DD is on trial for murder of VV in 2005.
The common law rules of evidence apply.
The common law rules of evidence apply.
At the trial W-10 testifies, "In the community in which he resides DD has the reputation of being an honest person." The prosecutor then asks W-10 if he saw DD kill John Jones on May 13, 2004.
How should the court rule on DD's objection to this evidence?
W-8 testifies to DD's reputation for non-violence.
On cross-examination AUSA asks about W-8's knowledge of other violent acts by DD.
DD objects, citing Michelson.
The AUSA replies with a citation to 405(a), 2d sentence, noting that this sentence authorizes inquiry into relevant specific instances.
"On cross-examination, inquiry is allowable into relevant specific instances of conduct."
She also points to the Advisory Committee's Note, which asserts that reputation is a covert form of opinion.
"It seems likely that the persistence of reputation evidence is due to its largely being opinion in disguise."
Who wins?
At trial W-9 testifies for DD: In my opinion DD is a non-violent person
On cross-examination the prosecutor asks W-9 if he saw DD attack Sammy Smith with a knife on June 5, 2003.
DD: objection
Ruling?
12
DD is on trial for murder in 2005. DD invokes his privilege against self-incrimination. W-8 testifies to his opinion of DD's non-violent character. The prosecutor then asks W-8 if he saw DD steal $15,000 from her employer on May 13, 2000.
Explain why the trial court sustains DD's objection to this question. Give
all the possible reasons for the ruling.
DD calls W-11. He wants W-11 to give his opinion that DD is a non-violent
person. However, instead of asking directly for that opinion, he first asks
W-8C to recount his observations of specific instances of DD's non-violent
behavior.
DD is on trial for murder. The state puts on its case and rests.
DD then offers to have W-12 testify that Valiant Victim, the alleged victim
of DD's alleged murder, had the reputation of being a violent person.
Explain why the prosecutor's objection is overruled.
After the prosecutor's objection [Problem 14] is overruled, the prosecutor
offers to have W-13 testify that DD's reputation in the community in which
(s)he resides is that of a violent person.
How should the court rule on DD's objection?
Della D is on trial for murder. The government puts on its case and rests. Della D then testifies that she killed Valiant Victim in self-defense when Valiant launched an unprovoked and deadly attack on her.
The government then offers to have W-14 testify that Valiant Victim's reputation in the community in which he resided was that of a peaceable and non-violent person.
How should the court rule on DD's objection to this question and why?
Warning: This is a tricky problem. Work out your answer with care.
DD's defense will be that she killed VV in self-defense when VV launched an unprovoked and deadly attack on her.
But the government belatedly discovers that VV did not die. The charge against DD is reduced from murder to aggravated assault.
The government puts on its case and rests.
DD testifies that VV began the fracas and that she hit Valiant V with a knife in self-defense.
The government offers to have W-14 testify that Valiant Victim's reputation in the community in which he resides is that of a peaceable and non-violent person.
The trial court sustains the defendant's objection.
What is the explanation for this OUTRAGEOUS (?) ruling?!?!
The government puts on its case and rests.
This time DD testifies:
I mistakenly but reasonably believed that Valiant V was trying to kill me. That's why I stabbed Valiant V in the heart with a machete.
As before [in Problem 17], the government offers to have W-14 testify that Valiant Victim's reputation in the community in which he resided was that of a peaceable and non-violent person.
As before, Della D objects on the ground of the character evidence rule and, as before, Della D correctly points out that 404(a)(2) does not apply because (i) this is not a homicide case and (ii) the accused, Della D, has not introduced any character evidence against Valiant V.
The trial court nevertheless overrules DD's objection.
What is the explanation for this OUTRAGEOUS (?) ruling?!?!
In her answer Della D denies the battery and, in the alternative, alleges provocation and self-defense: Della avers that Valiant actually attacked her and that she hit Valiant either in retaliation for the attack and to ward off a further attack by Valiant.
At the trial Della D offers to have W-3 to testify to Della D's reputation
for non-violence and W-9 to testify to Valiant V's reputation for violence.
The trial court sustains Valiant's objections to these two offers of evidence.
Assume that the trial court's rulings are correct.
Explain the trial court's rulings.
After the astonishing discovery that Valiant Victim is alive, Valiant Victim turns around and dies. Valiant Victim's plans for bringing a civil action for aggravated battery against DD are therefore aborted. However, VV's spouse brings a civil action for wrongful death against Della D. At the trial Della D testifies that Valiant V initiated the fracas that led to Valiant V's death.
Plaintiff's counsel cross-examines Della D after DD testifies that Valiant V was the aggressor. During cross-examination plaintiff's counsel asks DD if she, Della D, was convicted five years ago for the murder of John Jones.
How should the court rule on DD's objection?
Consider a revised version of the wrongful death action against Della D.
As before, the complaint in this civil action avers that Della D negligently, recklessly, or deliberately caused VV's death in 2005.
As before, DD testifies that VV began the fracas that led to Valiant V's death in 2005.
But in the new scenario Della D also testifies that she, Della D, accidentally killed Valiant in the course of trying to defend herself.
Counsel for plaintiff cross-examines DD and asks Della D if it isn't true that on January 1, 2002, some three years before Valiant V's death, Della D murdered Harry Husband, her spouse,
Della D, of course, objects to this question.
Della D argues that the plaintiff is trying show the prior murder in order to show her propensity toward murder - her murderous character - for the purpose of showing that she acted in accordance with that propensity in 2005 when she killed Valiant - and if the character evidence rule prohibits anything, it prohibits this. She refers the trial judge to Zackowitz and to FRE 404(b), 1st sentence.
Counsel for plaintiff replies that the question is permissible under the first sentence of FRE 608(b).
Who wins this argument?
Suppose the trial court rules that the question is improper impeachment. (Perhaps because the trial judge believes the question is unduly prejudicial if asked for purpose of impeachment). Question: Is the prior murder by Della D admissible for some purpose other than impeachment?
Hint: We are working with a scenario in which DD claims that she killed VV accidentally, inadvertently.Further hint: Consider the second sentence of Rule 404(b).
Consider this theory:
Della D has claimed that the killing was accidental or not deliberate. The prior murders are admissible to negative her claim of accident or lack of intent. There is no violation of the character evidence rule because the prior murders are offered to show, not an act of DD, but something else, his state of mind or intent. See FRE 404(b), 2d sentence.What do you think of this argument?
See "The American Character Evidence Prohibition: What Is Not Prohibited Is (Generally) Permitted."
The Michigan Supreme Court (apparently borrowing from Professor Edward Imwinkelried) provides a helpful explanation of the limited scope of the character evidence rule. In People v. Vandervliet, 444 Mich. 52; 508 N.W.2d 114, at --- n. 12 (1993), the court, speaking of a person's acts that are revelatory of that person's character or disposition, said:
"The forbidden theory of relevance is diagrammed as follows:
..
Rule 404(b) limits the use of logically relevant evidence only when both steps of the process are violated. Therefore, if the proffered other acts evidence is logically relevant, and does not involve the intermediate inference of character, Rule 404(b) is not implicated. Engelman, supra at 216. ... The question is not whether the evidence falls within an exception to a supposed rule of exclusion, but rather whether the "evidence [is] in any way relevant to a fact in issue" other than by showing mere propensity, Stone, The rule of exclusion of similar fact evidence: America, 51 Harv L R 988, 1004 (1938)."
The Michigan Supreme Court illustrated the same general point -- the point about the limited scope of the character evidence prohibition -- yet again in another part of its opinion in People v. Vandervliet, 444 Mich. 52; 508 N.W.2d 114 (1993) (footnotes omitted):
Thus, the Court of Appeals reference to 'the general exclusion of similar acts evidence' is mistaken. There is no policy of general exclusion relating to other acts evidence. There is no rule limiting admissibility to the specific exceptions set forth in Rule 404(b). Nor is there a rule requiring exclusion of other misconduct when the defendant interposes a general denial. Relevant other acts evidence does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith.
If you wish to do so, consider also http://tillers.net/course-advance/notesoncharacterevidence.html
Vila avers that her employment contract with the CIA was somewhat unusual: it required just cause, good cause, for the termination of her employment with the CIA. She further avers that the CIA discharged her even though it did not have good cause to do so.
The CIA defends on the merits. It avers that it had good cause to terminate Vila's employment at the CIA.
At the trial the CIA offers to show that
Vila once attacked a 10 year-old boy because he thought the boy was a KGB operative; and
Vila once attacked a 96-year old invalid for the same reason.
Vila objects to this evidence on the ground that
it is inadmissible character evidence;
when character is admissible, proof of character must take the form of reputation evidence (or, under the FRE, by opinion); and
evidence of specific instances of conduct to show character is prohibited.
The trial court overrules Vila's objections.
What is the explanation for the trial court's ruling?
25
Now please analyze Barnes
v. City of New York (2002)*: Assess all of the reasons given
by the Appellate Division for the admissibility of evidence about the plaintiff's
membership in a "group" [gang] that "espouse[d] a vicious ideological hatred
of the police and propound[ed] to its members a protocol to shoot and kill
police officers rather than submit to arrest."