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1 Hypo. In an auto accident case, a passenger in the defendant s car testified for the defendant. Plaintiff calls another witness who testifies that a year earlier, he saw the defendant s passenger-witness stab someone. No conviction resulted and that fact has no relevance other than to impeach the passenger s credibility. The evidence is Admissible 2. Inadmissible 96% 4% Admissible Inadmissible 1

2 United States v. Lindstrom, p th Circuit,

3 Under the facts of United States v. Lindstrom, would Rule 608(b) prohibit putting in extrinsic evidence to impeach the prosecution witness by describing her attempt to get a murder contract? 1. Yes 2. No 45% 55% Yes No 3

4 Footnote 6, p. 537: We agree with the trial court that Federal Rule of Evidence 608 is not controlling. The credibility of a witness can always be attacked by showing that his capacity to observe, remember or narrate is impaired. Consequently, the witness capacity at the time of the event, as well as at the time of trial, are significant. Defects of this nature reflect on the mental capacity for truth-telling rather than the moral inducements for truth-telling, and hence Rule 608 does not apply. (Citing Weinstein s Evidence.) 4

5 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 1. The witness lied on the resume that the witness submitted to Acme as part of his employment application. May the witness be questioned about this 86% on crossexamination? 1. Yes 2. No 14% Yes No 5

6 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 1. The witness lied on the resume that the witness submitted to Acme as part of his employment application. Is extrinsic evidence admissible? 88% 1. Yes 2. No 13% Yes No 6

7 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 2. The witness is a drug addict. May the witness be questioned about this on cross examination? 1. Yes 2. No. 60% 40% Yes No. 7

8 Hidden slide Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 2. The witness is a drug addict. Is extrinsic evidence admissible? 1. Yes 2. No. 0% 0% Yes No. 8

9 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 3. Just before quitting his job at Acme, the witness sabotaged his computer by erasing its hard disk. May the witness be questioned about this on cross examination? 92% 1. Yes 2. No. 8% Yes No. 9

10 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 3. Just before quitting his job at Acme, the witness sabotaged his computer by erasing its hard disk. May extrinsic evidence be introduced? 72% 1. Yes 2. No. 28% Yes No. 10

11 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 4. The witness has secret plans to assassinate the Pope, the President, and the Dalai Lama. May the witness be questioned about this on cross 73% examination? 1. Yes 2. No. 7% 20% 3. It depends Yes No. It depends 11

12 Hypos, p. 538 To impeach the former employee, Acme plans to offer the following evidence: 4. The witness has secret plans to assassinate the Pope, the President, and the Dalai Lama. If the witness denies having these plans, may extrinsic evidence of the plans be admitted? 50% 1. Yes 2. No. 17% 33% 3. It depends Yes No. It depends 12

13 In the Harlow story, p. 541, the witness was impeached with questions that revealed that he believed he was the reincarnation of Jean Harlow. Question: Could the Dalai Lama be impeached with evidence that he believed he was the reincarnation of another man? 76% 1. Yes 2. No 24% Yes No 13

14 Coles v. Harsch, p. 542 Supreme Court of Oregon, 1929 In-Court-Witness (Mr. Thompson): proper Out-of-Court Declarant (Mr. Thompson): disgraceful 14

15 The Supreme Court of Oregon held that testimony by Mr. Coles that Mr. Thompson had called the conduct disgraceful was not admissible. Why? 1. Hearsay 2. No foundation for extrinsic evidence 3. Collateral impeachment. 69% 12% Hearsay No foundati... 19% Collateral... 15

16 What additional questions should have been asked in order to lay a proper foundation for extrinsic evidence? Reference: Oregon statute, p

17 The benefits of allowing a witness to explain or deny an inconsistent statement before calling another witness to describe the statement are: It s only fair to give the witness a chance to deny making the statement. The witness might be able to explain context -- for example, to explain situational pressures. If the declarant admits making the statement, time can be saved because it may not be necessary to call the witness who heard the statement. 17

18 You cross-examine a witness who testified that the light was red. You forget to ask him about a prior statement he made saying the light was green. You call your investigator to testify about the inconsistent statement. The other side objects. You say (truthfully), the witness still has a chance to explain or deny. He s sitting right there on the last row of the courtroom seats. Your argument has the best 96% chance of succeeding Under the Oregon statute on p Under Fed.R.Evid. 613(b). Under the O... 4% Under Fed.R... 18

19 In a modern-day Coles v. Harsh, you represent the husband. He brings to you an that Mr. Thompson, the witness, sent him by accident. Thompson apparently intended to send the gossipy to his brother, but by mistake he sent it to the entire Pudding River Discussion List. It says, The conduct of Mr. Harsh and Mrs. Coles at the Pudding River was totally disgraceful. 19

20 You re trying for a home run. You don t want just to impeach him with an inconsistent statement made out of court. You want to show his untrustworthiness as a witness by having him lie on the stand and then proving that he lied. You re pretty sure he doesn t know that you have the . 20

21 Here s how you d like the cross-examination to go: Q. Mr. Thompson, you testified that Mr. Harsh and Ms. Coles behaved properly at the Pudding River picnic? Ans. Yes. Q. Did you ever say their behavior was disgraceful? Ans. No. Q. Are you sure about that? Ans. Yes. Q. You never said it, you never wrote it? Ans. Absolutely not. Q. Is it possible that you said it or wrote it, but forgot that you did so? Ans. No. 21

22 Q. Are you as sure about that as you are about the rest of your testimony? Ans. Yes. Q. Mr. Thompson, would you look at this document that has been marked for identification as plaintiff s exhibit A. Do you recognize it? Ans. Yes. Q. What is it? Ans. It s an from me. You caught me! I was lying under oath in my other answers. Now nobody will believe any of my testimony. I can t stand it any longer! (Witness runs from the courtroom and is never seen again.) 22

23 Question. You d be more likely to be permitted to ask your questions that way, enticing the witness into denying he ever said it was disgraceful and then proving him to be a liar with his own written statement, if you were operating under - 100% 1. Fed. R. Evid. 613(a) 2. Ore L. 864, p % 0% 3. It doesn t matter. Fed. R. Evi... Ore L It doesn t... 23

24 Queen Caroline s Case (Painting by Sir George Hayter) 24

25 THE RULE IN QUEEN CAROLINE S CASE If the statements be in writing, they shall be shown to the witness before any question is put to him concerning them. (Oregon statute, p. 543.) This rule was sporadically followed and has been abolished in Federal Rules jurisdictions by FRE 613(a). 25

26 Comment: The coursebook deals with three possible objections to the admission of a witness s inconsistent statements: Hearsay No foundation for extrinsic evidence Collateral impeachment (hornbook excerpt, pp ) 26

27 HIDDEN SLIDE COVERED BY QUESTION EARLIER On substantive use of inconsistent statements: Compare Fed. R. Evid. 801(d)(1)(A) with CEC sec

28 Tome v. United States, p. 547 Supreme Court of the United States,

29 What was the holding of the Tome case? 29

30 What s the harm of admitting prior consistent statements? Why have any limits? 30

31 Hypo. The accused is charged with distribution of cocaine. The first prosecution witness testifies that he bought 2 kilos of cocaine from the defendant. On direct examination, the prosecutor asks the witness whether he gave the same testimony before the grand jury. Objection! 1. Admissible 2. Inadmissible 44% 56% Admissible Inadmissible 31

32 Same case. You are the prosecutor. On crossexamination by the defense, your witness admitted that he has drug charges pending against him and that he hopes to get leniency in return for cooperating with the government. You want to put a prior consistent statement made by your witness that incriminates the defendant by identifying him as a source of drugs. The prior consistent statement said, I bought 2 kilos of cocaine from Buzzy. 32

33 Assuming typical facts, the prosecution witness s out-ofcourt statement saying I bought 2 kilos of cocaine from Buzzy has the best chance of being admitted under Rule 801d1B if it was made in gossip to a friend before the witness was arrested 2. it was made during police interrogation after the witness s arrest 3. it was made in grand jury testimony after the witness s arrest 4. It doesn t matter it was made in gossip.. 65% it was made during po... 9% it was made in grand... 17% 9% It doesn t matter 33

34 The end (Optional questions follow) 34

35 Review question. A prior inconsistent statement can be admitted to impeach even if it does not fit the requirements of Rule 801(d)(1)(A). 80% 1. True 2. False 20% True False 35

36 Question. Depending on the circumstances, a prior consistent statement can be admissible even if it does not fit the requirements of 801(d)(1)(B). 1. True 2. False 0% 0% True False 36

37 Tome, p. 518: We intimate no view, however, considering the admissibility of any of A.T. s out-of-court statements under [the residual exception] or any other evidentiary principle.... Our holding is confined to the requirements for admission under Rule 801(d)(1)(B). 37

38 Hypo 5, p Suppose that a 90-year-old witness testified on direct about details of a five-year-old land transaction. On cross, the only question was how old are you? On redirect, the proponent wants to introduce a written memo made by the witness a few weeks after the land transaction. The memo describes the details of the transaction. What ruling? 1. Admissible 2. Inadmissible 50% 50% Admissible Inadmissible 38

39 The end 39

40 Lopez videotape called scheme to obtain custody in case couple divorces By: Ari Burack 02/23/12 4:00 AM SF Examiner Staff Writer SF Examiner file photo New twist: Sheriff Ross Mirkarimi s attorneys argue that statements made my his wife, Eliana Lopez, are inadmissible as hearsay because they were planned. Sheriff Ross Mirkarimi s attorneys argued Wednesday that his wife s statements to neighbors about alleged domestic violence are inadmissible in court, suggesting they may have been part of a calculated effort to obtain child custody if their marriage failed. Attorney Lidia Stiglich filed a 17-page motion Wednesday asserting that statements by Eliana Lopez to two neighbors are inadmissible as hearsay because such testimony must be spontaneous. The statements would be part of the legal groundwork for the introduction of a videotape of Lopez made by one of the neighbors. The videotape itself was the product of a reflective and deliberate decision to create evidence for purposes of a custody proceeding, attorney Lidia Stiglich wrote. 40

41 People v. Mirkarimi (pending). Special California rules of note: --CEC sec (character evidence exception for other acts of domestic violence) --CEC sec (hearsay exception for statements about threat or infliction of injury) --CEC sec (substantive use of prior statements of witnesses) 41

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