Character Evidence

1. Character Evidence Focus on Civil Cases

2. Character: Squeamishness around people with AIDS Tendency: Treat people with AIDS poorly Conclude: More likely that he discriminated against this plaintiff with AIDS

3. Rule 404(a) Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . .

4. 404(b) Other Acts

5. 404(b) Other Acts Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

6. Other Acts to Show Intent • Defendant denies intent to discriminate against people with AIDS • Intent is hard to prove directly • Discomfort around/distaste for people with AIDS is circumstantial evidence of intent to discriminate

7. 404(b) Other Acts Character as an Element 412 Rape Shield 406 Habit 415 Sexual Assault and Child Molestation

8. YouTube: MerrittEvidence Character Evidence in Civil Cases

9. Rule 408: Settlements and Offers to Compromise • Neither party may offer protected statements • But the rule protects only “compromise negotiations” • The rule allows introduction of statements to show bias • Prosecutor may use statements from negotiations with public agency

10. Rule 411: Liability Insurance • Bars evidence of presence/absence of liability insurance to prove wrongful behavior • Applies only to liability insurance • Admissible for other purposes (e.g., to show bias)

11. 803(3) State of Mind • Admit: “the declarant’s then existing state of mind, emotion, sensation, or physical condition” • But not: “a statement of memory or belief to prove the fact remembered or believed” “I’m afraid sometimes, because my husband acts like he will kill me.”

12. Trademark Infringement A customer told me, “I remember your Leelanau wine. I tried it at the Michigan State Fair.” Leelanau sold at the Fair Customer believed the wine was Leelanau

13. Plans • Kate: “Post brunch schedule involves outlining and hitting the gym” • Mark: “3 more hours until we are on a plane on our way to Washington DC” • Chris: “Anyone want to join me in June at Panic at the Disco?”

14. Plans With Other People • Kate: “Post brunch schedule involves outlining and hitting the gym with John” • Mark: “3 more hours until we are on a plane on our way to Washington DC to meet Susan” • Chris: “Anyone want to join me and Arthur in June at Panic at the Disco?”

15. 803(4) Medical Diagnosis • “Statements made for purposes of medical diagnosis or treatment” • “insofar as reasonably pertinent to diagnosis or treatment”

16. Is It Pertinent? • “My husband Melvin hit me with a bottle” • Attacker’s status is relevant to psychological treatment • Attacker’s status is relevant if the disease is “battered spouse”

17. Restyled Rules • 704(a) . . . testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. • NEW: An opinion is not objectionable just because it embraces an ultimate issue.

18. Rule 804(b)(3) • Hearsay exception for statements against penal interest • Corroboration has always been required for statements used to exculpate accused in criminal case • Corroboration now required when offered by accused or prosecution in criminal cases

19. Confrontation Clause and Hearsay • Applies only to statements offered against criminal defendant • New approach: Crawford v. Washington, 541 U.S. 36 (2004) • If a statement is “testimonial,” D must have a chance to cross-examine • If not “testimonial,” no 6th amendment concern

20. What Is Testimonial? • Statements like ones that a witness would make in the courtroom • Directed at proving facts in criminal prosecution

21. What Is Testimonial? • Paradigm: Sworn statement to police at station house • NOT: Excited utterance to friend

22. What Is Testimonial? • Davis: Initial statement to 911 operator, during crime, was not testimonial • Hammon: Sworn affidavit for police, made immediately after crime but at home, was testimonial • Melendez-Diaz: Lab technician’s affidavit was testimonial

23. What Is Testimonial? 2011 • Michigan v. Bryant (decided Feb. 28): Statements by dying gunshot victim to police, shortly after crime, were not testimonial • Some discomfort with Crawford • May narrow “testimonial” category • But fits with Davis

24. Davis and Bryant: Common Factors • Statement by excited victim • During/immediately after crime • As part of law enforcement’s initial encounter with victim • Extent of danger unclear • Informal circumstances • No express reference to prosecutorial use

25. What Is Testimonial? 2011 • Bullcoming v. New Mexico (argued Mar. 2): Is lab report admissible if another technician testifies? • Probably not. Person with knowledge must testify • Questions about chain of custody • Questions about expert testimony

26. New Media Evidence

27. Why Are Social Media Sources So Effective? Easy to admit an opponent’s statement Users lack discretion Electronic records persist Catching in the act is believing

28. <p><i>9:48pm</i>. I’m a little intoxicated, not gonna lie. So what if it’s not even 10pm and it’s a Tuesday night? What? The Kirkland facebook is open on my computer desktop and some of these people have pretty horrendous facebook pics. I almost want to put some of these faces next to pictures of farm animals and have people vote on which is more attractive.

29. YouTube: MerrittEvidence Justin Lands a Job

30. Evidentiary Issues Collecting Evidence Defensive Maneuvers Authentication Hearsay Juror Impeachment

31. Collecting Evidence • Public info is fair game • Even when posted by an opponent represented by counsel • No deception allowed in friending • Honest, but limited, disclosure in friending • NYC says ok (Ethics Op. 2010-2) • Philadelphia says no (Ethics Op. 2009-2)

32. Defensive Maneuvers • Education and preparation are key • Spoliation: General ESI principles guide the way

33. Authentication: Two Stages Content Tangible Download

34. Authentication: Two Stages Authenticate the content Authenticate the print-out, screen-shot, or other representation Chain-of-custody for the communication

35. Authentication: Standards Rule 901: “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 104(b): Evidence “sufficient to support a finding” Reasonable jury Preponderance of the evidence

37. Authenticating Content • Stipulation • Testimony/personal knowledge • Distinctive characteristics

38. Authenticating Exhibit • Stipulation • Affidavit/personal knowledge • Testimony/ personal knowledge

39. Hearsay in Social Media

40. Social Media and Jurors • Lawyers check potential jurors online • Jurors communicate before deliberation • Jurors communicate with outsiders about the case • Jurors research information

41. www.merrittevidence.com • Download slides • View sample chapter of Learning Evidence: From the Federal Rules to the Courtroom (West 2009) • Or email merritt.52@osu.edu