EVIDENCE ESSAY SERIES ESSAY QUESTION #6 MODEL ANSWER
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 objections 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 that he had bought marijuana from Dan at Guy's the night before.
3. Peters testified she found out that Dan used e-mail. Over defense objections, she testified that she had e-mailed 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 e-mail 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.
MODEL ANSWER
1. Wolf's statement that Dan told him the night before the alleged sale that Dan intended to "sell some baggies" to Peters the next night.
RELEVANCE.
The question for logical relevance is, does evidence have a tendency, even a scintilla, to establish that a material, consequential fact is more or less likely to be true? Relevant evidence relates to the time, event or person in the proceeding, and the proposition to be proved. Relevant evidence must have something to do with the outcome of the case under controlling law. All relevant evidence is admissible, unless it is excluded based upon judicial discretion where the probative value of the evidence is outweighed by the danger of prejudice to the jury, or due to public policy considerations.
The testimony of Wolf about Dan's statement is relevant to indicate that Dan had the intent to go to Guy's bar to sell heroin.
COMPETENCE. All witnesses are considered competent, at first glance. However, a foundation should be laid through preliminary questioning, which helps to establish that a witness was in a position to observe the events in question, and therefore may credibly testify about the events. Witnesses are not inherently incompetent merely due to infancy, insanity, lack of religious belief, conviction of a crime, or because of a financial interest in the outcome of a proceeding. A witness must have been in a position to observe the relevant evidence personally, and at the time that the evidence took place.
Wolf had a personal conversation with Dan.
HEARSAY.
Hearsay is an out of court oral or written assertion, or non-verbal conduct of a person if intended by the declarant as an assertion, other than the statement made by the witness while testifying, that is offered into evidence in order to prove the truth of the matter asserted by the declarant. The purpose of the hearsay rule is to preserve the right of cross-examination, by allowing only relevant evidence that a witness has personal knowledge about, to be introduced.
Dan's statement to Wolf was made the night before the crime, and it is an out-of-court statement.
Admission of Party Opponent / Not Hearsay.
The admission need not have been against interest when it was made, because it is only considered an admission of a party opponent at the time of the trial.
Hearsay Exception / Present State of Mind.
The event in question took place the next evening, so this exception would probably not be applicable.
Statement Against Interest.
Probably not applicable.
CONCLUSION.
Overall, the evidence was properly admitted as an admission, or alternatively, a statement concerning present state of mind, and thus is not hearsay. Since the statement is relevant, it should be admitted.
2. Peter's testimony that Bob told him he had bought marijuana from Dan the night before at Guy's.
RELEVANCE.
This statement would contradict an entrapment defense, and therefore it is relevant.
CHARACTER EVIDENCE.
Character evidence is generally not admissible to show that a party or a defendant acted in conformity with their character.
Specific Prior Bad Acts.
Evidence that a criminal defendant committed past crimes, is admissible to prove motive, intent, mistake, identity, or a common scheme, and a conviction for a past crime is generally not required. Intent relates to the state of mind about guilty knowledge or lack of good faith, identity is used to show a unique manner in which a crime was committed such as a signature crime, and a common plan or scheme is used to show that other crimes were committed as part of the current crime.
Dan may have intended to sell drugs, and therefore he might not have been entrapped.
FRE 403 BALANCING. But must also consider probative value versus prejudice.
HEARSAY.
Statement Against Interest / Hearsay Exception.
The drug purchase statement may have been against interest, but Bob need be shown to be unavailable.
CONCLUSION.
There are good grounds to exclude the evidence, either as character evidence, as too prejudicial, or not falling within any hearsay exception.
3. Peter's statement regarding the e-mail to Dan.
RELEVANCE.
Relevant to show Dan had the heroin, with intent to sell it.
AUTHENTICATION. All non-testimonial evidence must be authenticated in order to be admitted, unless the evidence is self-authenticating. Real evidence consists of physical objects related to the issues in the case, and demonstrative evidence relates to illustrative evidence such as maps, charts, diagrams and photos, whose relevance depends on the ability of the evidence to describe the facts of the case. Evidence of authentication exists where evidence is presented that is sufficient to support a finding that the matter is what its proponent claims it to be.
Peter wrote the e.mail.
BEST EVIDENCE RULE.
The best evidence rule is used when a party endeavors to prove the contents of writings, recordings, drawings or photographs, but it does not apply to mere proof of the existence of documentation. Often, the best evidence rule is applicable when it is necessary to ascertain the precise wording of a document. Under the best evidence rule, an original is the writing or recording itself, or a facsimile meant to have the same effect by the person that executed the original, and the original must be produced. However, a duplicate is admissible to the same extent as an original if the party has a satisfactory explanation for the missing original, unless there is a genuine question raised as to the authenticity of the original, or if in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Here, a paper copy of the e.mail is unlikely to have errors, and it should be admitted.
HEARSAY.
The e.mail is an out of court statement that was prepared by Peters.
Offered for Effect on Hearer / Not Hearsay. Statements offered to show their effect on the hearer or reader are not hearsay, and include statements to indicate why the hearer or the reader acted or did not act in a specific way, statements that show motive or good faith, or statements that show notice was given to hearer or the reader.
Possible that the statement was offered to show the effect on Dan, and not for the truth asserted.
CONCLUSION.
The evidence was properly admitted as she was trying to show its effect on Dan.
4. Prosecutor's question to Dan on cross-examination regarding prior arrest for selling marijuana.
LEADING QUESTIONS.
Questions suggesting the answer that is desired, generally are improper on direct examination, because they are leading questions that may influence a susceptible witness to testify in a manner in which they would not normally testify. Leading questions are often phrased so as to be capable of answering in a 'yes' or 'no' fashion, and tend to suggest the answer desired by the lawyer. However, leading question are permissible on cross-examination unless the witness is the attorney's client or someone close to the client, on direct examination when the witness is hostile, on direct examination to cover preliminary matters, on direct examination when a witness needs some aid to respond due to lack of memory, or on direct examination due to youth.
Leading questions are proper on cross-examination.
RELEVANCE.
The evidence may tend to show that Dan had a propensity to sell heroin.
If Dan was arrested for selling marijuana in the past, it might make it more likely that he had a propensity to sell heroin this time. Propensity defeats an entrapment defense.
CHARACTER EVIDENCE.
If this is being used to show that Dan has a propensity to sell drugs, then it is inadmissible.
FRE 403, PROBATIVE VERSUS PREJUDICAL EFFECT. Evidence which is relevant may be excluded if its probative value is substantially outweighed by the danger of prejudice to the jury which will result if the evidence is admitted. While most evidence during a proceeding will be ‘prejudicial’ or self-serving to one side or another, in that it will make it harder to prove or defend their claim, prejudice in the context of FRE 403 does not mean unfavorable, rather, it includes the dangers of unfair prejudice, confusion of issues, undue delay, misleading the jury, needless presentation of cumulative evidence, and waste of time. Any relevant evidence may be excluded. This is a judgment of the trial judge who has broad discretion.
403 BALANCING.
Since this was a mere arrest, not a conviction, prejudice could substantially outweigh prejudicial value.
IMPEACHMENT.
PRIOR BAD ACTS. Specific bad acts that are probative of truthfulness such as deceit or lies, are admissible if the conduct reflects untruthful character, the probative value outweighs the unfair prejudice, a good faith basis for inquiry exists, and the witness is asked if they committed an act, but it is proper to ask about arrests or indictments. An attorney may ask a prosecution's witnesses about their arrests or indictments, if they are in jail.
Since Dan is testifying, the inquiry on cross-examination regarding a prior specific bad act might be fine. However, the inquiry must be about a bad act that involves dishonesty or deceit. Here, the inquiry regarding a prior marijuana sale does not meet this requirement. Had the 1994 incident resulted in a felony conviction, the judge would still not have discretion to let it in, because it took place over ten years ago.
CONCLUSION.
Here, the evidence should not have been allowed.
5. Dan's Employer's Testimony.
NON-RESPONSIVE. A witness must specifically respond to a question, and not ramble on about matters that they were not asked about.All they had asked him was whether he had been arrested. That only requires a yes / no reply. Dan went further. The portion beyond yes should be stricken.
RELEVANCE. To try to show that Dan as a good moral person would be less likely to sell heroin unless entrapped.
CHARACTER EVIDENCE.
Under the Mercy Rule, a criminal defendant can introduce evidence of his character with respect to the trait in question. The first question is whether good moral character is the trait in question for drug dealing. Arguably, it is. The evidence can be in the form of the witness' opinion or the witness can testify as to the defendant's reputation in the community. Here, Dan was asked to give an opinion, so the form was fine, even if his answer went too far. The employer was qualified as a witness because he knew Dan for ten years. Thus, he could render an opinion on this subject.
Habit
When a practice has become a habit, that habit may be used to show that a person acted in conformity with the habit, which is a repeated response to a particular set of circumstances over time, with a large amount of repeated responses, and little independent thought. Habit evidence is not conclusive, and may be rebutted though evidence showing specific instances of deviation from the habit.
The defense will argue that the fact that Dan always tells the truth is habit evidence. However, this is far too general. Habit evidence requires specificity.
IMPEACHMENT.
Impeachment is the process whereby a party attacks the credibility of a witness. Any witness may have their credibility attacked, and the party that called the witness may also seek to attack the credibility of that witness. Impeachment occurs when an attorney endeavors to present reasons why a witness should not be believed. Any party may impeach the credibility of any witness through cross-examination or extrinsic evidence such as the testimony of other witnesses or documents. A witness may be impeached through specific contradiction, bias or interest, sensory or mental defects, prior inconsistent statements, or character for untruthfulness. Prior bad acts requires cross-examination.