Procedure for Examination Review. I will be available to discuss examination results
during the Spring semester, after Thursday, February 10, 2005. Exams will be available for pickup from me at my
office. The feedback memo will be available online at my website.
Review
Policy. Examination review is a good way to learn from your
mistakes, and from your successes. I encourage you to review my feedback memo
and your exam. I will be happy to sit down and discuss substantive matters with
each student. I will first tell each of you what you did right. I will also
gladly suggest ways to improve your exam-taking abilities.
No
Grade Changes. I want to make one
thing perfectly clear: I have never changed a final grade because I changed an
exam grade. Barring mathematical errors, your grade is not going to be
changed. Grading is a time-consuming
and difficult process. The only fair way to do it is to grade in the context of
each class. I look for a fair overall grade distribution and follow the rank of
each student within the class in awarding the final grade.
General
Comments. The True/False and
Hearsay/Nonhearsay sections predictably yielded very good scores. The average
for the ten True/False was 8.27 correct answers; the average for
Hearsay/Nonhearsay was 4.93 correct and 4.83 correct for the Hearsay-but-admit
section. The essay was, of course, harder; the highest score was 164, and the
average was 79.53. I grade on a 600 point scale.
General Instructions FOR
Parts I and II
Select
the best answer to the question presented. In this section, do not look for “perfect” answers, just the most
correct one among the two alternatives available to you, in light of the
question or statement presented.
No explanations are required or
allowed. Your answer will either be correct or incorrect, there will be no
partial credit for incorrect answers. Circle the appropriate word or letter
that you select as your response.
Do
not assume any facts not given to you.
While you are expected to draw reasonable conclusions from the facts given, you
should not assume facts. In this section of the exam, “missing facts” suggest
three possibilities: (1) you need to read the question again, i.e., “it’s in
there somewhere,” (2) the fact is not necessary to the resolution of the
question, or (3) I made a mistake and you may need to alert me to it (if you
are convinced that this is what is going on, do not be afraid to ask the
question of the proctors).
Do
not look for issues that are not relevant to answering the question. The question asked determines the issues raised,
read it carefully and answer the question I asked, with the best possible
response among the alternatives given.
Applicable
Rules. Assume that the applicable
rules of evidence are the Federal Rules of Evidence, taken together with all
the accompanying doctrines and caselaw as we discussed them in class.
Part I: True or False (20%)
In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.
1.
In a criminal trial for
possession with intent to distribute cocaine, a DEA agent identified a brick of
cocaine offered by the prosecution as evidence seized from the only defendant’s
boat. During the agent’s testimony, some pieces of cocaine detached from the
brick and covered the witness stand (the brick had lost part of its plastic
seal while in transit, and some bits became lose). While testifying for the
government, the next witness, Bruce Wadkins, gathered up some of the cocaine
pieces and swallowed them, in view of the jury and the presiding judge. If
defense counsel raises an objection, this witness must be ruled to be
unqualified to testify and his entire testimony should be stricken from the
record.
True False
Answer: False. The
testifying-while-stoned scenario. A combination of the Van Meerbeke case mentioned at note 3 at page 530 of the casebook,
with my own observation of a trial that is described in the website and which I
specifically addressed in class. There is no automatic disqualification here,
so the word “must” is not accurate.
2.
Counsel for the
plaintiff in a contract case calls the only defendant, John Smith, to the
witness stand during the plaintiff’s case-in-chief, for direct examination. If
counsel is in fact asking leading questions, an objection by defense counsel
that plaintiff’s counsel is leading the witness should be sustained.
True False
Answer: False. The
applicable Rule is 611(c)[3] Plaintiff has called the defendant, who is “an
adverse party” who may be led by plaintiff’s counsel even on direct.
3.
In a civil case, Stuart
Smith will be an important witness for the defendant. Plaintiff proffered
evidence that on two occasions Mr. Smith and another man, Peter Johnson, an
acquaintance of plaintiff’s counsel, had observed bus accidents occur while
standing on a side street near the busy intersection of Olive Way and Broadway,
whereupon they had jumped into the buses involved. They then filed claims for
injuries resulting from the bus accident against the Seattle Metropolitan
Transit Authority. After an evidentiary hearing, the court finds that the
defendant has a good faith factual basis to support these contentions. The
court may allow the defense to ask Smith about those acts, as a form of
impeachment.
True False
Answer: True. I changed the
facts to have a Seattle flair, but it is essentially the same question as last
year, the filing of fraudulent claims as non-conviction acts of dishonesty.
This is the strongest scenario from Murphy vs. Bonnano, p. 602, and with an
actual finding that the plaintiff
has a good faith basis to ask the questions. Therefore, it is proper
non-conviction, specific act involving dishonesty impeachment, under FRE
608(b). The fact that no recovery is noted is irrelevant.
4.
Generally, evidence of
character or trait of character is admissible to prove that the person to whom
the evidence refers acted in conformity therewith on a particular occasion.
True False
Answer: False. That is what
it is generally NOT admissible for under FRE 404(a). Even without the “only”
this statement is incorrect.
5.
In a criminal case
alleging sexual misconduct, the defendant has evidence of the alleged victim’s
sexual behavior that may be admissible under Rule 412(b)(1). Thirty days before
the trial, the defense files a motion under seal seeking the court’s permission
to use that evidence, and serves the motion on the government but not on the
alleged victim’s counsel (who has already filed a notice of appearance and has
been representing her for some time in the proceedings). The government moves
to exclude the evidence on the ground that defendant failed to comply with the
notice requirements of the rule. The court has the discretion to exclude the
evidence on that basis.
True False
Answer: True. FRE
412(c)(2)[B]. As I wrote in the feedback memo for the practical project, the
courts are very snitty about the technical requirements of Rule 412 and the
court has the discretion to exclude the evidence if the confidentiality rule is
violated, as in last year’s exam, OR if the notice to the alleged victim
requirement is violated (as I also emphasized in the memo). Note the word
“must” applies to the parties and their filings, not to the court (as I suspect
some of you thought). The court has the discretion to exclude for violation of
the rule, it is not required to do so.
6.
Jonathan Smith is being
criminally prosecuted for violation of 18 U.S.C. sec. 871, providing for fine
or imprisonment for “whoever knowingly and willfully deposits for conveyance in
the mail ... any threat to take the life of, to kidnap, or to inflict bodily
harm upon the President of the United States.” Smith is charged with sending a
letter threatening the life of President George W. Bush from his prison cell at
the federal penitentiary in Terre Haute, Indiana. Smith wishes to introduce the
testimony of a qualified psychologist who will testify that Smith sent the
letter because he was acting under a syndrome known as “‘institutionalization,’
which made him fear freedom and engage in conduct designed to prevent his
release from prison.” The psychologist would then testify that Smith lacked the
subjective intent to injure the President. The defense concedes that the
psychologist cannot provide any testimony regarding the objective
interpretation of Smith’s actions in sending the letter. The court rules that
the statute does not require proof of subjective intent, but rather must be
applied using a purely objective standard. The court should therefore exclude
the psychologist’s testimony because it is irrelevant.
True False
Answer: True. FRE 402[B]
provides that evidence which is not relevant is not admissible True. Since
subjective intent is not an issue, and the psychologist cannot testify about
the objective interpretation of the evidence, then his testimony is irrelevant
and should be excluded. US v.
Fuller, 387 F.3rd 643 (7th Cir. 2004).
Clearly
the most difficult question in the exam. The expert is only testifying about
intent, and can only state that the defendant lacked the subjective intent to
commit the crime, which is not the applicable substantive standard. Since the
defense conceded that the expert could not testify about objective intent (and
frankly even if they had not) the testimony is not relevant because lack of
subjective intent is not an issue.
7.
In an appeal based on an
evidentiary question, the appellant establishes that his counsel made a timely
and specific objection to the admission of certain evidence at trial. The
appellate court also finds that the trial court erred in admitting the evidence
and that the admission violated a substantial right of the party and that the
error cannot be classified as harmless. The appellate court has the discretion
to reverse the lower court decision under these circumstances.
True False
Answer: True. In addition
to the finding of error in the admission, the court of appeals has found that
“a substantial right of the party is affected” by the error, and that the error
is not harmless (when taking into account the overall evidentiary picture).
Therefore, reversal is appropriate and the appellate court has the discretion
to order it. FRE 103(a).
8.
The law of evidence must
always assume that the jury will follow the court’s instructions where those
instructions are clear.
True False
Answer: False. The flip
side of last year’s question. Brutton, at page 227. Finally, the reason advanced by the majority in Delli
Paoli was to tie the result to maintenance of the jury system. "Unless we
proceed on the basis that the jury will follow the court's instructions where
those instructions are clear and the circumstances are such that the jury can
reasonably be expected to follow them, the jury system makes little
sense." We agree that there are many circumstances in which this reliance
is justified. This is a clear statement of the general
rule regarding instructions, but Brutton makes it clear that it cannot always
be followed.
9.
In criminal trial for
theft, the prosecution offers the testimony of a witness who will identify the
defendant as the person she saw running away from the store after hearing the
sound of an alarm. The defense objects. At the bench, so that the jurors cannot
hear what is happening, the court finds that the evidence is relevant to the
case and prejudicial for the defendant because it makes it more likely than it
would be without that evidence that he is the perpetrator of the crime. The
court should exclude the evidence.
True False
Answer: False. Essentially
the same question that I have asked in the past to remind you that the phrase
is “unfairly prejudicial.” As we discussed in class in general, but
particularly in relation to Problem 2-D at page 94. As the notes on the web
indicate Bryan v. State, 450 N.E.2d 53, 57-58 (Ind. 1983). The court in Bryan
v. State, 450 N.E.2d 53, 57-58 (Ind. 1983), found that the evidence was indeed
prejudicial, as any inculpatory evidence in a criminal trial would be, but it
was not unfairly prejudicial. Thefeore,
it passes muster under, or, more accurately, it ought not be excluded using FRE
403, and indeed the finding favors admissibility, not exclusion, so the court
should admit, not exclude.
10.
Even after certain
evidence is found to be relevant, it may be excluded if its probative value is
substantially outweighed by considerations of waste of time.
True False
Answer: True. 403[e][2]
does indeed allow relevant evidence to be excluded on the basis of
considerations of waste of time. My continuing use of 403 rationales, surprise!
Part
II: Hearsay? (36%)
Part
II.A: Hearsay/Nonhearsay (24%)
In each of the following
questions the only issue is whether the evidence, as offered, is or is not hearsay. Assume that Rule 801 (a), (b)
and (c) provide the applicable standard. You should consider the evidence to be
hearsay if it fits within those definitional provisions and nonhearsay if it
does not. In this Part, you must choose between “hearsay” and “nonhearsay”
only. Some of the items may be admissible under some express exemption or
exception included within the rules, but the question is limited to 801(a), (b)
and (c).
1.
On March 5, 2004, David
Fuller is on trial for bank robbery. His ex-wife Ruth Johnson provides damaging
testimony against Fuller during the prosecution’s case-in-chief. During
cross-examination, defense counsel asks Ruth: “Didn’t you write to your sister
Joann, in a letter dated January 3, 2004, ‘David is a cheating piece of scum
who will not pass up any opportunity to hit on another woman.’” The prosecution
makes a hearsay objection, and defense responds that they are only offering it
for impeachment purposes and the court agrees.
hearsay nonhearsay
Nonhearsay: Bias
impeachment based on circumstantial evidence of state of mind (a la Anna Stoufer’s will). Counsel for the defense is
certainly not offering to prove that his client is scum. In this context, the
defense will get the call on the nonhearsay vs. hearsay use every time, as the
court expressly does here.
2.
Senator Hillary Clinton
was killed in a tragic helicopter accident in Afghanistan in late 2004. Her
surviving husband, former President William Jefferson Clinton, files a wrongful
death suit against the manufacturer of the helicopter. He claims damages for
loss of companionship and expected income. The defense offers into evidence a
recording of an interview between Mrs. Clinton and her biographer, which she
had given during her trip to Afghanistan, in which she said: “Bill is a jerk.
He cheats on me all the time. He goes for any woman with big hair and no
brains. ... As soon as I return from this trip, I am cutting him off from any
of my money.” It is offered to prove that Mrs. Clinton was not likely to share
her future income with her husband.
hearsay nonhearsay
Hearsay. This is a
variation of the narrative, as opposed to the verbal act, in Anna Stoufer’s
Will, Problem 3-H at page 151. While the part regarding that Bill is a cheating
jerk might qualify as circumstantial evidence of state of mind, you must look
at the entire statement that is being offered, and there is also a clear
expression of intent that is being offered for a truth purpose (she will not
share her money with him). This was the second most difficult one, which I
thought a bit surprising.
3.
Jonathan Smith is being
criminally prosecuted for violation of 18 U.S.C. sec. 871, providing for fine
or imprisonment for “whoever knowingly and willfully deposits for conveyance in
the mail ... any threat to take the life of, to kidnap, or to inflict bodily
harm upon the President of the United States.” Smith is charged with sending a
letter threatening the life of President George W. Bush from his prison cell at
the federal penitentiary in Terre Haute, Indiana. The prosecution offers into
evidence a letter that bears Smith’s fingerprints, and was in an envelope with
his prisoner identification number, that was received by the White House mail
sorting facility, which reads: “I am going to kill you, George W. Bush. Yours,
sincerely [signed, Jonathan Smith].”
hearsay nonhearsay
Answer: Non hearsay. Verbal
act. From the case discussed in True/False no. 6 above. The letter itself is the crime, the threat that was deposited in the
mails, hence a verbal act. This one was the hardest in this section, though not
nearly as hard as the relevance question in no. 6. The guy really did this, by
the way.
4.
During civil commitment
proceedings against JoAnn Hennesy, her parents, who are trying to
institutionalize her in a psychiatric treatment facility, present testimony
that she told several friends: “I am Alexander the Great, and I am off to
conquer Egypt today.”
hearsay nonhearsay
Answer: Nonhearsay. Yet
again, and gender confusion (or essentialism) notwithstanding, a variation on
“I am Napoleon Bonaparte.” As we discussed in class repeatedly, this statement
is offered to prove lack of mental capacity, and it is nonhearsay.
As
I noted in class, this is the position taken by our casebook authors and by me
in this area. Others, such as professor Graham, take a different position. But,
you are judged in my class in accordance with how the material is taught in
class.
Naturally
these are laboratory conditions, in a real case, this statement would have to
be accompanied by evidence that she was not kidding.
5.
In a criminal trial,
detective Mary Johnson testifies during the prosecution case-in-chief that she
saw the defendant, John Smith, break the windshield of a parked Toyota Camry
and steal a computer bag that was inside. She describes the bag that defendant
took as a tan briefcase with a white shoulder strap. During cross-examination,
defense counsel asks: “Didn’t you testify during the preliminary hearing for
this case that it was black backpack?” “Objection, hearsay,” the prosecutor
says. “We are only offering it for impeachment, your Honor,” defense counsel
says. “Objection overruled,” the Judge says.
hearsay nonhearsay
Nonhearsay. Oral statement
offered as a prior inconsistent statement, not substantively.
6.
In a negligence trial
involving the collision of two automobiles at the intersection of East Madison
and 12th Avenue, Roberto Juárez, testifies during plaintiff Rudolph Hasl’s
case-in-chief. Juárez testifies that he was passenger in Hasl’s car, which was
“t-boned” by the car driven by defendant, Walter Johnson. Juárez testifies that
immediately after the accident Johnson said to Hasl and Juárez: “I am sorry, I
was speeding down Madison and I ran the red light.” The statement is offered as
proof of Johnson’s negligence.
hearsay nonhearsay
Hearsay. The statement is a
an admission in the civil context. It is an assertion of negligence (running
the red light), being offered as proof of fault, so it is hearsay. It is also
clearly admissible under 801(d)(2)(A). The defendant is the plaintiff’s party
opponent.
Part II.B: Hearsay, But
Admissible? (12%)
In the previous part you
decided if the evidence as offered was or was not hearsay, as defined in
Federal Rule of Evidence 801(a), (b) and (c). In this part, as to each
question, you should (1) reiterate that the evidence as offered is nonhearsay,
by selecting that alternative among the multiple choices offered below, or (2)
if you found it to be hearsay, determine whether an exemption (“not hearsay” by
rule fiat) or exception (everything other than non-hearsay or the “not hearsay”
exemptions) is available under Chapter VIII of the FRE, given the evidence as
offered, and the content of the alternative. You must select the best
alternative among those that are offered. You must limit your analysis to the
evidence as offered, and to evaluating it on the basis only of the hearsay
rules. The balancing of Rule 403 should play no role in your decision.
1. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(1)(A).
C.
Hearsay, not admissible because the declarant cannot be cross-examined.
Answer: A. Nonhearsay as
explained above. The statement would also not fit 801(d))(1)(A)’s formal
requirements. C is silly or speculative since the declarant is testifying
(although it might occur if she refuses to answer questions about the letter or
claims lack of memory, but it is not likely).
2. A.
Nonhearsay.
B.
Hearsay, no part of the statement is admissible.
C.
Hearsay, potentially admissible under FRE 803(3).
Answer: C, it is hearsay
because it is an express assertion of intent offered to prove potential future
action in conformity therewith, if she had lived, she would not share her money
with Bill, which is potentially admissible under FRE 803(3). There may be some
reason to edit out the “Bill is a jerk” narrative, but the intent part is at
least potentially admissible under 803(3), so the “no part” language makes B an
inappropriate choice.
3. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(2)(A).
C.
Hearsay, potentially admissible under FRE 803(3).
Answer: A, as explained in
the note for the original question.
4. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(1)(A).
C.
Hearsay, potentially admissible under FRE 803(4).
Answer: A, as explained in
the note for the original question.
5. A.
Nonhearsay
B.
Hearsay, potentially admissible under FRE 801(d)(1)(B).
C.
Hearsay, potentially admissible under FRE 801(d)(2)(A).
Answer: A. It is nonhearsay
impeachment by prior inconsistent statement. If it were hearsay, it is not
consistent with the prior statement, so it would classify as a prior consistent
statement under d1B. It is clearly not an individual party admission either.
6. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(2)(A).
C.
Hearsay, potentially admissible under FRE 803(3).
Answer: B. It is hearsay,
and also clearly admissible under the admissions doctrine against the party
opponent. C is silly.
PART
III: Essay (44%)
General
Instructions for part III
Do
not assume any facts not given to you.
While you are expected to draw reasonable conclusions from the facts given, you
should not assume facts. In this section of the exam, “missing facts” suggest
three possibilities: (1) you need to read the question again, i.e., “it’s in
there somewhere,” (2) I made a mistake and you may need to alert me to it (if
you are convinced that this is what is going on, do not be afraid to ask the
question), or (3) you need to indicate that you need to establish certain facts
in order to provide a complete opinion. In this section of the exam,
identifying missing facts that are necessary to a complete resolution of the
issue may be precisely what you need to do in order to provide a proper
response.
Do
not look for issues that are not relevant to answering the question. The question asked determines the issues raised,
read it carefully and answer the question I asked. Evidence is a broad and
complex course, I have crafted the questions narrowly, do not waste your time
covering issues that the question does not require you to resolve. No credit
will be awarded for discussion of matters not relevant to the resolution of the
question.
Citations. Since this is an open-rule exam, citation should be
made to the appropriate rule, especially the Federal Rules of Evidence,
statutory or Constitutional provision, etc. Case citations will be judged on a
“close-enough” basis. Please keep in mind that my annotated versions of the
rules are helpful shorthand references.
Limited
Space. You must answer the questions
in the space provided therefor in the exam itself. Do not use bluebooks. If do
not wish me to read any part of your answer simply cross it over and I will
ignore that text. If you find that you run out of writing space because of
cross-outs, you may write on the back of the designated answer pages, using no
more space than you crossed out. I encourage you to outline the answers before
you start to write, but do not include scratch paper or any additional material
with your completed exam. In answering the short-essay questions, please be
succinct. You might want to draft the short answer on your scrap paper, before
writing it in the answer space. Please strive for precision, specificity, and
thoughtful analysis in all points you do address.
This matter comes before the Court of Appeals for the
Third Circuit on Stanley Johnson’s appeal from a judgment of conviction and
sentence entered in this criminal case on October 27, 2003. The district court
had jurisdiction pursuant to 18 U.S.C. sec. 3231 and the Circuit has
jurisdiction under 28 U.S.C. sec.
1291.
The background of the case is as follows. On May 2,
2000, a grand jury returned a three-count indictment against Johnson charging
him with conspiracy to commit carjacking, in violation of 18 U.S.C. sec. 371,
carjacking, in violation of 18 U.S.C. sec. 2119 (defining “carjacking” as the
use of force, violence or intimidation to take a vehicle transported in
interstate or foreign commerce from the person of another with “intent to cause
death or serious bodily harm”), and using and carrying a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C. sec. 924(c)(1). The
indictment named Willie Ingram and Anthony Milton as coconspirators. In
particular, it charged that on July 2, 1998, Johnson, Ingram and Milton approached
Donald Foster and Sonia Smith-Burgest as they exited Smith-Burgest’s 1995 Chevy
Blazer and that the three co-conspirators forced Smith-Burgest to remove her
jewelry and then stole the vehicle (the indictment does not charge that the
jewelry was stolen). The indictment alleges that all three men were armed and
that Johnson acted as a lookout.
At the outset of the trial, Johnson’s attorney sought
to prevent the government from introducing evidence related to Johnson’s 1995
conviction for theft for impeachment purposes. This conviction was the result
of a purse-snatching without violence, which netted Mr. Johnson $15.00. The
parties agree as to the essential facts of this theft: Johnson was loitering
near a bus stop in downtown Philadelphia; a person who was waiting for a bus
put her purse down on the bench at the bus stop, and Johnson grabbed it and
ran. The Pennsylvania statute under which Johnson was convicted reads, in
pertinent part: “A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to
deprive him thereof.” (18 Pa. C.S. sec. 3921 (2004)). The judgment of
conviction was duly certified by the clerk of the Philadelphia Superior Court.
The district court previously had denied Johnson’s
motion to preclude introduction of the prior conviction on cross-examination
and thus his attorney was asking the court to revisit this issue. There is no
record of the basis for the earlier ruling. The appeal here, however,
challenges only the second ruling. At that time, the government argued on
alternative grounds that the evidence of the prior conviction could be used for
impeachment purposes under Federal Rule of Evidence 609. First, it maintained
that the evidence was admissible pursuant to Rule 609(a)(1). Second, the
government asserted that the evidence of the prior conviction was admissible as
a crime involving dishonesty or false statement pursuant to Rule 609(a)(2).
After hearing argument, the district court found that
the evidence was admissible under Rule 609(a)(2) stating:
I
think that if you take something with the intent to benefit yourself and you
know you’re not entitled to it, that is a sufficient element of dishonesty to
bring it within the rule. And it is my opinion that it would be appropriate to
cross-examine Mr. Johnson as to the theft.
Appelant’s Appendix
(hereinafter “AP”) at 34. However, the court also stated that the evidence
would alternately be admissible under Rule 609(a)(1).
At the trial,
Smith-Burgest positively identified Johnson and testified that he stood off to
the side during the carjacking and never said anything and that she did not see
any gun in his hand. Foster also testified, but was able to identify only
Ingram as one of the carjackers, as he did not get a good look at the faces of
the other two perpetrators. He indicated, however, that Smith-Burgest did get a
good look at them. Foster explained that he could not identify the man who
ordered Smith-Burgest to remove her jewelry, but that he was “the short guy.”
AP at 127. He further testified that the two taller men, Ingram and another
individual, pointed guns at him. Of the three men, Ingram and Johnson were
significantly taller than Milton.
All three defendants pleaded not-guilty, moved for and
were granted separate trials. Neither Milton nor Ingram testified at Johnson’s
trial.
Johnson testified in his own defense. He said that on
the evening of July 2, 1998, he had gone out around midnight to try to buy some
marijuana for personal use and that while he was on the street he saw Milton
and Ingram. According to Johnson, Ingram was holding a gun and asked him to
“watch for cops.” AP at 155. Johnson explained at trial that Ingram had a bad
reputation in the neighborhood and had “shot at people.” Id. He testified that
he acted as a lookout during the robbery and carjacking because he was afraid
that Ingram might shoot him if he did not participate. Johnson testified that,
after the completion of the robbery, Ingram yelled at him to get into the
stolen car and that he did so. Johnson testified that he did not have a weapon
during the carjacking. On cross-examination, the prosecutor questioned Johnson
regarding his 1995 theft conviction for purposes of impeachment.
The district court gave the following instruction to the
jury regarding Johnson’s theft conviction:
The testimony of a witness may be discredited or
impeached by evidence showing that the witness has been convicted of a felony,
a crime for which a person may receive a prison sentence of more than one year.
Prior conviction of a crime that is a felony is one of the circumstances which
[sic] you may consider in determining the credibility of that witness. Another
circumstance that you may consider is if the crime involved false statements.
It is the sole and exclusive right of you, the jury,
to determine the weight to be given to any prior conviction as impeachment and
the weight to be given to the testimony of anyone who has previously been
convicted of a felony.
You have heard that the defendant Stanley Johnson was
convicted of a felony. You may consider that evidence when deciding, as you do
with any other evidence, how much weight to give the defendant’s testimony.
This earlier conviction was brought to your attention only as one way of
helping you decide how believable his testimony was. You must not use his prior
conviction as proof of the crimes charged in this case or for any other
purpose. It is not evidence that he is guilty of the crimes that he is on trial
for in this case.
AP at 251-52. The jury found
Johnson guilty on all three counts. The district court subsequently sentenced
him to concurrent terms of 100 months in prison to be followed by three years
of supervised release. He timely appealed his conviction.
Johnson maintains that the district court erred in
allowing the government to impeach his testimony with his 1995 theft
conviction. He argues that the theft conviction was not admissible under Rule
609(a)(2) because it is not a crime that “involved dishonesty or false statement.”
Johnson further contends that the admission of his theft conviction was
reversible rather than harmless error and therefore the Circuit Court must
reverse his convictions on all three counts.
The government denies that the district court erred in
allowing it to impeach Johnson as to his prior theft conviction as a crime
involving dishonesty or false statement under Rule 609(a)(2). Appellee’s Brief
at 12. It maintains, however, as it did in the district court, that the
conviction was also admissible under Rule 609(a)(1) as a crime punishable by
imprisonment in excess of one year. The government urges the Circuit Court to
affirm the District Judge’s stated alternate ground for admissibility under
this rule. The government then argues that given the absence of explicit
“balancing” findings the Circuit Court may conduct a plenary review and, under
that standard of review, should find that the probative value of the theft
conviction outweighed its prejudicial impact on Johnson. The government contends
that, in any event, even if evidence of the conviction for theft should not
have been admitted the error was harmless.
INSTRUCIONS:
You are a law clerk
for the Honorable Theodore A. McKee, Circuit Judge in the United States Court
of Appeals for the Third Circuit. Judge McKee has been designated to draft the
court’s opinion reversing the District Court decision to admit evidence of
Johnson’s prior conviction for impeachment purposes under FRE 609. Among other
necessary findings, judge McKee instructs you that the court will hold that
admission of the evidence of the theft conviction was error because there were
no legitimate grounds for such a ruling. Specifically, the court will rule that
the District Court erred in admitting the conviction under FRE 609(a)(2). The
court will rule further that the evidence should also have been excluded under
the pertinent section of FRE 609(a)(1).
Judge McKee explains further: “We [the Circuit Court] review a district court’s decision to admit evidence for abuse of discretion but we exercise plenary review over a district court’s construction of the Federal Rules of Evidence. United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001). The District Court found that the 1995 conviction for purse snatching was punishable by imprisonment for a term in excess of one year. Johnson’s attorney conceded that there was no dispute on this point and that Johnson agreed that the one-year statutory threshold in Rule 609(a)(1) had been satisfied. However, we will conduct plenary review of the “balancing” that is required by Rule 609(a)(1). In this regard, we act as if we were the District Court.”
Judge McKee instructs
you to draft an opinion for the court that is consistent with these
instructions and thoroughly addresses the facts and arguments that are
described above, together with all pertinent rules and doctrines.
The text of the
question is taken almost verbatim from the court’s opinion in United States
v. Johnson, 388 F.3d 96 (3rd Cir.
2004).
ANSWER:
Judge McKee actually concurred in the judgment, but he took time in his opinion to develop some of the issues that I instructed you to discuss, which gave me the idea for how to craft my question. The opinion gives you a very good idea of what issues to discuss and how to do so. I recommend that you read it, and pay special attention to Judge McKee’s concerns regarding 609(a)(1).
In general, and in very abstract form, I awarded points for the following categories of discussion:
103(a), there was a timely objection, the error was not harmless, 104(a) on admissibility, occurrence of the act properly established established. I was not picky about where this particular discussion took place, since you could correctly leave at least some of it for last.
Relevance: 401-402: offered
only for impeachment purposes, but dangers of guilt (AICT) and bad person uses.
There were at least five evidential hypos, two permissible, one arguable but not pursued, and two impermissible.
(1) Defendant has been convicted of a crimen falsi, therefore making it more likely than it would be without that evidence that his trial testimony is false.
(2) Defendant has been convicted of a felony, and people convicted of felonies are more likely than others to lie on the witness stand, therefore defendant’s testimony is more likely to be false.
(3) Defendant has been convicted of a theft, which might counter his defense of innocent involvement (404(b)).
(4) Defendant has been convicted of theft, therefore he is a bad person who deserves to go to jail.
(5) Defendant has been convicted of theft, is a thief and is therefore more likely to have committed the carjacking.
4 and 5 are impermissible under 404, and 3 was pursued neither by the prosecution nor by the trial court and must be at least implicitly rejected if the court of appeals is to reverse.
Character Dangers? 404 dangers, bad person, AICT,
405(a)[2], least favored, 404(a)(3) trumps 404(b). Most students identified this issue, but not in much detail.
Other acts for impeachment. NOT 608(b) because of conviction and not so offered. Almost no one in the class raised this one, despite our discussion about it.
Criminal conviction for
impeachment. NOT 609(a)(2); Not 609(a)(2) but rather (a)(1)[B], + there was not
enough here to admit.
I was shocked and dismayed by many references to the “presumption of ADMISSIBILITY” created by FRE 609(a)(1)[B]. Relative to FRE 403, which indeed creates a presumption of admissibility by establishing a balancing test in favor thereof, 609(a)(1)[B] creates a presumption of INADMISSIBILITY, despite the use of the word “shall” because it adopts a balancing test that requires probative value to outweigh unfair prejudice. Given the amount of time that I spent on this in class, this was an unforgivable error.
DATES: Students picked one date to test the recency or remoteness of the conviction for 609 purposes without addressing the debate over the end-date. Keep in mind that the prior conviction occurred in 1995, the underlying charge in 1998, the indictment in 2000, and the trial in 2003, and that there are interesting arguments in favor of each date as the stop date for the remoteness analysis.
Lipscomb rules and Gordon Factors
Nature of the conviction FOR THE PURPOSE for which it is offered. Does this purse-snatching tell us anything about Johnson’s credibility? How strong is the statement.
Similarity. Shoplifting and carjacking are probably similar enough to create unfair prejudice, but too dissimilar to allow a fair/specific AICT argument. Also, though many emphasized the non-violent nature of the purse snatching, few commented on the caselaw that indicates that violence (whether present or absent) does not by itself tell us much about truth-telling.
Recency or remoteness. See discussion above about end-dates and lack of discussion of multiple possibilities and why any one should be chosen.
D’s record is otherwise clean or not. Pattern of conduct is much more probative, though perhaps potentially more prejudicial as well if AICT is not allowed and for Bad Person inferences that are never allowed.
Not 403 but 609(a)(1)[B] reverse balancing. 105 limiting instruction did not cut it (i.e., did not lower unfair prejudice to acceptable levels. Many students simply wrote that a limiting instruction was not needed, since the evidence should have been excluded. However, you really could have used the limiting instruction much more by stating that the instructions that were given were either faulty or failed to lower the unfair prejudice of the admission. As I indicated above, it was important to note that 609(a)(1) changed the applicable evidentiary balancing because the defendant was taking the stand.