Admissibility of Specific Conduct

StrictLiability
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Admissibility of Specific Conduct

Postby StrictLiability » Mon Jul 10, 2017 4:23 pm

Hi people-

I'm having some trouble conceptualizing when specific conduct (rather than opinion or reputation testimony) is admissible evidence. I'm a little confused based on (perceived) inconsistencies between Themis lectures and Critical Pass cards.

Anyone have a grasp on a concise method for keeping a grasp on it?

Babum
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Re: Admissibility of Specific Conduct

Postby Babum » Tue Jul 11, 2017 12:05 pm

StrictLiability wrote:Hi people-

I'm having some trouble conceptualizing when specific conduct (rather than opinion or reputation testimony) is admissible evidence. I'm a little confused based on (perceived) inconsistencies between Themis lectures and Critical Pass cards.

Anyone have a grasp on a concise method for keeping a grasp on it?


So you can impeach someone through specific acts through cross (to challenge knowledge about reputation or opinion) but you cannot use extrinsic evidence of bad acts UNLESS the bad act goes to prove any of a number of things. If used to proved that the person had knowledge, intent, plan or common scheme (and I'm sure I forgot a couple) then it is admissible (absent a FRE 403 problem).

hockeyman969
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Re: Admissibility of Specific Conduct

Postby hockeyman969 » Thu Jul 13, 2017 9:42 am

StrictLiability wrote:Hi people-

I'm having some trouble conceptualizing when specific conduct (rather than opinion or reputation testimony) is admissible evidence. I'm a little confused based on (perceived) inconsistencies between Themis lectures and Critical Pass cards.

Anyone have a grasp on a concise method for keeping a grasp on it?


Admissible when character is an essential element: negligent entrainment, negligent hiring, child custody, defamation, fraud.

ConfusedL1
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Re: Admissibility of Specific Conduct

Postby ConfusedL1 » Thu Jul 13, 2017 9:58 am

DLT.
Last edited by ConfusedL1 on Thu Jul 13, 2017 10:02 am, edited 1 time in total.

ConfusedL1
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Re: Admissibility of Specific Conduct

Postby ConfusedL1 » Thu Jul 13, 2017 10:02 am

ConfusedL1 wrote:Can you offer extrinsic evidence of prior bad acts as evidence probative of truthfulness?

I know you can do it with basically any crime that involved dishonesty, but I'm not sure about the acts themselves.


Nvm It's in 608.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

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TheWalrus
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Re: Admissibility of Specific Conduct

Postby TheWalrus » Thu Jul 13, 2017 10:11 am

Related, when can you use evidence of a conviction. Like, a record of conviction. Only for impeachment or what?

ConfusedL1
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Re: Admissibility of Specific Conduct

Postby ConfusedL1 » Thu Jul 13, 2017 10:35 am

TheWalrus wrote:Related, when can you use evidence of a conviction. Like, a record of conviction. Only for impeachment or what?


Generally, yes. It's usually only relevant to the extent it hurts their credibility, BUT it could be substantive to the extent it supports the MIMIC stuff, I think. Very fact specific.

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TheWalrus
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Re: Admissibility of Specific Conduct

Postby TheWalrus » Thu Jul 13, 2017 10:40 am

ConfusedL1 wrote:
TheWalrus wrote:Related, when can you use evidence of a conviction. Like, a record of conviction. Only for impeachment or what?


Generally, yes. It's usually only relevant to the extent it hurts their credibility, BUT it could be substantive to the extent it supports the MIMIC stuff, I think. Very fact specific.


And you can't use evidence of a conviction for a specific crime in a latter civil case, right?
Like the OJ case, if he had been found guilty, Nicole's family couldn't have used the conviction in the civil case. Correct?

And thanks.

ConfusedL1
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Re: Admissibility of Specific Conduct

Postby ConfusedL1 » Thu Jul 13, 2017 10:58 am

TheWalrus wrote:
ConfusedL1 wrote:
TheWalrus wrote:Related, when can you use evidence of a conviction. Like, a record of conviction. Only for impeachment or what?


Generally, yes. It's usually only relevant to the extent it hurts their credibility, BUT it could be substantive to the extent it supports the MIMIC stuff, I think. Very fact specific.


And you can't use evidence of a conviction for a specific crime in a latter civil case, right?
Like the OJ case, if he had been found guilty, Nicole's family couldn't have used the conviction in the civil case. Correct?

And thanks.


That's interesting. Let's look at 609: https://www.law.cornell.edu/rules/fre/rule_609

Initially I thought yes because it's a conviction of a felony, but he's the defendant in this case (it MUST be admitted if he's a non-party witness if it passes 403).

So I think it's judge's discretion based on 403 even if P makes a colorable MIMIC argument. I assume it might fail because "I was convicted of killing this woman" is damingly prejudicial, but the standard is "unfairly" prejudicial and there's a strong argument a full trial + conviction is fair game.

I cannot imagine OJ taking the stand in the civil case. He'd get murdered on cross. He has entire record of prior statements (and probably inconsistent ones).

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Jon_Snow
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Re: Admissibility of Specific Conduct

Postby Jon_Snow » Thu Jul 13, 2017 11:13 am

TheWalrus wrote:Related, when can you use evidence of a conviction. Like, a record of conviction. Only for impeachment or what?



    1. Is this a Sexual Assault/Molestation case? --> D's prior conviction of sexual assault and molestation is permitted.

    2. Criminal convictions are Prior Bad Acts. --> These are not allowed to prove character but OK for MIMIC or Impeachment.

    3. Impeachment --> Convicted Witness or Convicted Def. must actually be testifying.

      a. Dishonesty/Fraud --> Did the Felony or Misdemeanor crime require proof of dishonesty or fraud for a conviction? --> If yes, then admissible.

      b. Convictions/Releases less than 10 yrs old. --> Must have been a Felony --> Gov't must show probative value > prejudicial effect. If you have a Misdemeanor, is it Dishonesty/Fraud?

      c. Convictions/Release more than 10 yrs old. --> Not admissible unless probative value > prejudicial effect.

      d. How to determine 10 years. --> 10 years from conviction OR release from jail, whichever is more recent.

hockeyman969
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Re: Admissibility of Specific Conduct

Postby hockeyman969 » Thu Jul 13, 2017 2:24 pm

I love these answers, the causes of action where character is in issue which allows Reputation, Opinion or Specific Act are:

Negligent entrustment
Negligent hiring
Child Custody
Defamation
Fraud

The MBE will sometimes put you in a state court on a state court cause of action. Should not stay fixated on the fed rules only because there are a lot of states that subscribe the fed rules in part and parcel: NJ I'm looking at you.

But then again I'm off to a new world there are separate rules for each day....




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