about unfair prejudice to the party. You might arue that your client shouldn't be tarred with the same brush as the witness (since their crimes may well be similar), but that's not really the witness's interest.

  Even misdemeanors are allowed if they involve falsity and dishonesty. And that appears to go for the accused as well. This is the crimen falsi issue. This is interesting: an awful lot of felonies have nothing to do with dishonesty. There's a matter of degree, and society's judgment that this is extreme conduct. But in the modern regulatory state, that hardly seems the case any more.

  Now 609 is only for impeachment: we can only go after the accused under 609 if the accused is a witness.

  Also note that 609 is just about the fact of a conviction, not the character for truthfulness (that would be 608). The WI rule about prior convictions (Wis. Stats. § 906.09; to convert a federal rule to a WI statute, put 90 in front of it and move the decimal point): you can ask "have you ever been convicted of a crime?" and then "how many times." WI doesn't let you name the crime, ask when it was, differentiate between felony and misdemeanors, etc. In Federal court, you can ask those questions, but you can also name the crime and the year.

  In practical terms, judges will tend to exclude prior convictions, the older they are. 10 years is the federal standard. Now you don't just spring this on the judge, either: 104(a) the judge needs to make a ruling on the admissibility of this evidence out of the hearing of the jury. And at times, witnesses are instructed to give incorrect answers to juries, if certain convictions are ruled inadmissible (so: "how many times were you convicted" might really be "how many of your convictions should the jury hear about").

---

• So, back with falsity. 609(a)(2): "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." Does falsity have to be an element? Not really.
• 609(d): we tend not to admit juvenile delinquency convictions. And we never admit them against the accused. But there are some limited circumstances where we might allow it against another witness.
• Luce v. US (1984): if a judge incorrectly rules that a prior conviction can be admitted, and the defendant therefore decides not to testify at all (so as to avoid getting it introduced), there is no grounds for appeal.
• Ohler v. US (2000): if the defense lawyer introduces that evidence, the right to appeal is waived. And note that the standard for appeal here is abuse of discretion. So basically, whatever the trial judge rules on 609 issues, that's how it's going to be, and there's not much chance of appeal.
• You can revisit rulings in limine: trials never go quite the way people expect, and the judge can alter the ruling. So go ahead and ask, if the situation merits it.
• So, in a civil case, do you have to run criminal background checks on all your witnesses in all 50 states? In a criminal case, the state has to give you the criminal records of all their witnesses if you ask. And they certainly will run checks on all the defense witnesses, so you'd be a fool not to explore that. Well, in a civil case, at the very least, you should ask, and explain what will happen if the other side finds out.
• Gertz v. Fitchburg R. Co.
  A pretty good explanation of why felonies are admitted: they show a general readiness to do evil. But it's proper to rehabilitate as well, with evidence of character for truthfulness.
• Refreshing a witness's recollection (Rule 612) is a form of rehabilitation. Suppose the witness has seen a car accident. The police interview the witness at the time, and the witness says "the blue car had the red light."

  90 days later, an investigator interviews the witness, and the witness says "the white car had the red light."

  At trial, the witness says the blue car. Opponent impeaches using the day 90 statements. We can use Rule 613, to introduce that prior inconsistent statement. On redirect, the proponent, obviously, wants to rehabilitate. So under Rule 801(d)(1)(b), we can get that statement from Day 1 in (prior consistent statement).

25 March

• So, broadly speaking, refreshing memory under Rule 612 is sort of a form of rehabilitating a witness. Often times witnesses are nervous, and don't remember every last detail on the stand. When that happens, you head to Rule 612. It's generally not the purpose of the examiner to attack the witness, or to challenge credibility solely on the basis of a simple lapse in memory: you just want the witness to remember. So you throw the witness a lifeline, and save them from fumbling around on the stand.

  So you provide the witness with something in the hope that it jogs their memory. If that works, you take it away (it's not itself evidence), and then the witness can offer testimony from a now-refreshed recollection.

  You can use anything to refresh memory: there are no restrictions (even a prompting from the lawyer).

  You can gently impeach (prior inconsistent statement: Rule 613) under the guise of refreshing memory. So what may be rehabilitation with one witness may be a sort of impeachment with another.

• You can introduce a record of a past recollection, if the witness's memory isn't wholly refreshed (see also 3/9) under Rule 803(5), an exception to the hearsay rule. An exhibit introduced this way doesn't go to the jury itself. It's just read to the jury right then and there: it is a replacement for the actual testimony we'd been hoping for. That's a peculiar rule: there aren't others like it. That's something many judges need to be reminded about, incidentally.
• Character gives lawyers an enormous amount of trouble. It is tricky.
• So what is "character evidence?" What does it try to prove? Propensity to act in a certain way. Remember that this is article 4: relevance, the heart of evidence.
  • What do we try to show: not just character generally, but some specific trait. Not just goodness or badness, but some particular trait. But what is a character trait? Dishonesty, jealousy, agressiveness, carelessness, caution, etc. It's actually hard to describe what a "character trait" is, because it's pretty abstract. And by the way, these don't just have to be negative: honesty, generosity, etc. Character traits are persistent aspects of a person. So is sexual preference a character trait? Interesting discussion, because it's so political. Pathologies can be character traits, too, but this is also controversial: if one suffers from a condition that compels their acts, (and particularly if it's treatable) is this character at all? So one problem is the level of generality (i.e., how pervasive does a trait have to be), and another is specificity (i.e., is it cowardice, or cowardice with respect to spiders, etc.). And then there's just habit: specific and repeated responses to a type of situation. Habit is related to character, but it might be a totally learned thing (that's Rule 406, by the way).
  • Why do we want to establish this trait: because it makes it more or less likely that the person in question did a specific thing that's material in the lawsuit. That's how habit evidence works: the fact that a driver always floors it when the light turns green makes it more likely that he did so in this particular instance. So habit allows us to connect the dots between a character trait of being agressive and possible fault in a given accident. With character, though, we're not allowed to show propensity. Habit is sort of an inductive method of proof, but character doesn't always express itself in a certain way: the same stimulus might elicit different reactions, depending on context. You might have a character trait, but choose to act differently. Note that character probably does still have some minimal probative value (e.g., being a coward means it's more likely that you acted in a cowardly manner in some specific incident) but the inference is weak, and the potential for unfair prejudice is strong. And there's a flip side: if we allow one side to present this evidence, there's pretty much unlimited rebuttal material: you can always cite a zillion instances where something didn't happen (the Raven paradox; Hempel's paradox).
• Habit gets its own rule, because it's different from character. It's just routine practice. It's a little easier than character also, because it's more specific and easier to prove. There may be character traits underlying habit, of course.

  How do you prove habit, if it's relevant in a lawsuit? You need prolonged or regular observations. So the length of time that a witness has known the person with the alleged habit, the kinds of observations made, corroboration by other people familiar with the person, etc. So you lay a foundation that someone would know about this habit, and you can use reputation evidence, and then you get testimony about it.

• So is religion a character trait? "Faith" or "piety" or something like that? Character traits don't require much external input or acquired knowledge. So intellectual curiosity might be a character trait, but being an academic is an acquired status (which might be a byproduct of the character trait) is not. Religion itself is not really a character trait, but maybe religiosity is.