Character
Hearsay
Grab bag
100
D is charged with a misdemeanor for public fighting. D gets on the stand and claims self-defense: that while he did engage in the fighting, it was only in response to being attacked first. May the prosecution ask D on cross about two prior instances of (uncharged) public fighting, in which witnesses claim D was the instigator?
What is NO?
Propensity? yes - D instigated on prior occasions, therefore D probably instigated here/is a violent person.
404a2? yes a crim case but D has not put character in issue. And while pros can offer character E of victim in a homicide case, this is not homicide and is not the victim.
608/609? D is a witness. these are uncharged so not convictions. so we are in 608 space. character can be attacked and specific acts ok on cross, but arguably not character for truthfulness. Indeed, by analogy to 609, if these were convictions, they would be non-crimen falsi misdemeanors and inadmissible precisely bc they dont bear on truthfulness.
kicked out by 403
100
During the trial of the baffling 7-minute Louvre heist captivating the world, an officer who immediately responded (arriving on the scene minutes after the robbery took place) testifies that one of the docents, between gasps for air as she was still under the shock of witnessing the incident, told him that "they were wearing construction vests and carrying tools." If offered by the prosecution to prove that the robbers were wearing construction vests, is that hearsay?
Yes! Clearly hearsay - assertion that they were wearing construction vests, and being offered to prove that.
For those of you confused how this could not come in (firsthand witness account) - it will be able to come in - this is an excited utterance (close in time and witness still under the shock of the incident).
100
The family of a deceased individual brought a wrongful death suit for use of excessive force against Officer Frank. The family claims that their son was shot and killed as he was running away from a shoplifting incident, and that he showcased no threat to the officer. The officer's story is that the deceased acted threatening and so his use of force was reasonable.
The deceased plaintiff's family seeks to put the plaintiff's sister on the stand, who will testify that her brother (victim) was a kind and gentle individual who never tended to resort to aggression or violence even in tense situations. The plaintiffs hope this testimony will further bolster their argument that the deceased presented no threat to the officer.
The defendant objects that this violates 404. What is the likely result?
A) Admissible - this is not propensity evidence
B) Admissible - 404a2 allows for a true exception to the propensity bar for the victim's trait of peacefulness
C) Inadmissible - it violates Rule 405 because it is in the incorrect form
D) Inadmissible - there is no quasi or true exception allowing for the admission of this testimony
What is D?
This is a CIVIL case! you must always remember the context of the rule.
The move that defendant tends to be peaceful and so therefore was likely peaceful on this occasion is clearly a propensity move.
If this were a homicide case, this likely would be admissible because the prosecution may offer evidence of the V's peacefulness to rebut allegations that V was first aggressor, and the testimony does not violate form restrictions (opinion/reputation).
200
Defendant is on trial for possessing and trafficking illegal narcotics, including cocaine and heroin.
The defense calls to the stand one of his former fellow volunteers at the community detox center, who testified that D cares deeply about the combatting the addiction crisis and he highly doubts he would run a narcotics ring.
On cross, the prosecution asks if the witness if he was aware of various reports that the defendant has been observed kicking his dog and leaving him tied up by a chain for hours in his backyard without water.
Is this line of questioning admissible?
What is NO?
In 404a2.
While the defendant has opened the door to character and the testimony is in the correct form (specific acts on cross), there is a pertinent trait problem here.
mistreatment of the animal appears to say little about testing the witness's knowledge about the defendant's caring about the addiction crisis in the community.
ultimately, this is a balancing test between PV of the testing and UP of the jury disliking the D for this behavior.
200
In a recent rendition of Gene Kelly's "Singin' in the Rain" on Broadway, the male lead performs the classic scene in which he opens his umbrella and swings around a light pole. Unfortunately, the actor missed his cue and opened the umbrella at the wrong time, injuring one of his cast mates. In a subsequent negligence action brought by his cast mate for the injuries sustained from the accident, is the testimony of an audience member about the opening of the umbrella hearsay? 
A) No - opening an umbrella is not a statement
B) No - opening an umbrella is not an assertion
C) No - it is not offered for the truth of the matter
D) Yes - this is hearsay
C - Not offered for the truth of the matter.
Although normally the opening of an umbrella is classic non-assertive conduct, the play context makes this different. The actor is actually communicating something to the audience with his opening of the umbrella - that it is raining in the scene. The better answer is that it is not being offered for its truth - the plaintiff is not offering it for the message communicated by the statement (that it is raining in the scene) but just as evidence that this conduct occurred.
200
In a trial for embezzlement, a company's former treasurer has taken the stand in his defense after millions of dollars were transferred from the company to an off-shore bank account. He seeks to testify that, shortly before transferring the funds, he received a series of disturbing phone calls in which the caller told him he must transfer these funds or there "would be consequences," further stating that "he knows where his two daughters (Emma and Jennifer) live" (which were their names). Are these statements hearsay?
What is NO! Effect on the listener. The defense is not offering the statement to prove that the caller was actually going to harm the daughters if he did not transfer the funds, but to prove that D was under duress and therefore justified in engaging in the conduct.
300
Defendant, the owner of a ranch that uses horses for herding cattle, is on trial for violation of the state's animal cruelty statute (unreasonably failing to care for animal in custody).
The prosecution's theory of the case is that defendant failed to have his horse treated for a heart condition, but rather continued to work the horse strenuously.
Defendant contends that the horse's heart condition was asymptomatic, and that the horse suddenly collapsed without showing any symptoms.
The defendant brings his veterinarian to testify that she saw the horse at a check-up a month prior to the incident, and that she did not notice any signs of heart irregularities.
The prosecution then offers the veterinarian's former vet school professor to testify that she was known in vet school for being very deceitful, and that he does not and would not trust her.
On cross examination, the defense asks: "Isn't it true that you were recently disciplined by the Office of Research Integrity for falsifying results in a recent study that you published?"
Is this line of questioning admissible?
What is YES!
- The veterinarian testifies as a substantive witness, so not a character issue
- Prosecution is entitled to attack a witness's character for truthfulness under 608: propensity inference/character for lying; can always attack; opinion/reputation ok on direct)
- The cross examination is also allowed here: The difference between 404a2 and 608 is that the Michelson restriction is lifted for 608. Defense can question specific acts of C1 for propensity [to show C1 should not be trusted.] Defense could also ask here about truthful acts of the vet to test the professor's opinion of the vet.
300
A plaintiff is injured after a railway switch man, although signaling to the oncoming train (which P was on) that they were good to go, accidentally left the switch open to a sidetrack. As a result of this error, the oncoming train collided with another train that was stopped on the sidetrack. It is revealed shortly thereafter that the railway switch man was drunk on the job.
As it turns out, the switch man's former employer had told the railroad company that they had fired him from his previous job for showing up to work drunk on several occasions. The current rail company did not investigate the matter any further before hiring the switch man.
If the former employer testifies about what he told the current employer, is that hearsay?
What is NO - this is being offered for notice.
Statement? yes
Out of court? Yes - even though the former employer is testifying as to his own prior statement. Employer at T1 -> Employer at T2 (in court)
Truth of the matter?/Assertion? It is not offered for its truth. The plaintiff is using it to prove notice: that the D was on notice of Ds potential lack of fitness for the role, and that it was unreasonable to not look into it further. What matters is that these words were said to the employer and that they ignored the complaint.
Fact pattern inspired by: Cleghorn v. New York Central & Hudson River Railroad Co., 56 N.Y. 44 (N.Y. 1874).
300
Defendant is on trial (criminal) for sexual assault. H.L. (victim) testifies that D assaulted him.
The defense wants to offer evidence of H.L.'s (victim) previous sexual assault of defendant's son, which the D had reported to the police. H.L. was aware that D was the one to report.
Is this admissible?
OTOH: this textually is sexual behavior under 412. Rule is not a purpose-based rule. does not textually fall under either exception.
OTOH: you could make a due process argument here about motive/reason to lie (H.L. was vindictive against D for reporting to police) and also policies of rape shield are not in play - point of rule is to protect against tarring the victim/argument that V "asked for it" due to promiscuous behavior. And by analogy to 412 sexual assault perpetrators do not have the same privacy interests as victims
hypo came from: State v. Besk, 138 N.H. 412, 640 A.2d 775 (1994) (NH SC affirms lower court's exclusion of such evidence under state's version of rape shield. reasons that even if not barred by RS law (which qualifies the scope covered as sexual activity that is "consensual"), would still be excluded as lacking "relevance" bc no evidence to show victim knew of Ds role in reporting assault).
400
Defendant is on trial for drug dealing. D wants to testify, but his counsel warns him that this could be dicey given his former record. Indeed, D has a former conviction for attempting to import drugs. In the prior case, D was caught by customs officials with cocaine sewn into a T-shirt worn beneath an additional layer of clothing. D was convicted of the federal felony under the following statute:
"It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I, or any narcotic drug in schedule III, IV, or V of subchapter I, or ephedrine, pseudoephedrine, or phenylpropanolamine."
D was convicted 2 years ago, but has since been released. His conviction is currently on appeal. Will Ds prior conviction be admissible if he chooses to testify?
What is likely ADMISSIBLE?
If D testifies, 609 becomes operative.
The first question is whether this is a crimen falsi. Although the statute D was charged under just states "unlawful to import," if a judge can just look at the conviction order and see that it involved smuggling, that would likely be enough for automatic admissibility under 609a2. [remember, the key is whether the judge has to engage in a probing of the record, or if they can "readily determine" that the crime involved a dishonest act].
If not 609a2, then the admissibility of his prior conviction will be governed by 609(a)(1)(B), as this is a (1) felony; and (2) it is the criminal defendant. The standard is a 50/50 PV/UP balance.
Utilizing the Gordon factors:
At least two of the gordon factors weigh towards value of the E: nature of crime: involved dishonest-type behavior (point towards PV); time of conviction and subsequent history: recent crime (point towards PV)
another one of the factors seems to cut towards UP: similarity with crime on trial for: drug dealing and trying to import drugs seem to all be part of a broader type of behavior of engaging in the drug trade.
the other two factors (value of Ds testimony and centrality of the credibility issue) don't seem important on these facts, arguably cancel each other out.
I think the two factors for PV outweigh the match, but it's a balancing test.
[The fact that the prior conviction is currently being appealed is not a factor in the admissibility analysis (see 609(e)).]
[Fact pattern for the prior conviction comes from the facts of US v. Havens, a case about evidence suppression.]
400
A defendant is on trial after a woman is found tied up with rope, mouth covered with duct tape, and shot in the back of the head. The prosecution seeks to admit a "to-do" list found in defendant's home, which reads:
"To-Do:
- hardware store to pick up: rope, duct tape"
Is the to-do list hearsay?
Like the diary.
--> OTOH: self-assertion. no 3d party intended audience. So not hearsay
--> OTOH: to-do lists are classically assertions to your future self. the point of them is to remind your future self to do something. So yes hearsay
What about a circumstantial evidence argument?
It seems to me that circumstantial E is a difficult argument to make here. I think this is a harder case to make than if it were a journal entry describing methods of murder, because in that case you could make the argument you don't need it for its truth (likely have physical evidence) but for the coincidence between the fact that you said this and the reality.
The items are not significantly detailed/idiosyncratic that makes the evidence super probative. and it is important to the pros's story that the D actually needed/intended to get these items (assertion) (and the inference from there is that he went and got the items and committed the murder with them).
This gets hashed out at 403: how much evidentiary value is from the circumstantial move (PV) and how much evidentiary value from the TOTM move (UP).
[Although if can prove D wrote this, can be admitted as an opposing party statement, so arguably would be no UP]
400
In the trial of Karen Read, after her boyfriend was found dead in the snow after the two had been out with friends, one of the big issues was Read's level of intoxication on the night in question.
Unfortunately, all of the blood vials that were obtained after the accident for testing her BAC were somehow lost before they were able to be tested.
Read testifies in her defense, denying all allegations that she hit her bf with the car or was drunk.
The prosecution offers Read's mother-in-law as a witness, who testifies that Read has "a serious drinking problem" and that "she would not be surprised if she was hammered."
Is this testimony admissible?
Likely no - character without an exception or around the box move.
Propensity? Yes - the inference is that b/c she has a "serious drinking problem" (she is the type of person to drink a lot), she probably drank a lot on this occasion. This goes through the box.
Exceptions?
Habit - no, courts tend not to treat drinking as habit (moral content). There are also questions here about repetitiveness/voluntariness but the moral content will kick it out of habit definition.
404a2 - this is a criminal case so 404a2 might be available, but nothing in the facts suggests that defense has opened the door to character. Read's testimony just denied the allegations.
608 - 608 is also potentially available since Read testified. You can always attack and it is in the correct form. The question, however, is does this actually go to character for truthfulness? There is a strong 403 argument here that there is low probative value for this testimony as to Read's character for truthfulness, and high UP that the jury will use it for the impermissible general character move (drunk before, drunk now).