Applied Relev., Proced. of Quest.'ing W, & Impeachment
- Excl. Evid. of Fault
- Offers of Humanitarian Aid (CEC 1152)a)
- FRE 409: Med. / similar expenses caused by injury
- Liab. Ins. Policy
- Could use 2 prove anything else relev. in case
- Offers of Settlement, Compromise, / Adm's From
- Subseq. Remedial Conduct
- Prod. Liab.
- CA not rely on subseq. repairs rule 2 excl. evid.
- Fed. does rely 2 excl. even in prod. liab. cases
- Feasibility Rule
- Can't excl. if evid. offered 2 prove feasible
2 do something
- Similar Happenings
- Res Inter Alios Acta
- Gen'ly can't rely on occasion Z 2 prove occasion
- Adm. If Relev. by Factors
- Similarities btwn 2 occasions
- Narrowness of issues
- Need 2 use
- Charact. Evid.
- Specif. acts
- Opinions from those who know (never used in C/L)
- Reputation from those who not know
- Charact. itself an issue (BLR #1)
- Use all 3 ways in Fed. & CA
- Use specif. act & reputation only in C/L
- Person's charact. as circ.'al evid. of conduct
on partic. occasion
- BLR #2 & 3: Civil & prosec.'or in crim.
can't use any charact. evid. 2 prove conduct on partic. occasion
- Exception in Fed. civil axn 4 damages 4 sex assault
/ child molestation
- Exception in Fed. & CA in crim. 4 sex assault,
child molestation, & (CA) domestic viol.
- BLR #4: In crim., D can use reputation evid.
2 prove he didn't do it (& opinion in Fed & CA)
- BLR #5: Prosec.'or may cross D charact. W's &
ask about specif. acts, incl.'ing noncrim. conduct
- BLR #6: Prosec.'or may call rebuttal W's 2 testify
2 bad reputation (/ opinion in Fed & CA) after cross
- BLR #7 4 Charact. of V of crime
- In crim., D may offer evid. about V's charact.
2 prove V's conduct
- C /L only ok reputation
- FRE 404)a ok reputation & opinion
- CEC 1103 ok all
- Prosec'or can offer rebuttal evid. about V's
- In CA, rebuttal incl's D's charact. evid.
- Inapplicable 4 rape / other sex cases (FRE 412)a)
- Any alleged V engaged in other sex behav.
- Evid. of any alleged V's sex predisposition
- Specif. acts ok if evid. (FRE 412)b)
- It wasn't this crim. D caused injury / is source
- Specif. sex behav. 2 prove consent
- Excl. would viol. Const'al rts of D
- Chambers Case 4 D/P rt.
- Compulsory W pwr by 6th amend.
- Proced. safeguards if D gives V's prior sex conduct
as evid. (FRE 412)c)
- Advance notice 2 prosec'or & V
- Describe evid.
- Explain 2 judge why evid. ok
- Judge holds in camera hrg
- Impeachment (disc'ed later)
- Noncharact. Use of Specif. Acts
- Person's specif. response 2 specif. stimulus
w/predictiveness in repetition
- Circ'al evid. that axn occurred
- Habit 4 institution
- Something Else Relev. 2 Case
- FRE 404)b & CEC 1101)b: If really relev.
4 other stuff, adm'able if probative value outweighs dang.'s
- Doc. of chances so less likely 2nd
accident of same incident would occur
- Srch 4 common fact sig. 2 D's crime 2 adm. evid.
of other crimes
Proced. of Quest'ing W's
- Obj's 2 Form of Quest.'s
- Must Obj. 2 Form in Depo / Waived
- Ambiguous/ unintelligible
- Calls 4 narrative ans.
- Compound quest.
- Assumes fact not in evid.
- Already asked & ans.'ed in unequiv. way
- Can't lead on dir. unless
- Adverse W / other side
- Hostile W
- Handicapped W
- Expert W
- Forgetful W
- Background material
- Can lead on cross unless
- Own client
- Own client's camp
- Quest's W/In Scope of Preceding Phase
- Ask quest.'s on issues raised before & 2
impeach / rehab. W
- But judge could go outside scope by discretion
- Each W's Adds New Issue of Credibility
- Cast Doubt on W's Stmts Through
- Cross Then / &
- Extrinsic Evid. / Anything Other Than Cross
- Another W's testi.
- Methods of Impeachment
- W's Inability 2 Perceive, Remember / Rel.
- Can use both cross & extinsic
- Charact. Evid.: Specif. Acts
- FRE 608)b & C/L: Can cross in judge's discretion
but no extrinsic
- Can't cross / extrinsic 4 civil (CEC 787)
- Both ok in crim. b/c all relev. evid. incl'ed
in crim. unless (Art. 1, §28)d)
- Judge's discretion on prejud.
- Rape shield
- Rt of press
- Fed. ok both b/c gen. readiness 2 do evil
- FRE 609 4 inadm. cases
- Prior conviction is 10 yrs. old
- Convicted but later pardoned, annulled, rehab'ed
- Juvenile conviction
- Appeal pending, then adm. but say it's pending
- FRE 609)a)1: Felony convictions of crimes w/o
dishonesty, judge's discretion by factors
- Length of X conviction occurred
- Type of crime
- Similarities of crime
- How critical D's story is & if impeaching
would threaten D from testifying
- FRE 609)a)2: Felony / msdr conviction must B
incl'ed if inolve dishonest / false stmt of impeach
- Crimen falsi / crime of falsity, e.g. fraud
- Look @ facts of partic. crime 4 dishonesty
- Civil, then only felony convictions involving
moral turpitude used & judge has §352 discretion
- Both felony & msdr conviction ok if involve
- Judge has §352 2 excl.
- Msdr conviction is hearsay but impeaching atty
can prove underlying conduct
- Exceptions 2 using felony convictions §788
- Another jxn conviction & relieved of penalties
- Judge has implicit discretion by §352
- Pref. 2 cross 1st then use extrinsic
- Bias is never a collateral issue
- Prior Inconsistent Stmt
- C /L
- Cross about
- Then extrinsic if get denials
- Give fair chance 2 deny / explain & available
2 adversary /
- Convince judge that int. of justice served by
using extrinsic 1st
- Give W fair chance 2 remember, explain, / deny
- Make sure W available 4 adversary 2 examine /
- Convince justice served by using extrinsic
- Hearsay exception
- CA w/confrontation cl.
- Ok if D has present / prior chance 2 confront
- Then W's prior inconsistent stmt adm.'able
- Only if made under oath +
- Formal prcg
- Contradiction / Specif. Error
- What W said on stand is very likely not true
- If collateral matter, then can only use cross
- Can't Rehab Before W is Attacked
- Rehab. Must Meet The Attack
- Prior Consistent Stmt's
- Gen'ly not meet attack so can't use unless
- Overcome recently arisen bias
- Meet claim it was recently fabricated
- Hearsay exceptions
- None in C/L & only allow 4 rehab.
- CA & Fed. have exception 4if properly adm'ed
4 rehab. purposes
This material is copyrighted by the author. Use of the material
for profit is strictly prohibited without the written permission
from the author.
May 5, 1997
Ms. Haeji Hong
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