EVIDENCE Copyright July, State Bar of California

Transcription

1 EVIDENCE Copyright July, State Bar of California Dan was arrested and charged with possession of heroin with intent to sell. Dan allegedly sold a small bag of heroin to Peters, an undercover officer at Guy's Bar and Grill. In his opening statement, Dan's lawyer said the evidence would show that Dan was entrapped. The following incidents occurred at trial: 1. The prosecutor called Wolf, a patron at Guy's, who testified over defense objection that Dan told him the night before the alleged sale that Dan intended to "sell some baggies" to Peters the next night. 2. The prosecutor called Peters, who testified that she was working as an undercover officer and received information that Dan was selling heroin at Guy's. She testified she went to Guy's two nights before the date of the arrest. Over defense objections, Peters testified she talked to Bob, another bar patron, who told her he had bought marijuana from Dan at Guy's the night before. 3. Peters testified she found out that Dan used . Over defense objections, she testified that she had ed Dan a message to meet her at Guy's with a small bag of heroin on the night in question. Peters preserved a paper copy of her message, which, over defense objections, was introduced into evidence. 4. The defense called Dan as a witness. Dan testified that Peters had begged and pleaded with him to get heroin for her because she was suffering from withdrawal and needed a fix. On cross-examination, the prosecutor asked Dan, over defense objections: "Isn't it true that you were arrested by the police for selling marijuana in 1994?" Dan answered: "Yes, but they didn't have any evidence to make the charge stick." The prosecutor moved to strike Dan's answer. 5. The defense called Cal, Dan's employer, as a character witness. The defense laid a foundation showing that Cal had known Dan for ten years. Over the prosecutor's objection, Dan's lawyer asked Cal if he had an opinion on Dan's good moral character. Cal answered: "Yes, I and everyone else who have known Dan for many years know that he always tells the truth." The prosecutor moved to strike Cal's answer. Assume all appropriate objections were made. Was the objected-to evidence in items 1 through 4 properly admitted, and should the motion to strike in items 4 and 5 have been granted? Discuss.

2 EVIDENCE Copyright July, Scott F. Pearce, Esq. Outline I. Wolf s Testimony Re: Dan s statement 1. Admission - Nonhearsay 2. Declaration Against Interest 3. State of Mind / Present Intent C. Conclusion: Properly Admitted II. Officer Peters Testimony Re: Bob 1. Admission 2. Declaration Against Interest C. Objection: Improper Character Evidence 1. Specific Bad Acts 2. MIMIC Rule D. Conclusion: Error to admit. III. Peters Testimony and the Message A. Peters Testimony 2. Objection: Hearsay 3. Conclusion B. The Message 2. Authentication / Best Evidence 3. Hearsay 4. Conclusion C. Conclusion: Properly Admitted IV. Dan s Cross-Examination A. Isn t it true that you were arrested Objection #1: Leading 3. Objection #2: Improper Character Evidence 4. Conclusion: Inadmissible B. Yes, but they didn t have any evidence. 2. Objection: Non-Responsive 3. Conclusion: Strike both question and answer. C. Conclusion V. Cal s Opinion Testimony B. Objection: #1: Non-Responsive C. Objection #2: Improper Character Evidence D. Conclusion

3 EVIDENCE Copyright July, Scott F. Pearce, Esq. Answer I. Wolf s Testimony Re: Dan s statement Wolf, a prosecution witness, claims the defendant told Wolf that Dan would sell some baggies to Peters the next night. This testimony is relevant because it tends to prove that Dan is guilty of possession of heroin with intent to sell. Dan s alleged statement was made out of court, and now is offered at trial to prove the truth of the matter asserted. The statement will be inadmissible hearsay unless an exception or exclusion applies. 1. Admission Admissions by a party are deemed non-hearsay under the Federal Rules of Evidence. If Dan s statement is considered to be an admission, it will be allowed into evidence. 2. Declaration Against Interest Dan s statement is a declaration against his penal interest, since selling illegal drugs is a felony throughout the United States. This hearsay exception requires that the declarant be unavailable. In this case, Dan testified in his own defense. Accordingly, this exception to the hearsay rule will not apply to Dan s statement. 3. State of Mind / Present Intent Dan s statement also could be considered evidence of his state of mind or an indication of his present intent at the time he made the statement. These also are exceptions to the hearsay rule. C. Conclusion: Properly Admitted Wolf s testimony was properly admitted. Don s statement was either a non-hearsay admission or it falls under various exceptions to the hearsay rule. II. Officer Peters Testimony Re: Bob

4 Officer Peters is an undercover narcotics officer. Her testimony that Bob, another bar patron, told her that he bought marijuana from Dan at Guy s Bar and Grill the night before. This testimony is relevant because it tends to prove that the defendant is a drug dealer. Bob made his alleged statement to Officer Peters outside of court, and now the statement is being offered in court as evidence. It will be subject to the hearsay rule unless an appropriate exception or exclusion is available. This statement is very similar to Dan s statement discussed in Section I above. Bob is admitting buying and possessing, and, by implication, using marijuana. All of these acts are crimes. Bob s statement is an admission. The statement also is a declaration against penal interest. Bob s statement will not be kept out of court by the hearsay rule. C. Objection: Improper Character Evidence Dan s second objection to the testimony of Officer Peters is that it impermissibly attacks his character. 1. Specific Bad Acts The officer s testimony refers to a specific uncharged criminal act by Dan - marijuana dealing. This testimony is inadmissible if the only reason it is offered is to show that defendant s present conduct was in conformity with alleged past acts. 2. MIMIC Rule Specific bad acts evidence is allowed in to show motive, intent, knowledge, or for other valid purposes where the probative value outweighs the prejudicial impact. D. Conclusion This testimony should not have been admitted. The prejudice to Dan is great, but it appears this evidence proves little. If the prosecution believes Dan is a marijuana dealer it should charge him with the crime and prove his guilt in open court. III. Peters Testimony and the Message A. Peters Testimony Peters testified that she ed Dan a message to meet her at Guy s with a small bag of heroin on the night in question. This testimony is relevant because it lays the foundation for the later events that resulted in Dan s arrest. Ironically, although the defense objected, this testimony also might be relevant to Dan s entrapment defense.

5 2. Objection: Hearsay Peters is testifying from personal knowledge as to her own actions. Her testimony about the contents of the message she sent might draw a hearsay objection. As discussed below, the contents of the letter are offered because of their effect on the listener (reader), and not to prove the truth of the matter asserted. 3. Conclusion Officer Peters testimony about the message is admissible. B. The Message Officer Peters printed out a copy of the message she sent Dan. It is relevant because it tends to prove Dan is a drug dealer. 2. Authentication / Best Evidence The contents of the were transmitted electronically. No physical copy of the message passed between Peters and Dan. Still, Peters can authenticate the print-out, and under these circumstances an authenticated print-out is the best available evidence. 3. Hearsay The statements in the were made out of court. If they are being offered in court to prove the truth of the matters asserted, the hearsay rule will keep them out of evidence unless an exception or exclusion is found. In this case, the prosecution is not offering the to prove its contents, but instead to establish the effect the message had on Dan. This is outside the hearsay rule. 4. Conclusion The court properly admitted the message. C. Conclusion The court correctly admitted both the testimony and the message. IV. Dan s Cross-Examination A. Isn t it true that you were arrested...

6 The prosecution is confronting Dan on cross-examination about an alleged arrest for marijuana dealing six years ago. It is hard to see what logical relevance this question has to the instant case. Dan was not convicted of any crime. A six-year-old arrest appears vastly more prejudicial than probative. 2. Objection #1: Leading The prosecutor s question is leading, because it contains the answer. It is permissible to lead an adverse witness during cross-examination. 3. Objection #2: Improper Character Evidence Dan will argue that a six-year-old drug arrest is the worst sort of character evidence. He is not really being confronted with a specific act; he was arrested merely because the police suspected him of committing a crime. Felony convictions up to 10 years of age may be admitted at the court s discretion. A six-year-old arrest that did not even result in a prosecution is irrelevant to any triable issue of fact in this case. 4. Conclusion: Inadmissible The court should have sustained defense objections to the prosecutor s question. B. Yes, but they didn t have any evidence. The defendant admitted that he had been arrested and asserted that law enforcement had no evidence against him. The prosecutor s question was irrelevant. The defendant s answer has no probative impact on any triable issue of fact in the instant case. The prosecutor wishes the court to strike the defendant s answer. Because the question was irrelevant, both the question and the answer will be stricken. 2. Objection: Non-Responsive The fist word of Dan s answer, yes, is responsive to the prosecutor s question. The rest of the answer goes beyond the scope of the question, so it will be considered non-responsive. C. Conclusion The court erred when it allowed the question. It should have stricken both the question and the answer. V. Cal s Opinion Testimony Cal is Dan s employer. The defense has called Cal and asked Cal if he had an opinion on Dan s

7 good moral character. Because Dan is facing criminal charges, this question is relevant. A criminal defendant is allowed to put on character witnesses when his character is called into question. Drug possession for sale charges call into question Dan s character. B. Objection: #1: Non-Responsive The prosecutions s first objection is that, aside from the first word of Cal s answer, the rest goes beyond the scope of the question presented. The prosecution has asked that the question be stricken; the yes will come in and the rest of the answer excluded. C. Objection #2: Improper Character Evidence The prosecution objects the the defense question, not just the answer. It has already been noted that a criminal defendant may present character witnesses when his character has been called into question. It should be noted further that Cal will be allowed to present his favorable opinion to the court. Cal has known Dan for 10 years from a position of authority - as Dan s employer. While Cal will be allowed to express his favorable opinion, it is unlikely that he will be allowed to testify that he always tells the truth. This probably will be deemed too specific, and thus impermissible. Cal could express his opinion about Dan s character and testify to Dan s reputation for truthfulness. D. Conclusion The court should have stricken the non-responsive part of Cal s answer and allowed the attorney to ask additional questions about Cal s opinion and view of Dan s reputation.