That's Improper Character
Even if character evidence clears the 404 hurdle, what FRE must it still satisfy to be admissible?
FRE 403 - Relevant Evidence
On the first question of Direct Examination, the Defense Attorney asks his client:
"You weren't at the scene of the robbery that night, were you?"
What Objection should the Prosecutor make?
Leading
(FRE 611)
The Defendant testifies:
"Mary told me she hates puppies!"
What objection should the Prosecutor make?
Hearsay
(FRE 801)
The witness in a burglary case testifies:
"The Defendant's favorite ice cream is pistachio."
Why is this not relevant?
Not material (related to a fact of consequence in the case).
When can an attorney ask leading questions?
Cross-Examination
BONUS: Hostile Witnesses and Adverse Parties
What type of evidence may be offered on a direct examination regarding character?
Specific instances of the witness's conduct
(FRE 608 and 404)
The Witness and Defendant have never met before. The Witness testifies:
"The Defendant was thinking about hitting his boss with his car."
What Objection should the Defense Attorney make
Lacks Personal Knowledge
(FRE 602)
What is the definition of hearsay?
An out-of-court statement that is being offered for the truth of the matter asserted
The witness testifies:
"The defendant owns a red car, and the getaway car I saw was red."
Why is this statement relevant?
It is more likely that the defendant was the getaway driver in the crime
When can a Defendant offer evidence of their pertinent traits through a witness?
In a criminal case
(FRE 404 (a)(2)(A))
This word describes when an attorney uses evidence of a person's character or a prior act to argue that they acted the same way on the occasion in question
Propensity
Which of the following is not a real objection?
1. Asked and Answered
2. Narrative
3. Compound Question
4. Badgering the Witness
5. Non-Responsive
Badgering the Witness
Proffered statements from whom are never hearsay?
From a party-opponent
The attorney asks the witness: "Where were you that night?"
The witness responds: "I don't know. You should ask John. John's my best friend. He has a new bike. It's shiny. He won't let me ride it."
Why is this not relevant?
Because the statements about John and his bike are not probative of any material issue in the case — they don’t help prove or disprove what matters.
When can a witness form a conclusion or state their opinion?
When they are an Expert Witness discussing their field
(FRE 702)
When can a witness's character for truthfulness be admissible?
Only after it has been attacked first
(The door to their truthfulness must be opened first)
(FRE 608(a)(2))
The Witness, a car salesman, testifies:
"From the way the Defendant’s hands were shaking, I could tell he was experiencing alcohol withdrawal."
What Objection should the Defense Attorney make?
Improper Lay-Witness Opinion
(FRE 701)
A witness testifies:
"The Defendant told me he was going to kill me, so I ran out of the house as fast as possible!"
What is the exception to the witness's hearsay?
Effect on the Listener
Under FRE 403, the judge can exclude relevant evidence if its probative value is ________________________.
substantially outweighed by unfair prejudice
When can character evidence be offered if the door wasn't opened for it, and no pertinent trait is being offered?
Impeachment Purposes.
Ex: Witness testifies he's never been convicted of a crime, so prosecutor introduces his perjury conviction from three years ago.
When are previous bad acts admissible to prove character?
MIMIC:
Motive
Intent
Mistake
Identity
Common Scheme or Plan
Knowledge
(FRE 404(b)(2))
The Prosecutor says in his Opening Statement:
"The Defendant has always been an angry person. Angry people tend to commit more crimes."
What objection should the Defense make?
Improper Character Evidence
(FRE 404)
What two kinds of statements are not hearsay, because they aren't assertions of fact?
Questions and Commands
Is it objectionable for the prosecutor to offer a photo of the victim with stab wounds into evidence?
It depends! It must survive the 403 balancing test. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of prejudice.
In order to make a present-sense impression hearsay exception, what must the witness have?
Personal Knoweldge