Evidence Question Forum

[tsutsik]

Anybody have a view about the answer to this question?

A defendant is charged with mail fraud. At trial, the defendant has not taken the witness stand, but he has called a witness
who has testified that the defendant has a reputation for honesty. On cross-examination, the prosecutor seeks to ask the
witness, "Didn't you hear that two years ago the defendant was arrested for embezzlement?"
Should the court permit the question?

(A) No, because the defendant has not testified and therefore has not put his character at issue.
(B) No, because the incident was an arrest, not a conviction.
(C) Yes, because it seeks to impeach the credibility of the witness.
(D) Yes, because the earlier arrest for a crime of dishonesty makes the defendant's guilt of the mail fraud more likely.

[Law-So-Hard]

Anybody have a view about the answer to this question?

A defendant is charged with mail fraud. At trial, the defendant has not taken the witness stand, but he has called a witness
who has testified that the defendant has a reputation for honesty. On cross-examination, the prosecutor seeks to ask the
witness, "Didn't you hear that two years ago the defendant was arrested for embezzlement?"
Should the court permit the question?

(A) No, because the defendant has not testified and therefore has not put his character at issue.
(B) No, because the incident was an arrest, not a conviction.
(C) Yes, because it seeks to impeach the credibility of the witness.
(D) Yes, because the earlier arrest for a crime of dishonesty makes the defendant's guilt of the mail fraud more likely.

Character evidence is permissible because the D has called a witness to testify that he has a reputation for honesty. Once the door to the defendant's character is opened the prosecution can produce character evidence on the D. On cross exam specific instances are okay. So I would say (D) - Yes because the earlier arrest for a crime of dishonesty makes the D's guilt of mail fraud more likely - it's relevant and probative to the issue in the case b/c mail fraud is also a crime of dishonesty.
I don't think C is right because I'm not sure how this question would impeach the credibility of the witness -by showing through a specific instance that actually the witness is wrong about the defendant's reputation? I feel like (C) mixes up the rules or something.
(B) seems irrelevant b/c the rules on impeachment re: whether it was an arrest, conviction for felony, misdemeanor, whatever - only matter when you're discussing impeachment of a witness.
(A) irrelevant b/c the def opened the door to his character

I guess I'm stuck between D and C but I would go with D because this is a case involving character and you can question on cross about specific instances.

[jd20132013]

answer should be C.

*scrolls down*

yeah, C is the correct answer. when a witness testifies about the defendant' character, asking him about specific instances of the defendant demonstrating a lack of that character impeaches his credibility (how good could you really know the defendant if you haven't heard about this? OR if you have heard about it, how could you just say he had a good character for that trait).

for it to be D you'd have to be bringing it in substantively and I think there's further requirements for that

[yips]

Anybody have a view about the answer to this question?

A defendant is charged with mail fraud. At trial, the defendant has not taken the witness stand, but he has called a witness
who has testified that the defendant has a reputation for honesty. On cross-examination, the prosecutor seeks to ask the
witness, "Didn't you hear that two years ago the defendant was arrested for embezzlement?"
Should the court permit the question?

(A) No, because the defendant has not testified and therefore has not put his character at issue.
(B) No, because the incident was an arrest, not a conviction.
(C) Yes, because it seeks to impeach the credibility of the witness.
(D) Yes, because the earlier arrest for a crime of dishonesty makes the defendant's guilt of the mail fraud more likely.

Answer (C).
Not A because the defendant need not take the stand in order to call character witnesses (who may then be cross-examined).
Not B because the prosecutor is not entering evidence of the arrest as a prior bad act. Rather, the prosecutor is asking the question to the witness to test the witness's knowledge of the defendant's honesty.
C: As noted, the prosecutor is testing the witness's knowledge. This question impeaches credibility if the witness had no idea about the arrest and thought the guy was honest based on incomplete information.
Not D because this answer choice is using character evidence as propensity evidence, which is impermissible. Plus it's an arrest, not a conviction, so it can't be used for other non-propensity purposes.

Edit: You got there before me.

[Law-So-Hard]

ooh that makes sense

[tsutsik]

I'm having trouble understanding why (D) is wrong, though I can see why (C) would also be right. After the D has put his character at issue (which he is entitled to do in a criminal case), can't the prosecution ask about ANY misconduct (including mere arrests) that bears on the character trait?

[Tanicius]

I'm having trouble understanding why (D) is wrong, though I can see why (C) would also be right. After the D has put his character at issue (which he is entitled to do in a criminal case), can't the prosecution ask about ANY misconduct (including mere arrests) that bears on the character trait?

I can see why D is an attractive answer. Typically, if he was on trial for a crime not involving honesty, such as for murder, it would have been improper for him not to testify and yet call a witness to say he's an honest person, since honesty is not relevant for a non-testifying witness. However, in a fraud case, honesty actually goes towards your propensity to commit a crime like fraud, so the witness probably did properly open the door to all issues of the defendant's propensity to commit a crime.

[jd20132013]

i think you aren't allowed to ask about arrests in that vein, because they are insufficiently probative (anyone can be arrested).

i think if the prosecutor had asked "have you heard that X was convicted" or introduced a certified conviction, that would have been ok for the purpose you just mentioned.


hopefully someone can confirm.

[Tanicius]

i think you aren't allowed to ask about arrests in that vein, because they are insufficiently probative (anyone can be arrested).

i think if the prosecutor had asked "have you heard that X was convicted" or introduced a certified conviction, that would have been ok for the purpose you just mentioned.


hopefully someone can confirm.

There we go, bingo. Arrests are not valid evidence of criminal propensity even when the defendant's propensity has been placed at issue.

[yips]

I'm having trouble understanding why (D) is wrong, though I can see why (C) would also be right. After the D has put his character at issue (which he is entitled to do in a criminal case), can't the prosecution ask about ANY misconduct (including mere arrests) that bears on the character trait?

In general, a witness can be cross-examined about specific acts after testifying about the defendant's or the witness's own character for truthfulness. BUT there is a huge exception for arrests. Arrests are not instances of misconduct in themselves; therefore, they are not prior bad acts. The conduct underlying the arrest is fair game, though, so the prosecutor could ask, for example "Didn't the defendant embezzle two years ago?"

So, you are correct that the prosecution can ask about misconduct for some purposes. However, the reasoning in answer (D) makes it incorrect because it suggests a propensity purpose, which is improper. If it said something else, like knowledge of how to defraud or something, that would be okay.

This is a pretty subtle question.

[tsutsik]

So, for the Barbri-ers, I'm looking at page 7 of the Evidence CMR. Specifically, "How Prosecution Rebuts Defendant's Character Evidence" and the Exam Tip just below. It seems to say that you are allowed to ask about arrests when cross examining a defendant's character witness. I'm getting confused.

Thanks for the help, all.

[jd20132013]

So, for the Barbri-ers, I'm looking at page 7 of the Evidence CMR. Specifically, "How Prosecution Rebuts Defendant's Character Evidence" and the Exam Tip just below. It seems to say that you are allowed to ask about arrests when cross examining a defendant's character witness. I'm getting confused.

Thanks for the help, all.

Yes, but only to impeach, as in question C. Not for the substantive purposes suggested in question D.

EDIT: In other words, there's nothing wrong with the question in itself. Whether its okay turns entirely on whether it's coming in for impeachment (ok, because we're only concerned with whether the witness has heard) or for substantive purposes (not ok, because a mere arrest is insufficiently probative of character, even though the defendant admittedly has put his character for that trait in issue. What would be permissible then would be introducing a certified copy of a conviction that resulted from the arrest)

[tsutsik]

So, for the Barbri-ers, I'm looking at page 7 of the Evidence CMR. Specifically, "How Prosecution Rebuts Defendant's Character Evidence" and the Exam Tip just below. It seems to say that you are allowed to ask about arrests when cross examining a defendant's character witness. I'm getting confused.

Thanks for the help, all.

Yes, but only to impeach, as in question C. Not for the substantive purposes suggested in question D.

Sorry. I'm really confused here. Page 7 is talking about rebuttal to a D's character witness (which rebuttal goes to D's character), not impeachment of D's character witness. I understand (I think) that you can't ask about the witnesses arrests when you're impeaching the witnesses credibility, but I thought you could ask about the D's arrests on cross when rebutting the D's character witness's testimony. Isn't the latter what's going on here?

[Georgia Avenue]

Prior bad acts are never admissible simply to show propensity to commit the crime in question. If you want to use prior bad acts as substantive evidence they have to fall into the exception categories: intent, motive, lack of mistake, modus operandi, etc. However, prior bad acts of the defendant can always be used to impeach the testimony of a witness testifying to the D's good character. It impeaches because it shows either a) he did not know of these incidents when he formed his opinion as to D's character, making his testimony unreliable and not credible, or b) he knew and still formed that opinion, which also discredits his opinion. They rarely, if ever, come in to show the D's substantive guilt of the crime in question.

When the prosecutor asks, he also cannot use extrinsic evidence to "prove up" the arrests or bad acts. You have to take the witness's answer and move on.

[mmmnnn]

i think you aren't allowed to ask about arrests in that vein, because they are insufficiently probative (anyone can be arrested).

i think if the prosecutor had asked "have you heard that X was convicted" or introduced a certified conviction, that would have been ok for the purpose you just mentioned.


hopefully someone can confirm.

This is my understanding as well. In fact, I think the prosecutor could ask, "Did you hear D committed this bad act that contradicts the reputation/opinion testimony you just gave?" but could not ask, "Did you hear D was arrested for this bad act that contradicts the reputation/opinion testimony you just gave?"

[Sandro]

I got it right! C ! wooo.

Character evidence was easily my worst Evidence subtopic because I didn't really remember anything concrete from evidence.

[Tanicius]

i think you aren't allowed to ask about arrests in that vein, because they are insufficiently probative (anyone can be arrested).

i think if the prosecutor had asked "have you heard that X was convicted" or introduced a certified conviction, that would have been ok for the purpose you just mentioned.


hopefully someone can confirm.

This is my understanding as well. In fact, I think the prosecutor could ask, "Did you hear D committed this bad act that contradicts the reputation/opinion testimony you just gave?" but could not ask, "Did you hear D was arrested for this bad act that contradicts the reputation/opinion testimony you just gave?"

What's stupid about it, on a fundamental level, and why this wouldn't work IRL, is that there's no foundation to believe the arrest incident even actually happened. To be an effective impeachment, the prosecutor would at least require a good faith basis to believe the arrest actually happened; more than likely, he wouldn't be able to even ask about it unless he first convinced the judge by a preponderance of the evidence that it did happen. Otherwise this question would run afoul of 403 all the time -- people would be making shit up just to test the resolve of the witness.

[encore1101]

I'm having trouble understanding why (D) is wrong, though I can see why (C) would also be right. After the D has put his character at issue (which he is entitled to do in a criminal case), can't the prosecution ask about ANY misconduct (including mere arrests) that bears on the character trait?

D) is wrong because the Prosecutor can't bring up past arrests or convictions to show that the Defendant likely acted in accordance with the previous act, i.e. "He did it before, he must have done it again this time!" It's not sufficiently probative of whether he committed the crime currently charged. "Once a crook, always a crook"-purposes are not allowed.

When a character witness testifies to a relevant character trait of the defendant, the Prosecutor can impeach the character witness' credibility by showing that he either doesn't know everything about the defendant, or that the witness is being incredible by saying that he (the witness) thinks the defendant has a reputation for honesty, despite being arrested for mail fraud.

[Asleep]

Can I get a conviser cite to asking about arrests being okay on impeachment?

My initial thought was B.

[Georgia Avenue]

I think people are getting two different forms of impeachment confused.

Impeachment of a character witness with the defendant's prior bad acts allow basically anything related to come in for the limited purpose of impeaching the witness's opinion, so long as the prosecutor has a good faith basis for asking. This is because they contradict the opinion that the D is of good character or possesses a relevant good trait. The impeachment here is "Mr. Witness, your opinion isn't credible because you didn't know about the defendant doing X act." We admit the prior acts because they directly contradict the witness's opinion, rather than impeach the witness's general character for truthfulness.

Impeachment of a witness's general character for truthfulness with a prior criminal act is generally not allowed unless it fits into the 2 categories - crimes of dishonesty or felonies. It's a different situation because that goes to the credibility of the witness in a different matter - "Mr. Witness, you're not believeable - regardless of what you're testifying about - because you yourself were convicted of X." In this category, misdemeanors not involving dishonesty and arrests are not admissible because they aren't probative of that witness's general character for truthfulness.

[At the Drive-In]

Can I get a conviser cite to asking about arrests being okay on impeachment?

My initial thought was B.

Evidence, Page 7, D(b)(1)+Exam Tip at the bottom of the page.

"Any misconduct, including prior arrests, may be inquired about while cross-examining defendant's character witness. Remember, however, that the prosecutor is limited to inquiry of the witness; she may not introduce any extrinsic evidence of the misconduct. Be careful to distinguish asking a character witness whether he is aware of the defendant's prior arrests which is proper, and impeaching a witness with the witness's arrests, which is improper."

Further, page 24 d(1) + Exam Tip

[prezidentv8]

My evidence question:

Shit from da Google maps or street view -- can u judicial notice dat shit into dat evidence?

If no -- how dafuq u get dat into evidence?

[Law-So-Hard]

My evidence question:

Shit from da Google maps or street view -- can u judicial notice dat shit into dat evidence?

If no -- how dafuq u get dat into evidence?

Kind of thinking no judicial notice because it's not a source of unquestioned accuracy, especially on my Iphone.

[prezidentv8]

My evidence question:

Shit from da Google maps or street view -- can u judicial notice dat shit into dat evidence?

If no -- how dafuq u get dat into evidence?

Kind of thinking no judicial notice because it's not a source of unquestioned accuracy, especially on my Iphone.

been thinkin hard bout dis one, since erry defendant and dey cronies in dis case swears dey don kno nuthin but nuttin but dat google street view got dat info i need

[At the Drive-In]

My evidence question:

Shit from da Google maps or street view -- can u judicial notice dat shit into dat evidence?

If no -- how dafuq u get dat into evidence?

Kind of thinking no judicial notice because it's not a source of unquestioned accuracy, especially on my Iphone.

been thinkin hard bout dis one, since erry defendant and dey cronies in dis case swears dey don kno nuthin but nuttin but dat google street view got dat info i need

Some circuits have said that you CAN judicial notice google maps, at least the satellite photos because it's akin to taking judicial notice of geography and their accuracy is too reliable to be questioned. But yeah, otherwise people are gonna say "oh sorry I don't recognize this aerial view of this street"