Evidence Question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
jacksonmead
Posts: 52
Joined: Mon Mar 07, 2011 12:15 pm

Evidence Question

Postby jacksonmead » Tue May 07, 2013 2:27 pm

I have a question about character evidence.

FRE 405 governs the method of introduction for permissible uses of character evidence. Generally, this needs to be in the form of reputation or opinion (with obvious exception in 405(b)). However, 404(a) allows evidence of specific acts to be inquired into on cross examination. In situations where there is a character witness this seems to be limited to proving whether or not the character witness knows enough to make an informed opinion. Thus one could ask a character witness "did you know he was arrested for so and so." US v. Michelson suggests this cannot be used for establishing the defendant did or did not actually get arrested, it's just to prove whether the character witness knows enough to make an informed opinion.

So, in a case in which a criminal defendant has made himself his own character witness and has thus opened the opportunity for the prosecution to introduce character evidence, (see 404(2)(A)) can the prosecution ask about specific acts? For example if a defendant says "i'm not a violent person" can the prosector respond on cross examination with questions such as "were you not arrested for assault three years ago?"

It's on cross examination so it seems it should be allowed. 405(a) says "On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct." But this inquiry also seems to conflict with Michelson that such inquiries should only be made when establishing whether the character witness knows enough to testify.

I hope this is clear. Happy to explain more if anyone is willing to offer an opinion. Thanks kindly.

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Evidence Question

Postby nevdash » Tue May 07, 2013 3:29 pm

Yes, the prosecution can ask the defendant about specific instances on cross. We never read Michelson in my Evidence class, but this:

jacksonmead wrote:But this inquiry also seems to conflict with Michelson that such inquiries should only be made when establishing whether the character witness knows enough to testify.


is almost certainly wrong. When you ask a character witness "did you know that X was convicted of Y" on cross, even if you're asking the defendant "weren't *you* convicted of Y," you're not asking the question in order to establish that the witness knows enough to testify. You're asking it to probe more into the basis on which the person formed his opinion that he testified about on direct. That doesn't change whether the witness is testifying about his own character or someone else's.

User avatar
Tom Joad
Posts: 4542
Joined: Thu Dec 04, 2008 5:56 pm

Re: Evidence Question

Postby Tom Joad » Tue May 07, 2013 11:30 pm

Ok, another evidence question. In my notes for Rule 403 I have written "Applies to all evidence except party admissions." I am pretty sure that is wrong. I think 403 applies to all evidence except impeachment by evidence of past crimes.

User avatar
InnocuousDiatribe
Posts: 193
Joined: Thu Aug 04, 2011 10:40 pm

Re: Evidence Question

Postby InnocuousDiatribe » Wed May 08, 2013 2:21 am

Tom Joad wrote:Ok, another evidence question. In my notes for Rule 403 I have written "Applies to all evidence except party admissions." I am pretty sure that is wrong. I think 403 applies to all evidence except impeachment by evidence of past crimes.


Yup. E.g., D is charged with possession of a firearm as a convicted felon. Prosecution wants to admit party admission that he had been making meth. May be relevant (maybe he owned the gun to defend his meth lab), but likely unfairly prejudicial.

User avatar
Tom Joad
Posts: 4542
Joined: Thu Dec 04, 2008 5:56 pm

Re: Evidence Question

Postby Tom Joad » Wed May 08, 2013 2:55 am

InnocuousDiatribe wrote:
Tom Joad wrote:Ok, another evidence question. In my notes for Rule 403 I have written "Applies to all evidence except party admissions." I am pretty sure that is wrong. I think 403 applies to all evidence except impeachment by evidence of past crimes.


Yup. E.g., D is charged with possession of a firearm as a convicted felon. Prosecution wants to admit party admission that he had been making meth. May be relevant (maybe he owned the gun to defend his meth lab), but likely unfairly prejudicial.

ty ty. I think I screwed up because party admissions don't need a foundation in personal knowledge and I wrote 403 instead.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: No registered users and 4 guests