Evidence

30 March

• You can have character evidence, but not propensity evidence for character. And you can have propensity evidence for habit. And when it comes to character traits, after all, it's not reasonable to predict that someone will acti in accord with any given trait on a particular occaision. People do things that are "out of character," after all, and we're all somewhat inconsistent.
• So, how do the rules treat character evidence? Rule 404.
  • (a) In general, not admissible to prove propensity ("action in conformity therewith"). However, there are three times when character evidence to show propensity is allowed:
    • (1) If accused makes an issue of a character trait, there can be rebuttal (e.g., peaceableness of the defendant).
    • (2) Character of the victim, or rebuttal (e.g., the victim was a violent agressive person).
    • (3) Character of a witness is OK, as provided in 607-609 (e.g. character for untruthfulness).
    [(1) and (2) are generally at issue where self-defense is claimed; that's frequent in state court... bar fights, etc.] also [when we are proving character for propensity, you can only use reputation or opinion; specific instances of conduct are only allowed when the trait is an essential element of a charge/claim]
  • (b) In general, evidence of other crimes is not admissible to prove character/propensity. But there's a non-exhaustive list of reasons for which it can be admitted.
• Remember, if a rule says "evidence of type X may not be used to prove A or B," that means it may be used to prove C or D.
• Note that in general, evidence about a witness's character for truthfulness can only be offered after there has been an effort to impeach for untruthfulness (608(a)(2)). A defendant can affirmatively offer evidence about his own character for truthfulness if it's a material issue in the trial (404(a)(1)) even if he doesn't testify. If he does testify, on the other hand, his character for truthfulness is always relevant.

  It makes sense to consider a criminal defendant's character for truthfulness differently than that of other witnesses, because they have something at stake (liberty) which nobody else does. And remember, it's natural to consider the defendant inculpated, at least slightly, by the decision not to testify. And if they do testify, everyone thinks they have a strong motive to lie. So damned-if-you-do-damned-if-you-don't, and therefore we give them this bit of leeway. And that principle is old: it's not newly codified.

  And note that the defendant's character for truthfulness is put in play not just by the simple act of testifying, but by offering evidence about character for truthfulness (i.e., by bringing in character witnesses). By testifying, the truthfulness of the testimony itself is at issue, of course, but not the character/propensity to be truthful. So merely testifying doesn't allow the prosecution to call witnesses to testify about my character for untruthfulness.

  So "did he lie on in his testimony" is different from "does he lie in general." Sometimes (perjury, hinering/lying to an officer), character for truthfulness may be relevant whether the defendant testifies or not: it's directly related to the elements of the charge.

• Michelson is worth remembering.
  Written by Robert H. Jackson: the last person on SCOTUS with only a HS Diploma. He went to college just long enough to get into law school, went to law school just long enough to become a legal apprentice, and then took the bar and passed. Then he was the lead American prosecutor at Nuremberg. A lovely rhetorician. Remember his dissent in Korematsu.

  But this is also a useful case, because it explains the risk that one takes by calling a character witness. If you put on a character witness, "have you heard" and "did you know" questions are permissible on cross: it's a way to get otherwise wholly inadmissible evidence into the record. Not to prove that the defendant is untruthful, but to test whether the character witness really does know the reputation of the person on whose behalf the testimony is offered, and has an opinion worth listening to. So you can ask about juvenile misdemeanors for example. (Would it change your opinion of his truthfulness if you learned that he had shoplifted as a 15-year-old?)

  So this isn't in the rules of evidence, but it is still the rule. It's sort of a 608(b) or 405(b) thing: the character trait has been made an essential element of a claim or defense, so it can be impeached with instances of specific conduct.

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• The idea of character witnesses goes all the way back to the 13th century or so. As trial by ordeal began to fall out of favor, English judges began to look for other ways to find the truth. Compurgation: parties would bring in "oath helpers" who would swear their belief in the party they supported. The side with the most oaths won. This didn't disappear entirely until the early 1800's.
• Anyway, it's usually pretty foolish to call character witnesses, because of Michelson, unless you are REALLY sure there are no devastating questions out there. If you're really going to call one, you might want to pick someone who doesn't like your client, but would be willing to stand up on this one issue.
• Lilly (§ 3.6, 3.6-1) says that character as an essential element of a claim or defence is mostly confined to civil cases nowadays; the only obvious exception would be perjury prosecution. You see it in discrimination lawsuits, for example. Or maybe defamation (were the defamatory statements about my character true or not, e.g.). Negligence, also (claims of recklessness). Or, in the case of punitive damages, how huge the award would have to be in order to actually deter such a person.
• Taylor
  Testimony of the accomplice about uncharged prior bad acts is not admissible under 404(a) (i.e., it's not one of the exceptions). But we can get it in for one of the purposes under 404(b). It may go to a character trait, but as long as we're not using it to prove propensity, we can offer it to prove other facts if they're material.

  The jury isn't just using this for identity and intent, of course, but that's why it's being offered. Even though there's a permissible purpose, it's likely that the jury would use it for the impermissible purpose, in spite of some limiting instruction.

  Posner says the idea that evidence is "inextricably intertwined" is just hogwash. It's better just to look for a permissible purpose under 404(b). Or even a purpose not listed there. Just don't offer it for the FORBIDDEN purpose. So the facts here are unremarkable, but Posner requires us to be rigorous (at least in 7th Cir.) about why we're admitting evidence about other crimes which would otherwise be impermissible character evidence.

• Murray
  Although evidence of other bad acts is usually offered against a criminal defendant under 404(b), the rule isn't limited only to defendants: you can offer it to impeach a witness, or even the victim. "Reverse 404(b) evidence."

  To show that a witness has a reason to lie now (motive): it's payback for some earlier things. It doesn't even have to be a criminal case. That's a kind of impeachment, of course; but it's a way of using prior bad acts to get there.

1 April

• § 972.11 is in the trial procedure section, even though it's the analogue to FRE 412. That's an exception to the normal numbering plan.
• Rule 412 deals with the sexual behavior of a complainant or victim. We don't want the jury drawing conclusions about the defendant based on irrelevant aspects of the plaintiff's or victim's behavior. In addition, historically, there has been stigma attached to being the victim of a sexual offense (at least since Victorian times). But why single out sex in this respect? How is it worse than being the victim of a con or something? Is sexual history somewhat less probative than, say, a history of agression? We let in a victim's character for violence without batting an eye. We don't trust juries not to become inflamed or judgmental about sex, though. Probably the drafters of FRE 412 didn't spend a lot of time on the psychology of character traits: we just have an attitude about sex.

  In the 80s, when rape shield statutes started to become commonplace, there was outrage that defense attorneys were getting guilty clients off by tarnishing the victim's character (dressed a certain way, alone at the bar, etc.). Defense lawyers were exploiting outdated and oppressive cultural values, the burden of which fell heavily on women. These distorted the process of assessing whether the defendant did something wrong or not.

• Part of this may lie in the difficulty of defining promiscuity: for pretty much any behavior maybe you can find someone who would think it was promiscuous and someone who would think it was commonplace or even prudish. Also, promiscuity is sort of a moral judgment, just as a word: you wouldn't use it to describe someone who had a diagnosable compulsive behavioral disorder that compelled them to engage in sexual activity.
• Very often a consent defense in a sexual assault case is based on what the defendant reasonably would have believed (this varies by jurisdiction).
• Chambers v. Mississippi: the constitution trumps rules of evidence. This is why FRE 412(b)(1)(C) is redundant.
• Wis Stats 972.11(2)(b)3: an additional exception in WI for prior untruthful allegations of sexual assault bythe complaining witness.
• Being raped is not prior sexual conduct-- this would mess up both prosecutions and defenses. This is how you can defend against a charge where the complaining witness is a child with precocious sexual knowledge (which the prosecution presumes they could only have if you raped them). You're allowed to suggest that the rapist was the notorious Uncle Bob.

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• Always remember: inadmissibility for one purpose does not mean inadmissibility for all purposes. And also remember that even if you've got a proper reason for admitting some evidence, 403 still applies: no unfair prejudice. In civil cases, there's 412(b)(2) that supplants 403; it shifts the balance from admissibility to inadmissibility, and it puts the burden on the proponent to get the evidence admitted (whereas under 403, the opponent has to work to keep it out).
• Other bad acts. Defense lawyers tend to interpret 404(b) wishfully. It's not a rule of exclusion. It's just not. It's just a rule of focus: a focused material issue will permit offering evidence of prior bad conduct. A competent prosecutor can always come up with some permissible purpose other than propensity.
• So, on the question of identity. Does other bad acts evidence prove identity? When other bad acts are being used to prove identity, they have to be HIGHLY SIMILAR to the charged crime in their details (the "signature rule").
• For most of the permissible purposes, there's not a lot of good case law, and courts have done a pretty poor job with things like motive.
• Sullivan: the 3-part test is important:
  1. Offered for an acceptable purpose
  2. Relevant
  3. Not outweighed by its prejudicial effects
  The proponent of the evidence has to walk through the analysis carefully. The opponent has the burden of doing the same thing to assist the court, and the court is obliged to make a record on each of the three steps of this analysis. On one level, this is about making the decision to admit/exclude reviewable. But it's also more: it imposes duties not only on judges but also lawyers to confront the proper matters in decisions to admit evidence.
• Huddleston and Zapata on Monday.