Evidence

9 March

• There are four elements of competence to be a witness:
  1. Perception of an event
  2. Recollection of an event
  3. Communication of the recollection
  4. Oath of truthfulness
  All examination of a witness is about one of these things. You can impeach them on any of these bases, but only these bases.

  In My Cousin Vinny, the impeachment is pretty much all about perception (eyesight, or perception of time, line of sight, etc.). Today we're going to concentrate on impeachment of the oath or ability to tell the truth.

• Rule 607: anybody can impeach. But how do we get there? Rule 404(a): if we're not dealing with one of those four subjects, then whatever we want to ask is irrelevant.

  But being a liar is a "pertinent trait of character" under 404(b). Of course, we needn't show that someone is a liar in general, but just that they might be telling untruths.

  Character (404(a)(3)) is linked to 607, 608, and 609.

• If we are ever a witness against one of Steve Hurley's clients, he will find out our lies and use them against us.
• Rule 607: calling a witness doesn't mean you're vouching for them. In fact, vouching is not allowed: you can't say you believe a witness. The net is that any party may attack the credibility of any witness. The decision on when and whether to impeach the witness can be addressed in three steps:
  1. Is the information that I'm going to use to impeach the witness actually impeaching information?
  2. Does my opposing counsel know about this information?
  3. Is this information admissible?
  Many ways of impeaching a witness are foreclosed in the course of a trial, so that last point is really important. Partly this is because of prejudice, but efficiency is a bigger one: we don't want our trial to break into many mini-trials about this or that witness. We only want to hear facts directly related to the issues at trial. We're sensitive to the burdens that jurors face, and we don't want to waste their time or throw them off track.

  If you've called a witness, and you know there's impeaching information out there, you'll impeach them (in a friendly, explicative way) to blunt the opponent's side.

• The courts distinguish between confrontation and cross-examination. So if a witness testifies for the prosecution on direct, and then invokes 5A, there's no confrontation problem, but there is a cross-examination problem. That's Zapata.
• Zapata: the questions asked on cross were relevant (in the sense that they could be asked, and there was no objection), but the 5A invocation was allowed to stand. Maybe (contrary to this case) the testimony should have been stricken: the defense is not able to cross-examine on all relevant points.

  Note that this is really only a criminal case problem: in a civil case, the jury is instructed that they may draw an inference from the invocation of 5A. But we don't want to strike testimony in such a way that guilty people go free, so we allow the trial judge to deem certain questions "ancillary."

• Probably the most common impeachment tactic: prior inconsistent statement.
• Need to distinguish between three related concepts:
  1. Present recollection refreshed: Fixing a failure to recall by refreshing a witness' recollection. We want to trigger their memory, hopefully in a way that would be accurate, to get them to remember what happened. The best triggers are smell and taste; also visual perspective. So we say "would it refresh your recollection if we let you smell a lemon/see a picture of the bar where the fight occurred/ showed you your diary record for that day, etc." You can do pretty much anything to refresh recollection, but there's a rule about how you use a writing (Rule 612): the adverse party gets to inspect it, cross-examine about it, and introduce those portions relating to the testimony. You don't actually have to mark it as an exhibit (although this is wise to do, so an appellate court can know about it, if it becomes an issue later). When they're done reading it, you take it away from them, and then ask them the questions you were planning to ask. They don't read from the document, they are just testifying from their present recollection, which has been refreshed. The first question at trial or deposition is "have you used anything to refresh your memory?" And if so, "let me see it, please."
  2. Past recollection recorded: If the witness' recollection can't actually be refreshed, we can substitute a writing for their memory in certain cases. So, e.g., a cop's report, etc. What's the problem here? Can't cross-examine a writing, and it's technically hearsay: an out-of-court statement used to prove the truth of what's in there. Rule 803(5): an exception to the hearsay rule for certain memoranda. We can basically submit some written record as testimony.
  3. Impeachment by prior inconsistent statement: When "I don't recall" seems untruthful, this is our response. Two rules govern this: 801(d)(1) and 613. Rule 613 is sort of a how-to rule: you can ask the witness a question (did you tell the officer that the light was green?) even though you hold their prior answer to that question at the ready. You can, but you don't have to, show them the answer and give them the opportunity to correct their testimony. In order to impeach them, we need to produce the extrinsic evidence of what the prior inconsitent statement was. So you then bust out with the prior statement, and give them an opportunity to respond. The extrinsic evidence (of what the witness said outside of court) might be hearsay if it's not handled this way: it's not hearsay if we're just showing that the witness is lying. 801(d)(1) is what allows us to use the out-of-court statement for its truth. Here we are impeaching the oath: the ability to tell the truth. This is probably the most common way it's done. A statement doesn't have to be 100% directly inconsistent (trivial inconsistencies may be overruled), but "I don't recall" is inconsistent with a prior statement where the witness had memory.
  Failing to grasp these is a problem. Each of these is triggered by the same response: "I don't recall" (or an answer that is inconsistent with some prior statement). This can have two meanings: either they don't remember, or they don't want to tell. That means, though, that either the recollection or the oath aspect of competence is in play, and we can decide what tool (from the related concepts above) we can use, based on strategy. Basically, we can make them competent again: when someone says "I don't recall," they are no longer competent, at least on this issue. This is a ubiquitous answer in trial: nearly all witnesses say it at some point.
• Hearsay: taking an out-of-court statement and offering it to the trier of fact in order to prove the content of the statement. Prior inconsistent statements are exempted from being excluded as hearsay. In WI, any prior inconsistent statement is admissible for this purpose, but under the federal rules the oath is required.
• "Helium hands:" good phrase.

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• What if your guts say that the witness is a liar, and a clever one? How do we convey to the jury that this person is untruthful? There are dishonest acts that don't necessarily involve making false statements (e.g., stealing, cheating on a spouse, etc.). There are lots of things in life that tell us that someone is dishonest, but we can't use them all in the courtroom, much though we might like to. Rule 404(a): we're not generally allowed to assault character.

  Well, 404 reminds us of Rule 408: character is relevant to the question of truth-telling.

  So how do we do this? We might call to the stand a person who was wronged by the witness. We can't ask what the witness did to him/her. But we can ask "how do you know the witness?" "For how long?" "Based on that knowledge, do you have an opinion about his quality for truthfulness?" The opinion "he is a no-good lying son of a bitch" is admissible. We don't want the trial hijacked by questions about what the witness actually did that created the opinion. That's an efficiency issue, and also one of keeping focus on what the trial is about. The rules give us a compromise, then, when dealing with questions of credibility. We allow testimony about reputation, but not specific instances of conduct (except as provided in 608(b), 609).

• Interesting moral question: it is worse to cheat or to cheat and then lie to cover it up? Are those basically the same deed, or are they different?
• We don't permit bolstering of a witness' competence (608(a)(2)). You only get to put on a witness supporting credibility if there has been an attack on the credibility.
• An attack on credibility might be as simple as a tone of voice. If you're asking questions in such a way that it suggests to the jury that the witness is not a truth-teller, you've opened the door for 608(a)(2) supporting witnesses.
• So you can't inquire about specific instances of conduct that led to a person's reputation, or formed an opinion about truthfulness. If you have a good-faith basis for asking a question that rebuts a character witness, even though it involves a specific instance of conduct, you can do this under 608(b). Clear this with the judge first. Also, you are stuck with the answer-- you can not introduce extrinsic evidence
• Ling: The questions about firing a gun in public, and drunk driving, are attempts at extrinsic evidence. This hijacks the trial, and distracts the jury, and denies Ling a fair trial.
• At common law, we used to draw a distinction between crimen falsi (perjury, theft, etc., crimes predicated on dishonesty) and other crimes, in terms of what convictions could be introduced to impeach a witness. But then that distinction began to erode, and any felony was admissible. And then it got expanded to include misdemeanors and juvenile offenses (in WI). This is problematic: very authoritarian. Lots of convictions have nothing to do with the ability to tell the truth, but we allow them nonetheless.
• So we've got lots of ways to impeach, and we haven't even talked about bias yet. There's nothing in the F.R.E. about bias, but from the common law, we have the notion that evidence of bias is never collateral. It's always subject to a 403 analysis, but you can always explore it, at least to some extent: it is always relevant.

11 March

• The exam: True/False. The right answer will be based on the Federal Rules of Evidence, unless there's been a specific highlight of a WI difference in class. The question would say if it's a WI issue. Closed book. Approximately 150 questions. Maybe 180. On up to 5 of them, you can annotate why you gave the answer you gave (i.e., pointing out some ambiguity, etc.).
• Back on Zapata
  We'll see this case several times, because it's a good tool. It's very real-world, and the defense lawyer is so skilled. The legal issues and the care with which the record was developed at trial are remarkable.

  Civil litigators need to understand this as well; maybe even more than criminal ones. When do you get to impeach someone by his refusal to testify on a claim of 5A privilege, and when not? In civil cases, even if you're not a trial lawyer, you might get asked questions when a client gets summoned to a deposition. So a deposition is the first setting where you'll have to worry about this.

  In a deposition, it's proper to ask questions calculated to lead to the discovery of relevant evidence. So as long as the question is within those very broad bounds, it's proper to ask it, even if the answer incriminates the deponent. And one can't simply invoke 5A like you can in a criminal trial-- one has to invoke it on a question by question basis, not as a blanket like in a criminal case.

  What about at trial, and there's a jury in the box? There's some variation by jurisdiction, but the majority rule is that it's improper to call a witness adversely solely for the purpose of forcing that witness to invoke the 5A privilege in front of the jury. So, if you think a hostile witness will take the 5th, the right thing to do is to ask the judge for a hearing out of the jury's presence, and go through the examination to see where, when, and how often the privilege is invoked. Then you can argue with the judge about how much of this you can present in front of the jury.

  If, on the other hand, you're the cross-examining party (i.e., not the one who called the witness), if your questions are within the scope of the direct examination, and the witness now wishes to invoke 5A, the majority rule is that the question is proper, and the witness can be forced to invoke the privilege in front of the jury.

  In a civil proceeding, the claiming of 5A allows an adverse inference: the jury is allowed to draw the conclusion that the witness' answer would have been unfavorable.

  If cross-examination goes outside the scope of direct (this is not improper: impeachment, for example), the majority rule is that the jury should not hear the witness invoke the 5th. This is what we see, a little, in Zapata. Zapata's claim is that the 6A right of confrontation is infringed because the witness repeatedly took 5A. One of the reasons that the court says this is harmless is that the questions where 5A was claimed were outside the scope of direct.

  So that's why the court doesn't strike all the testimony: you have the right to fully test whatever evidence was offered on direct (else the calling party would have an unfair advantage), but you don't have the right to introduce the a 5A issue that the opposing party wouldn't be able to ask about on redirect (and they wouldn't, because 5A was claimed).

  Note that if a witness is testifying under immunity, the witness has no right to 5A any more, and can be forced to testify. (There's no such thing as immunity in the civil context, because only the sovereign can grant immunity).

  Anyway, that's one of the rare-ish things about Zapata is that the defense lawyer's cross was so strong that the witness claimed 5A. This is much more likely to happen in civil cases.

• Bias. No federal rule addresses bias. Abel is the case here. So, remember: the rules are an illusion of codification. We should not think that everything we need to know about evidence can be found within the rules. There's a lot of case law and history underlying the rules, and there are some topics-- like bias-- that aren't covered in the rules at all.
• Bias is never collateral. What is "collateral?" That means "immaterial" in this context. The bias of the witness is always a fact that matters. So if you have evidence that's relevant to establishing/disproving bias, it comes in (under 401/402), unless it doesn't (for some other reason).
• United States v. Abel
  So the government is going to call Ehle (alleged accomplice) to testify against Abel. Abel calls Mills to say that Ehle is a liar (is falsely testifying in exchange for benefits from the prosecution in his own case). The prosecution recalls Ehle to tell that Mills and Abel are in the Aryan Brotherhood.

  Note that in order to testify, Mills has to establish that he knows Ehle (i.e., from prison), and that he's heard him talk about the lies. So that would impeach Ehle on the basis of bias: he's got a reason to lie (reduced sentence).

  So the defense is introducing bias evidence against Ehle through Mills. That's 100% proper. Now the government recalls Ehle to show Mills's bias: he and Abel are members in Aryan Brotherhood, and membership in that organization requires that one lie, cheat, and so on, in support of one another. How does Mills know? Because he ALSO is a member, and therefore a fortiori it would have been suicide for me to tell Mills that I was going to rat on Abel.

  Is this extrinsic evidence? Yes. Does that mean it's inadmissible? No, because it's relevant now that the issue has been raised and bias is never collateral.

  What kind of thing would keep out relevant evidence of bias? Rule 403. That's always the last stop on the analytical choo-choo train of admissibility.

  Is it prejudicial? Of course. Unfairly so? Well, the trial court didn't let the gang get named, because it's inflammatory: it has to be just called "a secret prison gang." What's important here is not the name of the gang, but its tenets. That's pretty sharp of the district judge, actually. This sort of instruction is quite common, it seems.

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• What are some things that might be indicators of bias?
  • Family (for or against)
  • Money (financial stake in the outcome, bribed, maybe rich people stick together-- or poor people; the government might promise not to pursue forfeiture of some assets)
  • Loyalty (employment, Aryan Brotherhood, social, neighborhood, ethnicity, etc.)
  • Religion (for or against, again, but it might have several biases-- but see Rule 610, which appears to bar exploration of bias resulting from religious views)
  • Immunity (direct incentive to please someone who promises not to prosecute you; immunity grants are always conditioned on the witness telling the truth)
  • Personal history (some prior event, basically, that colors your world view)
  • Politics (potentially, anyway; see the Scooter Libby trial... he's indicted in DC, which votes 97% democratic)
  • Profession/absence of profesion
  • Intimate or sexual relationship
  • Paid for testimony (e.g., an expert)
  • Physical appearance (e.g., prejudice against extreme obesity)
  • Mental illness (this can also be an issue for accuracy of perception)
  The list can go on, of course. Bias is as varied as the number of witnesses that might come to testify. Every witness has some biases, and (almost) no matter what it is can be proper fodder for impeachment.
• Note that as a practical matter, 610 may be somewhat moot: you don't want to be cross-examining a witness about their religion-- too much risk of offending a juror. Just don't go there: the potential for it blowing up on you is just too huge. Politics might be another potential source of bias.
• Impeachment by character for untruthfulness. How do we go about this? Generally, we're talking about Rule 608, here. Opinion about truthfulness and reputation for truthfulness are admissible as long as it doesn't go into extrinsic evidence of specific instances. You can ask about specific instances on cross, but you are stuck with the answer.