Selected Materials on the Law of Evidence

Colin Miller

University of South Carolina School of Law

CALI eLangdell Press 2013

This eBook collects six previously published chapters from Professor Colin Miller into one volume.

About the Author

Professor Miller teaches Evidence, Criminal Procedure, Criminal Law, and Civil Procedure. He is the creator and Blog Editor of EvidenceProf Blog of the Law Professor Blogs Network. He is the Editor of Illinois Criminal Procedure and drafted a 100 page report comparing the Federal Rules of Evidence to Illinois evidentiary principles, which was used in the creation of the first Illinois Rules of Evidence.

Professor Miller received his B.A. degree with distinction from the University of Virginia and his J.D. (Order of the Coif) from the William & Mary Law School.

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Table of Contents

Cover

Title Page

About the Author

Notices

About CALI eLangdell Press

Propensity Character Evidence

I. A Definition of Propensity Character Evidence

II. Common Law Origins of the Propensity Character Evidence Proscription

A. England

B. United States

III. Federal Rules of Evidence

A. Federal Rule of Evidence 404(a)(1)

B. Federal Rule of Evidence 404(a)(2) – The Mercy Rule

C. Federal Rule of Evidence 405(b) – Character “In Issue”

IV. Character Evidence Motions

Plea and Plea-Related Statements

I. The Rule

II. Historical Origins

III. Prohibited Evidence Under the Rule

A. Rule 410(a)(1) and withdrawn guilty pleas

B. Rule 410(a)(2) and nolo contendere pleas

C. Federal Rule of Evidence 410(a)(3) and statements made during plea proceedings

D. Rule 410(a)(4) and statements made during plea discussions

IV. Permissible Evidence Under the Rule

A. Rule 410(b)(1) and the rule of completeness

B. Rule 410(b)(2) and perjury/false statement proceedings

V. Waivers

VI. Rule 410 Motions

Rape Shield Rule

Preface

Introductory Note

I. Historical Background

II. Rule 412(a)(1): The General Proscription

III. Rule 412(b)(1): Criminal Exceptions

IV. Rule 412(b)(2): Civil Exception

V. Rule 412(c): Procedure for Admissibility in Criminal Cases

VI. Rape Shield Pleadings

Jury Impeachment

Preface

I. The Rule

II. Historical Origins

III. The Drafting of Federal Rule of Evidence 606(b)

IV. Public Policy Underlying Federal Rule of Evidence 606(b)

V. Supreme Court Precedent

VI. 606(b): The External/Internal Distinction

A. 606(b)(2)(A): Extraneous Prejudicial Information

B. 606(b)(2)(B): Improper Outside Influences

C. 606(b)(2)(C): Mistake in Entering the Verdict on the Verdict Form

VII. Situations Where Rule 606(b) Does Not Apply

A. Testimony by Nonjurors

B. Juror Testimony Not Offered to Impeach a Verdict

VIII. Splits in Authority

A. States without Counterparts to Rule 606(b)

B. Minnesota’s Violence Exception to Rule 606(b)

C. Testimony About the Effect on Deliberations of Extraneous Prejudicial Information/Improper Outside Influences

D. Allegations of Juror Racial, Religious, or Other Bias When Jurors Are Not Questioned Regarding Bias on Voir Dire

IX. Jury Impeachment Pleadings

Impeachment by Evidence of a Criminal Conviction

I. An Introduction to Impeachment Evidence

II. The Rule

III. Historical Origins

IV. Federal Rule of Evidence 609

A. Passage of Rule 609

B. Federal Rule of Evidence 609(c)

C. Federal Rule of Evidence 609(d)

D. Federal Rule of Evidence 609(a)(2)

E. Federal Rule of Evidence 609(a)(1)

F. Federal Rule of Evidence 609(b)

G. Rule 609 Flowchart

H. Other Aspects of Rule 609 & Constitutional Considerations

V. Conviction Impeachment Motions

Best Evidence Rule

Preface

Introductory Note

I. Historical Origins of the Best Evidence Rule

II. Article X: The Modern Best Evidence Rule

A. Rule 1002: The Rule’s Scope

B. Rule 1001: Defining the Relevant Terms

C. Rule 1003: The Duplicate Exception

D. Rule 1004: Excusing Nonproduction of Originals

E. Rule 1005: Public Records

F. Rule 1006: Summaries

G. Rule 1007: Admissions

H. Rule 1008: Functions of the Court and Jury

I. The Best Evidence Framework

J. Best Evidence Pleadings

Footnotes

Evidence:

Propensity Character Evidence

Colin Miller

The John Marshall Law School

CALI eLangdell Press 2013

Propensity Character Evidence

I. A Definition of Propensity Character Evidence

Propensity character evidence is the use of evidence of a person’s character or trait of character to prove that he has a propensity to act in a specific manner and thus that he likely acted in conformity with that propensity at the time of an alleged pre-trial wrong. For instance, evidence that a defendant charged with a crime of violence had a reputation for being violent would be propensity character evidence. This is because it would be used to prove his propensity for acting violently and his likely conformity with that propensity at the time of the crime charged.

Alternatively, propensity character evidence can be defined more simply as evidence whose probative value depends upon the aphorism, “[o]nce a criminal, always a criminal,” such as evidence that a person on trial for robbery had committed robberies before (“Once a robber, always a robber.”). See Alegata v. Commonwealth, 231 N.E.2d 201, 209 (Mass. 1967) (“The concept of ‘once a criminal always a criminal’ is abhorrent to our law.”).

II. Common Law Origins of the Propensity Character Evidence Proscription

A. England

In England, before the 17th Century, courts admitted almost any type of evidence, with the only limitation being rules deeming certain categories of individuals “incompetent” to testify. All other forms of evidence were admissible under the inquisitorial system, which had reigned in England since the Norman Conquest and which found an evidentiary code unnecessary. Under the inquisitorial system, “it was not considered irregular to call witnesses to prove a prisoner’s bad character in order to raise a presumption of his guilt.” John H. Langbein, The Origins of Adversary Criminal Trial 190-91 (2003).

This open door policy with regard to propensity character evidence could be explained by the inquisitorial system’s assumption that the accused committed a crime and the concomitant requirement that he affirmatively prove his innocence. One of the most conspicuous consumers of propensity character evidence, and ultimately the harbinger of its death, was The Court of Star Chamber. Established in 1487, the Star Chamber was an expeditious way for the Tudors and Stuarts to exorcise political and religious dissenters of the monarchy while masquerading as a court conducting treason trials. The Star Chamber was the Crown’s “organ of terror, renown[ed] among the citizenry for its arbitrary and cruel decisions,” and one of its most capricious practices was the deluge of character evidence it admitted, resulting in defendants being punished for their sordid character rather than their culpable conduct. Cheryl Swack, Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral Between France and the United States, 22 Colum.-VLA J.L. & Arts 361, 381 n.135 (1998).

The Star Chamber engendered widespread animosity in the citizenry in the years preceding the English Civil War, eventually prompting the revolutionary Long Parliament to abolish it in 1641. At the close of the English Civil War, the Restoration, and the Glorious Revolution, the same dissidents who were subjected to the monarchy’s organ of terror had wrested control of the Parliament, but still felt the sting of the Star Chamber. In an effort to prevent the ills of the past from infecting the future, these new power wielders passed the Treason Act of 1695, which contained a provision proscribing prosecutors from proving at trial any overt acts by the defendant which were not charged in the indictment, thus precluding the admission of propensity character evidence. While this prohibition on propensity character evidence was initially limited to treason trials, it soon permeated all criminal trials, with courts and commentators recognizing that the use of such evidence violated the right to due process of law guaranteed by the Magna Carta.

B. United States

Eventually, the English ban on propensity character evidence carried across the pond, with American courts in both civil and criminal cases adopting a similar exclusionary rule in the middle of the 19th Century based upon the Treason Act and similar English law. Indeed, in holding in 1892 that a trial court erred in admitting evidence indicating that two defendants on trial for murder had previously committed robberies, the United States Supreme Court in Boyd v. United States, 142 U.S. 450, 458 (2009), forcefully stated that:

Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death….However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offence charged.

While this quotation accurately describes the common law judicial proscription on the introduction of propensity character evidence, there were three circumstances in which courts allowed parties to prove the character of a party or witness.[1] First, in rape and sexual assault cases, courts allowed defendants to present evidence of the alleged victim’s character for promiscuity as evidence that she consented to the sexual act at issue. This practice was ended with the eventual adoption of rape shield laws, which are the topic of the Rape Shield Chapter of this casebook.

Second, under the so-called “mercy rule,” a criminal defendant could inject the issue of character into his trial and present pertinent propensity evidence concerning his good character and/or the alleged victim’s bad character. Accordingly, a defendant charged with assault could have witnesses testify that he was a peaceable person, and, if he were claiming self-defense, he could call witnesses to testify that the alleged victim was a violent person. Only at that point could the prosecution call witnesses to testify that the defendant was violent and/or that the alleged victim was peaceable. But if the defendant did not want propensity character evidence to pervade his trial, all he needed to do was refrain from presenting his own character witnesses, and the state would be precluded from presenting its own. Thus, Pandora’s Box was firmly in the criminal defendant’s hands.

Third, in either civil or criminal cases where courts determined that character was “in issue,” they also allowed for the admission of character evidence, not for propensity and conformity purposes, but because character itself was an (essential) element of a charge, claim, or defense. To wit, under the common law tort of seduction, a man could be sued for having persuaded a chaste woman to have sexual intercourse with him based upon a promise of marriage. Thus, an element of a defense in such a case was that the alleged victim was not in fact chaste, permitting the presentation of evidence that she had a lascivious character or had engaged in prior acts of sexual intercourse.

This type of case provides a nice illustration of why character evidence in such cases did not require a propensity/conformity analysis. In a seduction case, the defendant would not be using evidence of the alleged victim’s lascivious character and past acts of sexual intercourse to prove that she had a propensity to engage in sexual acts and that she likely acted in conformity with this propensity at the time of the alleged seduction; indeed, his defense might be that no sexual act occurred between the victim and himself. Instead, the defendant would be using the evidence to prove that the alleged victim was not chaste and thus could not be a victim of seduction. See Colin Miller, Killed on the Fourth of July: July 4th Murder Case Helps Explain Federal Rule of Evidence 404(b), EvidenceProf Blog, July 4, 2008, http://lawprofessors.typepad.com/evidenceprof/2008/07/killed-on-the-f.html.

III. Federal Rules of Evidence

A. Federal Rule of Evidence 404(a)(1)

Federal Rule of Evidence 404(a)(1) currently provides that

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Rule 404(a)(1) thus continues the common law proscription on the introduction of propensity character evidence in both civil and criminal cases. As noted in the Advisory Committee’s Note to Rule 404, Rule 404(a)(1) deems inadmissible “evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft.”

There are generally three types of propensity character evidence that are not admissible under Rule 404(a)(1): (1) reputation, (2) opinion, and (3) specific act evidence. So, for instance, a witness could not testify in an assault case that he had been the defendant’s neighbor for 5 years and that the defendant had a reputation in the neighborhood for being violent. See, e.g., State v. McBride, 618 S.E.2d 754, 757 (N.C. App. 2005) (finding that testimony that a defendant charged with possession of cocaine and related crimes had a reputation for being a dealer of drugs such as cocaine was improperly admitted). Similarly, a witness could not testify in a child abuse case that he had known the victim for 5 years and that, in his opinion, the victim was a violent person. See, e.g., State v. Leber, 246 P.3d 163 (Utah.App. 2010) (finding that the trial court erred in a child abuse case by allowing the defendant’s ex-wife to testify “that it was her opinion that he is violent with children”). Finally, the prosecution could not present evidence that a defendant charged with a crime of violence had previously committed acts of violence and/or had prior convictions for crimes of violence. See, e.g., United States v. Ferguson, 425 Fed.Appx. 649 (9th Cir. 2011).

There are three main reasons why the rules continue to deem propensity character evidence inadmissible:

First, there is a concern that a jury will convict a defendant as a means of punishment for past deeds or merely because the jury views the defendant as undesirable….Second, there is a “possibility that a jury will overvalue the character evidence in assessing the guilt for the crime charged.”… Third, it is unfair to require a defendant to defend not only against the crime charged, but moreover, to disprove the prior acts or explain his or her personality. Kaufman v. People, 202 P.3d 542, 552 (Colo. 2009).

Hypothetical 1: Francine Johnson and the Leadership Council For Metropolitan Open Communities bring an action against Robert and Rosemary Pistilli, alleging a violation of the Fair Housing Act, 42 USC § 3604. The plaintiffs allege that Johnson, an African-American woman, left several messages for the Pistillis, seeking to view available apartments owned by the Pistillis, and that they failed to return her phone calls because of her race. In response, the Pistillis seek to call two witnesses who would testify that the Pistillis have a good reputation in the African-American community for the “manner in which they treat people of color.” Should these witnesses be allowed to testify? See Johnson v. Pistilli, 1996 WL 587554 (N.D.Ill. 1996).

Hypothetical 2: John and Michelle Sandalis are convicted of tax fraud and tax evasion based upon failure to report revenue from their business, Dalis Painting. After they are convicted, they appeal, claiming, inter alia, that the district court erred by allowing the following exchange:

Prosecutor: “Have you formed an opinion regarding John [Sandalis]’s character for honesty?”

Witness: “I don’t think he’s a very truthful person.”

Was this testimony properly admitted? See United States v. Sandalis, 39 Fed.Appx. 798 (4th Cir. 2002).

Hypothetical 3: Christopher Branch is charged with first-degree murder. Branch was under the influence of drugs and alcohol when he struck the victim with his truck, projecting him several feet. Two witnesses testified that Branch did not slow down as he approached the victim and purposefully swerved to hit him. At trial, the prosecution also presented evidence that Branch was previously convicted of a robbery that he committed under the influence of drugs and alcohol, and that he refused to undergo the ordered treatment. According to the prosecution, “Defendant was an individual that simply did not care to try to address his drug and alcohol problem, a problem that the evidence established contributed to the death of [Victim].” Was this evidence related to the prior conviction properly admitted? See State v. Branch, 241 P.3d 602 (N.M. 2010).

B. Federal Rule of Evidence 404(a)(2) – The Mercy Rule

1. Rule 404(a)(2): Injecting Propensity Character Evidence Into a Criminal Trial

Federal Rule of Evidence 404(a)(2) provides that

The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

The Federal Rules of Evidence thus continue to apply the common law mercy rule. The Advisory Committee noted that it was maintaining the “mercy rule” in criminal cases because it was “so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.”[2]

Initially, the Rule did not make clear whether this mercy rule applied only in true criminal cases or also in quasi-criminal cases, i.e., civil proceedings where a judgment rendered against the party necessitates a finding that the party committed a particular act that was also punishable under criminal law (e.g., a wrongful death action). In 2006, however, the Rule was amended to make clear that the mercy rule only applies in criminal cases and “that in a civil case evidence of a person’s character is never admissible to prove that the person acted in conformity with the character trait.” According to the Advisory Committee, “[t]he circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay.” The mercy rule is in place “because the accused, whose liberty is at stake, may need ‘a counterweight against the strong investigative and prosecutorial resources of the government.’” Conversely, the Advisory Committee found that these “concerns do not apply to parties in civil cases.”

Under Federal Rule of Evidence 404(a)(2), then, the defendant in a criminal trial can present no propensity character evidence and maintain Rule 404(a)(1)’s proscription on the prosecution presenting any propensity character evidence against him.

On the other hand, under Rule 404(a)(2)(A), the defendant can present evidence of his good character for a pertinent character trait, which then opens the door for the prosecution to present evidence of his bad character for that same character trait. Thus, for instance, in Bell v. State, 725 So.2d 836 (Miss. 1998), a capital murder case, the defendant was allowed to have character witnesses testify that he was not violent and that he would not hurt anyone who did not first “do something to him.” In turn, this opened the door for the prosecution to have members of the police force testify that the defendant’s reputation in the community for violence was bad.

Moreover, under Rule 404(a)(2)(B), subject to the Rape Shield Rule contained in Federal Rule of Evidence 412, the defendant can present evidence of the alleged victim’s bad character for a pertinent character trait, which then opens the door for two types of character evidence.[3] First, under Rule 404(a)(2)(B)(i), after the defendant attacks the alleged victim’s character for a pertinent trait, the prosecution can present evidence of the alleged victim’s good character for that same character trait. For instance, in State v. Jennings, 430 S.E.2d 188 (N.C. 1993), a defendant charged with the first-degree murder of her 80 year-old husband was allowed to present opinion testimony that her husband was mentally confused and demented, which in turn allowed the prosecution to present evidence of the husband’s competence.

Second, under Rule 404(a)(2)(B)(ii), after the defendant attacks the alleged victim’s character for a pertinent trait, the prosecution can also present evidence of the defendant’s bad character for that same character trait. For example, in People v. Fuiava, 269 P.3d 568 (Cal. 2012), a defendant charged with first-degree murder of a peace officer was allowed to present evidence that the officer had a reputation and character for engaging in violence, which in turn allowed the prosecution to present evidence of the defendant’s bad character for violence. See Colin Miller, Rubber & Glue: Supreme Court of California Finds No Problem With Crossover Character Evidence Rule, EvidenceProf Blog, May 29, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/05/federal-rule-of-evidence-404a2bprovides-that-in-a-criminal-action-bsubject-to-the-limitations-inrule-412-a-defendan.html.

What is currently Rule 404(a)(2)(B)(ii) was added to the mercy rule by amendment in 2000, with the Advisory Committee noting that “[t]he amendment makes clear that the accused cannot attack the alleged victim’s character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused.” According to the Advisory Committee, “the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim.” To date, at least 14 other states/territories “have since adopted the same or a similar rule.” Fuiava, 269 P.3d at 629.

In most cases, then, Pandora’s Box remains firmly in the criminal defendant’s hands. If the defendant wants to keep propensity character evidence out of his trial, he merely needs to refrain from presenting any propensity character evidence. And, if he wants to inject the issue of character into trial, he may do so, but he opens the door to the prosecution responding in kind.

As the language of Rule 404(a)(2)(C) makes clear, however, there is one situation in which the prosecution can present propensity character evidence before the defendant injects the issue of character into trial: If the defendant in a homicide case claims self-defense and presents evidence that the alleged victim was the first aggressor, the prosecution can present evidence of the alleged victim’s character for peacefulness.

In other words, even if a defendant in a homicide case merely presents evidence that the alleged victim was the first aggressor in the case at hand and does not present evidence that the alleged victim generally had a character for being violent and/or aggressive, the prosecution can present evidence concerning the alleged victim’s general peacefulness. As an example, in United States v. Weise, 89 F.3d 502 (8th Cir. 1996), the defendant was charged with second-degree murder after fatally stabbing the victim in the chest with an eight-inch butcher knife. The defendant claimed that the victim was the first aggressor, but presented no evidence that the victim was generally a violent or aggressive person. After the defendant was convicted, the Eighth Circuit found no error with testimony by the victim’s brother and others concerning the victim’s peaceful character pursuant to what is now Rule 404(a)(2)(C).

It is important to note, though, that Rule 404(a)(2)(C) only applies when a defendant “coupl[es] self-defense with evidence of first aggression by the victim in a homicide case….” State v. Austin, 686 N.E.2d 324, 327 (Ohio App. 7 Dist. 1996). If a homicide defendant claims self-defense based upon the theory that he was the first aggressor but that his right to self-defense was revived because, inter alia, the victim escalated the fight to the deadly level, Rule 404(a)(2)(C) would not apply. See Colin Miller, Be Aggressive: Why Does Rule 404(a)(2)(C) Only Apply In First Aggressor Cases & Not Other Self-Defense Cases?, EvidenceProf Blog, June 11, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/06/im-currently-working-on-an-article-onfederal-rule-of-evidence-404a2c-which-states-that-despite-the-general-ban-on-the.html.

Nor would the Rule apply in a case in which a homicide defendant claims self-defense based upon the victim’s past acts of violence against him but does not claim that the victim was the first aggressor in the incident leading to his death. See State v. Copenny, 888 S.W.2d 450, 455 (Tenn.Cr.App. 1993).

Of course, even when the criminal defendant and/or the prosecution can present character evidence under Rule 404(a)(2)(A)-(C), that evidence must relate to a character trait that is pertinent to an issue at trial. In a murder trial, a defendant claiming self-defense could present evidence about the victim’s reputation for violence, but could not present evidence about the victim’s reputation for dishonesty. Conversely, if the defendant were charged with defrauding the victim, he could present evidence about the victim’s reputation for dishonesty, but could not present evidence about the victim’s reputation for violence. For example, in Wilkinson v. State, 979 A.2d 1111 (Del.Supr. 2009), the Supreme Court of Delaware found that a trial court did not err in precluding the defendant from presenting character evidence that he was “hardworking” in his prosecution for two counts of rape in the first degree. Moreover, only evidence of specific character traits is admissible; evidence of a witness’ “good character,” “bad character” or “never being in trouble before” is inadmissible. See id.

2. Rule 405(a) Methods of Proving Character Under the Mercy Rule

Moreover, even when the criminal defendant and/or the prosecution can present evidence under Rule 404(a)(2)(A)-(C), they are constrained by Federal Rule of Evidence 405(a), which provides that

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

Thus, pursuant to Rule 405(a), when the prosecution or defense calls a character witness, on direct examination, the character witness can only offer (1) opinion or (2) reputation[4] testimony. So, for instance, a defendant in an assault trial could call a neighbor to testify, “I’ve been the defendant’s neighbor for 5 years, and in my opinion he’s non-violent,” or “I’ve been the defendant’s neighbor for 5 years, and he has a reputation in the neighborhood for being non-violent.” In turn, the prosecution could then call a different neighbor to testify, “I’ve been the defendant’s neighbor for 5 years, and in my opinion he’s violent,” or “I’ve been the defendant’s neighbor for 5 years, and he has a reputation in the neighborhood for being violent.” But, on direct examination, the defense character witness could not testify concerning specific instances of non-violence by the defendant (e.g., “He turned the other cheek when a neighbor punched him.”). See, e.g., Biagas v. State, 177 S.W.3d 161 (Tex.App.-Houston [1 Dist. 2005]) (finding that the trial court erred by allowing a defense character witness to testify that the defendant charged with theft never stole from him at work). And, on direct examination, the prosecution character witness could not testify concerning specific instances of violence by the defendant (e.g., “He punched someone at the neighborhood barbeque.”). See, e.g., United States v. Reese, 568 F.2d 1246 (6th Cir. 1977) (finding that the district court erred by allowing the prosecution to call witnesses to testify that they committed prior burglaries at the behest of the defendant after the defendant called four witnesses to testify to his good reputation for truthfulness).

As Rule 405(a), notes, however, on cross-examination of a character witness, the court may allow a party to inquire into specific instances of conduct. Typically, this inquiry involves the party asking the character witness questions that begin with “Did you know…,” “Have you heard…,” or “Were you aware…” See, e.g., Harrison v. State, 241 S.W.3d 23, 25 (Tex.Crim.App. 2007). For example, if the defendant in a murder case calls a character witness to testify that he believed the defendant to be a peaceful person, on cross-examination, the prosecution could ask that witness, “Did you know that the defendant committed an aggravated assault on September 19, 1991?” or “Did you know that defendant had assaulted his girlfriend…?” See Allison v. State, 1994 WL 699076 (Tex.App.-Hous [14 Dist. 1994]). Similarly, if the prosecution in a capital murder case called a character witness to testify that he believed the victim had a peaceful character, defense counsel could ask that witness on cross-examination whether she had heard about incidents in which the victim had acted aggressively. See Mack v. State, 928 S.W.2d 219 (Tex.App.-Austin 1996).

In either of the above cases, the purpose for asking the question is not to prove that the defendant or the alleged victim had a propensity to act violently and thus likely acted in conformity with that propensity at the time of the crime charged. Instead, with the regard to the specific instance in question,

If the witness has not heard of it, then an implication is created that he is not sufficiently qualified to attest to the defendant’s reputation in the community. If the witness has heard about the specific act, and still testifies to the defendant’s good reputation in the community, then an implication is created that the community itself is suspect, or that the witness is lying about the good reputation. United States v. Kinsella, 545 F.Supp.2d 158, 162 (D. Me. 2008).

Because such questions are directed toward probing the character witness’ testimonial qualifications rather than proving the character of the defendant or the victim, the party cannot prove the specific instance through extrinsic evidence. In other words, the party asking the question is “stuck with whatever the witness responds.” United States v. Merz, 50 M.J. 850, 852 (N.M.Ct.Crim.App. 1999). So, for instance, in Merz, a defendant court-martialed for wrongful use of marijuana called a Chief as a character witness to testify that the defendant was “very honest” and that one of his “greatest qualities…is his honesty.” Id. The government then asked the Chief, “Are you aware that, upon entrance into the military, he failed to disclose his involvement in a burglary, upon enlistment?” Id. When the Chief responded, “No, sir,” the government was left with that answer and could not use extrinsic evidence such as the defendant’s enlistment papers to prove the failure to disclose the burglary. Id.

Because questions regarding specific instances of conduct are admissible for one purpose, but inadmissible for another, they are “often accompanied by a limiting instruction.” Kinsella, 545 F.Supp.2d at 162. The essence of such a limiting instruction is that the jury can consider the question and answer as evidence going only to the extent of the witness’ knowledge of the defendant/victim and the weight to be given to his opinion of his character. See Reel v. State, 702 S.W.2d 809, 810 (Ark. 1986).

There are two limitations on cross-examination regarding specific instances of conduct under Rule 405(a): First, the party asking the question(s) must have a good faith factual basis to believe that the defendant or victim committed the instances of conduct. Second, the incidents must be relevant to the character traits of the defendant or victim that are testified to by the character witness. United States v. Dillard, 2009 WL 4034812 (5th Cir. 2009). For instance, in Moore v. State, 143 S.W.3d 305 (Tex.App.-Waco 2004), a defendant charged with retaliation against a public servant presented evidence of his good character, which then opened the door for the prosecution to have character witnesses testify that the public servant had a good reputation for honesty. In addressing the defendant’s appeal after his conviction, the Court of Appeals of Texas, Waco, found that the trial court properly allowed the defendant to ask these character witnesses about the public servant’s prior theft convictions, and properly did not allow him to ask them about the public servant’s DUI conviction because it was not relevant to his truthful character. See id.

A defendant can, however, present evidence of specific instances of violence by the alleged victim if he is claiming self-defense and not using the prior acts to prove the alleged victim’s propensity to act violently and likely conformity with that propensity at the time of the crime charged. If the defendant can present evidence that he was aware of the alleged victim’s prior acts of violence, he can admit evidence of them, not to prove propensity/conformity, but for the purpose of showing his reasonable apprehension of immediate danger. Some courts refer to this use as “communicated character” because the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not. See, e.g., State v. Laferriere, 945 A.2d 1235 (Me. 2008).

Hypothetical 4: Henry Hyunchoon Pak is charged with assault and emergency call interference. Before trial, defense counsel informed the judge that he planned to call Pak’s brother to testify that he believed Pak to be a nonviolent person. In response, the following exchange took place:

THE COURT: Character witnesses are usually not admissible in criminal cases. I don’t know [what] the purpose of character witnesses would be; his character is not in dispute, is it? Do you [the prosecutor] intend to offer evidence as to his character?

THE PROSECUTOR: I have no character evidence, Judge.

THE COURT: So-

DEFENSE COUNSEL: That’s fine then.

THE COURT: Those witnesses are not appropriate, all right? Step off and we’ll get the jury up here….

Did the court act properly? See State v. Pak, 787 N.W.2d 623 (Minn.App. 2010); Colin Miller, He’s Not Heavy, He’s My Brother: Court of Appeals of Minnesota Concludes Jurors Would Have Ignored Brother’s Character Testimony In Mercy Rule Appeal, August 26, 2010; http://lawprofessors.typepad.com/evidenceprof/2010/08/mercy-rule--state-v-pak----nw2d------2010-wl-3304693minnapp2010.html.

Hypothetical 5: Christopher Seigfried is charged with first-degree murder based upon the death of Clarence Overlhulser. Overlhulser died after Seigfried swung a homemade cast iron sword, striking Overlhulser on the side of the head with the handle part, cutting four inches deep into the brain. Seigfried claims that he was acting in self-defense after Overlhulser became upset about a game of pool they had played, threatened to kill him, and tackled him. In his defense, Seigfried seeks to have several witnesses testify about their unpleasant and violent prior experiences with Overlhulser. Should this testimony be admitted? See Colin Miller, The Character of the Matter, Take 2: Iowa Judge Precludes Specific Act Character Evidence in Murder Trial, July 8, 2009; http://lawprofessors.typepad.com/evidenceprof/2009/07/character-evidencehttpwwwthehawkeyecomstory-murder-analysis-070409.html.

Hypothetical 6: Ralph Emeron Taken Alive II was charged with violating 18 U.S.C. § 111, which makes it unlawful to assault, resist, or impede a federal officer engaged in his official duties. BIA Officer Yellow alleged that Taken Alive engaged in such behavior when Yellow lawfully arrested him after a bar brawl. Taken Alive, however, contended that he resisted arrest only after Yellow slammed the door of his patrol car on his head and started hitting him with some unknown object. According to Taken Alive, this caused him to pull Yellow’s jacket over his head and run toward his father’s house. In support of his account of the arrest, Taken Alive sought to have two witnesses testify that Yellow had a reputation in the community for being “overly aggressive, quarrelsome, and violent.” The district court precluded these witnesses from rendering this testimony. Did the district court act properly? See United States v. Emeron Taken Alive, 262 F.3d 711 (8th Cir. 2001). What if the defendant also wanted to present evidence of complaints regarding the officer’s violent acts? See Colin Miller, Character Of The Matter: 8th Circuit Case Reveals Rule 405(a) Limitation On Rule 404(a)(2) Evidence, EvidenceProf Blog, July 19, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/07/404a2-us-v-drapeau-f3d-2011-wl-2652317ca8-sd2011.html.

Hypothetical 7: Samuel and Marilyn Manfredi are charged with tax evasion and related crimes, and Samuel is charged with filing false tax returns on behalf of his business, Aquarian & Associates. Before trial, the prosecution files a motion in limine seeking to preclude the defendants from calling character witnesses to offer opinion testimony concerning the defendants’ “honesty, truthfulness, integrity, and generosity.” Should the court grant the motion in limine? See United States v. Manfredi, 2009 WL 3762966 (W.D.Pa. 2009).

Hypothetical 8: Albert Allen is charged with first-degree murder based upon the stabbing death of Devron Labat. Labat, Julie Yourell, and others had come to Allen’s apartment to see Michelle Acquino, whom had had intimate relations with both Allen and Labat. Allen told Labat that Acquino was not there, and, in response, Labat threatened to kill Allen, and Yourell encouraged Labat to “smoke” Allen. Allen closed the door and called 911, but then told the dispatcher that he would handle the situation himself. Allen retrieved a knife, left his apartment, discovered Labat, and started chasing him. Labat eventually stopped running and turned to face Allen, who stabbed Labat to death. At trial, Allen claimed that he was acting in self-defense and presented no character evidence concerning Labat. The prosecution presented evidence that Allen had previously been convicted of assault and had previously assaulted Acquino with a machete. Was this evidence properly admitted? See Allen v. State, 945 P.2d 1233 (Alaska App. 1997). What if the prosecution wanted to have Labat’s co-worker testify that Labat had a reputation in the workplace for being peaceable?

Hypothetical 9: Carl Miller was at the Aristocrat Club when he started talking to some young women. Terry Burleson, a bail bondsman and member of a motorcycle club called “The Humping People,” walked up to Miller, said the women were with him, cursed at Miller, and invited him to go around the corner to “talk.” That talk ended with Miller stabbing Burleson in the chest and head 3 or 4 times. Miller “leaned” into Burleson as he stabbed him, pushing the blade in almost three inches, piercing Burleson’s aorta, vena, cava, and heart, causing his death. Burleson was unarmed and had a blood alcohol concentration of .14. Before the altercation, Miller had never before met Burleson and knew nothing about him. At trial, the court precludes Miller from presenting evidence of Burleson’s prior conviction for misdemeanor assault. Did the court act properly? See Ex Parte Miller, 330 S.W.3d 610 (Tex.Crim.App. 2009); Colin Miller, The Character of the Matter: Texas Opinion Reveals Limits in Character Evidence Criminal Defendants Can Present, EvidenceProf Blog, November 10, 2009; http://lawprofessors.typepad.com/evidenceprof/2009/11/404a2-txex-parte-miller----sw3d------2009-wl-3446468texcrimapp2009.html.

Hypothetical 10: William L. Scholl, a superior court judge, is charged with filing false tax returns and structuring currency transactions in violation of 31 U.S.C. § 5324. According to the prosecution, Scholl engaged in several practices to hide his gambling winnings from the IRS such as making sub-$10,000 deposits into a personal credit line that was his main account for gambling. At trial, Scholl calls Judge Lacagnina, a character witness who testified that Scholl’s “integrity is beyond question.” Thereafter, on cross-examination, the prosecutor asked Judge Lacagnina, “And in giving your testimony here today, had you heard that Judge Scholl, while serving as a judge, had accepted a $10,000 loan from a defense attorney who was appearing before him at the time and had not disclosed to opposing counsel?” Defense counsel objects. Should the court sustain the objection? See United States v. Scholl, 166 F.3d 964 (9th Cir. 1999). If the objection is overruled, and the judge answers, “No,” can the prosecution prove the loan through financial documents?

Hypothetical 11: Larry B. Daniels is charged with deliberate homicide after he kills his adult son, Buddy. At trial, the prosecution calls Daniels’ 13 year-old son, Hagen, as a witness for the prosecution. After Hagen testified on direct, defense counsel cross-examined him, eliciting from Hagen that Buddy had a reputation for being a fighter. Thereafter, defense counsel sought to interrogate Hagen about specific instances of fighting by Hagen. The prosecution objected. Should the court allow the question? See State v. Daniels, 265 P.3d 623 (Mont. 2011); Colin Miller, Crossed Up: Supreme Court Of Montana Finds Trial Court Properly Circumscribed Character Inquiry, January 7, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/01/like-its-federal-counterpartmontana-rule-of-evidence-405aprovides-that-in-all-cases-in-which-evidence-of-character-or-a.html.

Hypothetical 12: Edmundo Blanco is charged with second-degree murder. The prosecution evidence showed that a prostitute purchased some cocaine from Blanco. When the prostitute learned that what she had been given by Blanco was not in fact cocaine, she tried to get her money back and enlisted the help of the victim, her protector or enforcer. The prostitute and the victim became involved in an argument with Blanco which escalated to fisticuffs. The prostitute testified that Blanco tried to land a blow on her, but was stopped by the victim, who then proceeded to batter Blanco with his fists. Blanco then returned 15-20 minutes later and shot the victim in the back in revenge. Blanco, however, claims that the shooting was in self-defense and presents evidence of the victim’s bad character for violence. The prosecution then sought to adduce evidence to rebut this defense claim by showing that Blanco was also a violent man like his victim. Should the court admit this evidence? See People v. Blanco, 13 Cal.Rptr.2d 176 (Cal.App. 1 Dist. 1992).

Hypothetical 13: Duane Bedford performed some construction work for his neighbor, Sam Brown, until a dispute arose between the two men before the job was completed. That dispute escalated when Brown suspected that Bedford smashed his car windows. Brown went to confront Bedford, with that confrontation ending with Bedford shooting Brown three times, causing his death. Bedford subsequently went incognito, leading to a year-long search for him, an appearance on America’s Most Wanted, and, ultimately, his apprehension.

Charged with first-degree murder, Bedford claimed self-defense and specifically that Brown was the first aggressor who came looking for him “with hardness of heart.” In response to this defense, the Commonwealth called Sergeant Sean Butts as a character witness, leading to, inter alia, the following exchange:

[THE COMMONWEALTH]: Do you know [Victim] to be a violent individual?

[SGT. BUTTS]: No.

[THE COMMONWEALTH]: [Why] do you say “no”?

[SGT. BUTTS]: [Victim] was a very soft-spoken, meek person, very subdued. Never really raised his voice around me or in public. There have been some instances at his employment where he could have gotten upset or violent, but he didn’t.

Was this testimony proper? See Commonwealth v. Bedford, 2012 WL 1950152 (Pa.Super. 2012); Colin Miller, Be Aggressive, Take 2: Commonwealth v. Bedford, America’s Most Wanted & Why Rule 404(a)(2)(C) Makes No Sense, EvidenceProf Blog, June 14, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/06/federal-rule-of-evidence-404a2cprovides-that-in-a-homicide-case-the-prosecutor-may-offer-evidence-of-the-alleged-vi.html.

C. Federal Rule of Evidence 405(b) – Character “In Issue”

While Federal Rule of Evidence 405(a) limits parties to using opinion and reputation testimony to prove character on direct examination, Federal Rule of Evidence 405(b) provides that

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Rule of Evidence 405(b) thus continues the common law practice of allowing parties to prove character when it is “in issue,” meaning that it is an essential element of a charge, claim, or defense. And, as the language of the Rule makes clear, when character is “in issue,” it can be proven not only through opinion or reputation testimony but also through specific instances of conduct.

Rule 405(b) applies in a small universe of cases. The most typical Rule 405(b) cases involve issues such as defamation, negligent hiring, entrustment or supervision, and entrapment. See Colin Miller, Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should be Treated Like Criminal Defendants Under the Felony Impeachment Rule, 36 PEPP. L. REV. 997, 1024 (2009).

In a defamation case, a politician might sue a newspaper for defamation, claiming that it published a false article stating that he was an adulterer. In response, the newspaper could claim the absolute defense of truth. In this case, the politician’s character for adultery would be an essential element of the newspaper’s truth defense because the newspaper could not prove its defense without proving that the politician was an adulterer. There would be no other way to prove the truth of the story. Accordingly, under Rule 405(b), the newspaper could present evidence of specific instances of adultery by the politician in addition to opinion and reputation testimony. See, e.g., United States v. Manfredi, 2009 WL 3762966 at *5) (W.D. Pa. 2009) (noting that Rule 405(b) applies in “a defamation case where the plaintiff’s claim is that the defendant’s defamatory statements harmed his reputation for good character”).

Similarly, assume that an injured bus passenger sued a city for negligent hiring after a city bus driver got into an accident while driving drunk. If the passenger’s claim was that the city was negligent in hiring the driver because of his history of DUIs, the driver’s character for drunk driving would be an essential element of the passenger’s claim. The passenger could not prove the city’s negligence without proving the reason for that negligence: hiring a driver with a history of DUIs. For the same reason, if customers sued a store for negligent supervision after a security guard allegedly falsely imprisoned them, evidence of prior acts of job-related misconduct by the guard would be admissible to prove why the store was negligent in not firing or disciplining the guard. See, e.g., Panas v. Harakis, 529 A.2d 976, 989 (N.H. 1987) (finding that under Rule 405(b), customers claiming false imprisonment by a K-Mart guard could present evidence that the guard had previously represented himself as a police officer to a customer to prove negligent supervision).

Finally, if a defendant charged with a crime claims entrapment as a defense, the prosecution’s response to this defense could be that the defendant was predisposed to commit the crime charged. The only way that the prosecution could prove this predisposition would be through presenting evidence of the defendant’s prior, similar crimes, making evidence of those crimes admissible under Rule 405(b). See, e.g., United States v. Manzella, 782 F.2d 533, 546 n.5 (1986).Conversely, despite some possible findings to the contrary, an alleged victim’s character for violence is not an essential element of a defendant’s self-defense claim. For instance, in United States v. Gulley, 526 F.3d 809 (5th Cir. 2008), the defendant was involved in a prison fight that ended after he stabbed the victim 11 times, with one of those stabs piercing the upper lobe of the victim’s left lung and the pericardial sac or his aorta, causing his death. The defendant claimed self-defense and sought to present evidence of the alleged victim’s prior violent acts pursuant to Rule 405(b). The district court, however, excluded this evidence, a decision that the Fifth Circuit affirmed, finding that the victim’s “character was not an essential element of the self-defense in the ‘strict sense’ because a self defense claim may be proven regardless of whether the victim has a violent or passive character.” In other words, the defendant could prove that the alleged victim was the initial aggressor in this case regardless of whether the alleged victim was generally a violent or peaceable person. As noted by the Court of Appeals of Alaska in Allen v. State, 945 P.2d 1233, 1240 (Alaska App. 1997),

The jury could adopt [the defendant]’s self-defense theory even if they concluded that [the victim] was not a characteristically violent man; that is, a characteristically peaceful person may yet be an aggressor. Similarly, the jury could acquit [the defendant] under a self-defense theory even if they concluded that [the victim] was characteristically given to violence; the defense of self-defense is available to all, even to characteristically violent people. By the same token, the jury could reject [the defendant]’s claim of self-defense and convict [the defendant] of murder even if they disbelieved the State’s evidence of [the defendant]’s violent character and instead concluded that [the defendant] was, by nature, a peaceful man.

Hypothetical 14: Anthony Beckett is charged with intentionally and knowingly causing serious bodily injury to a child fourteen years of age or younger. At trial, Beckett raises an insanity defense. Beckett seeks to prove his “character of insanity” through witnesses testifying about specific instances in which Beckett reported God talking to him, reported God writing to him in the snow, and reported or believed that a devil was after him. The trial court deems this evidence inadmissible. Did the court act properly? See Beckett v. State, 2012 WL 955358 (Tex.App.-Dallas 2012); Colin Miller, March Madness: Court of Appeals of Texas Implies Insanity Defense Triggers Rule 405(b), March 22, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/03/similar-to-its-federal-counterparttexas-rule-of-evidence-405provides-that-a-reputation-or-opinionin-all-cases-in-which.html.

Hypothetical 15: Deonte Reed is charged with conspiracy to interfere with commerce by robbery, conspiracy to possess cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and aiding and abetting. Reed raises an entrapment defense, which, when properly raised, requires the prosecution to prove that the defendant was predisposed to commit the crime or that the defendant was not induced by government agents to commit the crime. In determining predisposition, the court considers five factors: (1) the character or reputation of the defendant, including any prior criminal record, (2) the party who made the initial suggestion, (3) whether profit was a motive, (4) evidence of reluctance by the defendant, and (5) the nature of the government’s inducement. At trial, can the prosecution present evidence of prior robberies committed by Reed? See United States v. Reed, 2011 WL 5869494 (9th Cir. 2011); See Colin Miller, Entrapment: 9th Circuit Finds Character An Essential Element Of (Disproving) Entrapment Defense, EvidenceProf Blog, December 23, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/12/405b-us-v-reedslip-copy-2011-wl-5869494ca9-nev2011.html.

Hypothetical 16: Francisco Mendoza-Prado is charged with conspiracy to possess with intent to distribute cocaine, conspiracy to distribute cocaine, and distribution of cocaine. Mendoza-Prado claims an entrapment defense, which the prosecution seeks to rebut through evidence of Mendoza-Prado’s prior convictions for theft, extortion, and aiding a prison escape. Should the court deem evidence of these prior convictions admissible? See United States v. Mendoza-Prado, 314 F.3d 1099 (9th Cir. 2002).

Hypothetical 17: Harold Fish is completing a solo day-hike in the Coconino National Forest when he sees the victim with three unleashed dogs, two of which start barking and running at him at “full gallop.” In response, Fish drops his hiking stick, grabs his 10 millimeter Kimber semiautomaic handgun, and fires a “warning shot” into the ground. In response, the victim starts running toward Fish, his eyes crossed and looking crazy and enraged. Fish yells at the victim to stop or he would shoot, but the victim keeps running at Fish and “doing this weird punching thing.” When the victim is 5-8 feet away from Fish, Fish shoots him three times in the chest, killing him. Fish is charged with second-degree murder and claims self-defense. He seeks to have a witness testify that the witness previously confronted the victim about his dogs, resulting in the victim becoming irrationally aggressive and threatening, getting a wild look in his eyes, and thrashing the air. Should the court deem this testimony admissible? See State v. Fish, 213 P.3d 258 (Ariz.App. Div. 1 2009); Colin Miller, The Character Of The Matter: Court Of Appeals of Arizona Finds That Victim’s Violent Character Is Not An Essential Element Of A Self-Defense Claim, July 7, 2009; http://lawprofessors.typepad.com/evidenceprof/2009/07/az-mercy-rulestate-v-fish----p3d------2009-wl-1872146arizapp-div-12009.html.

Hypothetical 18: Venus Longmire brings an action against Dr. Leon Howard and the Alabama State University, claiming, inter alia, that Dr. Howard attempted to rape her. In response, Dr. Howard files a defamation counterclaim against Longmire, claiming that she “defamed him by accusing him of having attempted to rape her.” In response, Longmire seeks to ask Dr. Howard during trial about other acts of sexual misconduct that Dr. Howard committed while he was employed by Alabama State. How should the court rule? See Longmire v. Alabama State University, 151 F.R.D. 414 (M.D.Ala. 1992).

IV. Character Evidence Motions

Some concise examples of motions connected to evidence sought to be admitted or excluded under the character evidence rules can be found at:

• Dominguez v. Metropolitan Miami Dade County, 2004 WL 2246537 (S.D.Fla. 2004) (Plaintiff’s Answer to Defendant’s Motion in Limine to Exclude Evidence of Other Acts and Incorporated Memorandum of Law) [Rule 405(b)];

• Ryley v. The Sparks Law Firm, P.C., 2011 WL 4668151 (Ariz.Super. 2011) (Plaintiff’s Motion in Limine #3 to Preclude Questions or Answers Relating to Character Trait of Honesty Which is Inadmissible in a Civil Case) [Rule 404(a)];

• John v. Scott, 2008 WL 7313457 (D.N.M. 2008) (Plaintiffs’ Consolidated Response to City Defendants’ Motion for Limine No. II….) [Rule 405(a)].

Evidence:

Plea and Plea-Related Statements

Colin Miller

The John Marshall Law School

CALI eLangdell Press 2013

Plea and Plea-Related Statements

I. The Rule

Federal Rule of Evidence 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

II. Historical Origins

The Federal Rules of Criminal Procedure were adopted in 1946. As originally enacted, and until adoption of the Federal Rules of Evidence, the Federal Rules of Criminal Procedure did not contain a rule rendering evidence of withdrawn guilty pleas, pleas of nolo contendere, and offers to plead guilty and nolo contendere inadmissible. Thereafter, the Federal Rules of Evidence were adopted in 1975; Federal Rule of Evidence 410 was an attempt to codify common law precedent finding that withdrawn guilty pleas, pleas of nolo contendere, and offers to plead guilty and nolo contendere were inadmissible against an accused. The Advisory Committee noted that the rationale behind holding offers to plead guilty and nolo contendere inadmissible was that they lead to “the promotion of disposition of criminal cases by compromise.” In other words, as with civil negotiations under Federal Rule of Evidence 408, the parties to a criminal negotiation are more likely to speak candidly about the strengths and weaknesses of their cases and reach an agreement if they know that their statements will not see the light of day in open court should negotiations break down.

Soon after the enactment of Federal Rule of Evidence 410, Federal Rule of Criminal Procedure 11(e)(6), which contained nearly identical language, was adopted. After later amendments, the former Rule 11(e)(6) is now Federal Rule of Criminal Procedure 11(f), which merely states that “[t]he admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.”

Of all of the Federal Rules of Evidence, Federal Rule of Evidence 410 easily has the most complicated legislative history, and the convoluted process that led to its adoption understandably created confusion for the courts applying it. The foregoing section will explain the 2 main points of confusion created by the Rule and how the Rule was amended in an attempt to clarify it.

III. Prohibited Evidence Under the Rule

A. Rule 410(a)(1) and withdrawn guilty pleas

Federal Rule of Evidence 410(a)(1) deems inadmissible “a guilty plea that was later withdrawn….” There are several circumstances under which a defendant can withdraw a guilty plea. According to Federal Rule of Criminal Procedure 11(d),

A defendant may withdraw a plea of guilty or nolo contendere:

(1) before the court accepts the plea, for any reason or no reason; or

(2) after the court accepts the plea, but before it imposes sentence if:

(A) the court rejects a plea agreement under 11(c)(5); or

(B) the defendant can show a fair and just reason for requesting the withdrawal.

If any of these circumstances apply, and a defendant is allowed to withdraw his guilty plea, Rule 410(a)(1) prohibits the admission of evidence of the withdrawn guilty plea against the defendant. Thus, for instance, in United States v. Newbert, 504 F.3d 180 (1st Cir. 2007), the defendant initially pleaded guilty to possession with the intent to distribute cocaine but was allowed to withdraw his plea after uncovering post-plea evidence of actual innocence: that a family “friend” placed a pill bottle in the defendant’s basement shortly before his arrest. Before the defendant’s ensuing trial, the government moved in limine for an order that the withdrawn guilty plea was admissible, but the district court denied the motion and the First Circuit thereafter affirmed, pursuant to Rule 410(a)(1).

Moreover, courts consistently have found that Rule 410(a)(1) renders inadmissible not only the withdrawn guilty plea itself but also evidence related to the withdrawal. For example, in United States v. Young, 2011 WL 96627 (W.D. Ky. 2011), the defendant initially pleaded guilty but then moved to withdraw the guilty plea under the advisement of new counsel. The court allowed this withdrawal after a hearing during which the defendant submitted an affidavit, testified, and presented a newly discovered letter. When the prosecution thereafter moved to present into evidence the affidavit, testimony, and letter, the court denied the motion, finding that evidence related to a withdrawn guilty plea is inadmissible under Rule 410(a)(1). See Colin Miller, Going Into Withdrawal: Western District of Kentucky Finds Evidence Related To Plea Withdrawal Inadmissible Under Rule 410, EvidenceProf Blog, January 15, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/01/410-us-v-youngslip-copy-2011-wl-96627wdky2011.html.

As will be noted, infra, however, prosecutors are increasingly forcing defendants to sign waivers to get to the plea bargaining table. If the defendant signs a waiver indicating that he waives the protections of Rule 410 by entering and then withdrawing a guilty plea, evidence of the defendant’s withdrawn guilty plea would be admissible despite Rule 410(a)(1) because the defendant’s withdrawal would have triggered the waiver. See, .e.g., United States v. Quiroga, 554 F.3d 1150 (8th Cir. 2009); Colin Miller Withdrawal Symptoms: Eighth Circuit Opinion Raises Question Of Whether Moving To Withdraw A Guilty Plea Breaches A Plea Agreement, EvidenceProf Blog, April 8, 2012; http://lawprofessors.typepad.com/evidenceprof/2009/02/410-us-v-quirog.html.

The Advisory Committee’s Note to Rule 410 indicates that Rule 410(a)(1) is derived from Kercheval v. United States, 274 U.S. 220 (1927), in which the Supreme Court “pointed out that to admit the withdrawn plea would effectively set at naught the allowance of withdrawal and place the accused in a dilemma utterly inconsistent with the decision to award him a trial.”

Hypothetical 1: Robert Thieman is charged with assault in the first degree and related crimes based upon shooting a .22 rifle at the victim’s vehicle after consuming at least 6 beers. Thieman pleaded guilty to the crimes charged after the prosecutor prepared a sentencing assessment report (SAR) in conjunction with the preparation of that plea. Thereafter, the trial judge rejected the plea agreement, and Thieman withdrew his guilty plea and entered a plea of not guilty. At trial, the prosecution called the prosecutor who reached the plea agreement with Thieman, and she testified that when she was interviewing him for the SAR, he admitted to drinking 6-12 beers before the crime charged. Should the prosecutor be allowed to render this testimony consistent with Rule 410? See State v. Thieman, 353 S.W.3d 384 (Mo. App. S.D. 2011); Colin Miller, Withdrawal Symptoms: Court Of Appeals Of Missouri Finds Statements Related To Withdrawn Guilty Plea Inadmissible, EvidenceProf Blog, April 8, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/04/missouri-supreme-court-rule-2402d5states-that-except-as-otherwise-provided-in-this-rule-2402d5-evidence-of-a-plea.html.

Hypothetical 2: William Meece is charged with burglary, robbery, and murder. Meece initially reached a plea deal with the Commonwealth’s Attorney in which he would plead guilty in exchange for the Commonwealth recommending a sentence of life without parole for 25 years. Meece pleaded guilty but then successfully filed a motion to withdraw his guilty plea. At Meece’s ensuing trial, the prosecution played a video recording of a conversation between the Commonwealth’s Attorney and Meece before he pleaded guilty. On the recording, the Commonwealth’s Attorney could be heard saying,

For purposes of both tapes, there is an audiotape being made and a video recording of this, this is made pursuant to your agreement to cooperate fully with us…and it is my understanding that if we have more questions that you will be available as part of your agreement to cooperate with us, to answer any questions we have and that may include some more questions, here in just a little while. After we take a break, you enter your formal plea in open court and then we come back, is that fair?

Was this recording properly played? See Meece v. Commonwealth, 348 S.W.3d 627 (Ky. 2011).

B. Rule 410(a)(2) and nolo contendere pleas

Federal Rule of Evidence 410(a)(2) deems inadmissible “a nolo contendere plea….” The primary difference between a guilty plea and a nolo contendere plea (known in some jurisdictions as a plea of “no contest”) “is that the latter may not be used against the defendant in a civil action based upon the same acts.” Johnson v. State, 6 P.3d 1261, 1262 n.1 (Wyo. 2000). Nolo contendere is a Latin phrase meaning “I will not contest it,” and that is exactly what a defendant does by entering such a plea: He does not admit guilt but instead chooses not to contest the criminal charge and leaves open the possibility of contesting a subsequent civil (or criminal) action against him. For instance, in Patterson v. Odell, 909 S.W.2d 648 (Ark. 1995), the Supreme Court of Arkansas found that the defendants’ pleas of nolo contendere to criminal charges of negligent homicide based upon a car accident were inadmissible in a subsequent civil action for wrongful death based on the same accident. Courts allow these pleas in part to “facilitate plea dispositions by conserving judicial resources that might otherwise be consumed by defendants who went to trial because they feared collateral civil consequences.” Allen v. Martin, 203 P.3d 546, 565 (Colo. App. 2008).

But what if a criminal defendant pleads nolo contendere and then becomes a civil plaintiff instead of a civil defendant? For example, let’s say that a defendant (1) is charged with arson in connection with a fire at his house and pleads nolo contendere; and (2) then turns around and brings a civil action against his insurance company for failing to honor his homeowner’s insurance policy? See Lichon v. American Universal Ins. Co., 433 N.W.2d 394 (Mich.App. 1988). Is evidence of the defendant’s plea inadmissible under Rule 410(a)(2)? This was one of the two points of contention after the initial enactment of the Rule. As originally enacted, Rule 410 stated that

Except as otherwise provided by Act of Congress, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.

In 1979, Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) were amended in part by moving the word “against” from its position in the original Rules to its present position before the words “the defendant.” The Advisory Committee’s Notev explained the amendment as follows:

An ambiguity presently exists because the word “against” may be read as referring either to the kind of proceeding in which the evidence is offered or the purpose for which it is offered. The change makes it clear that the latter construction is correct.

Thus, according to the Committee, the pre-amendment Rules were susceptible to two constructions:

Construction one is that the pre-amendment Federal Rules referred to the kind of proceeding in which a party attempts to admit the nolo contendere plea. Under this reading, then, “in any civil or criminal action, case, or proceeding against the person who made the plea or offer,” that plea is inadmissible. So, if a defendant pleaded nolo contendere to arson, his plea would then be inadmissible against him if: 1) the flames burned a neighbor’s property, and the neighbor civilly sued the defendant for monetary damages, or 2) after the arson trial, an individual burned by the flames succumbed to his injuries and died, and the state charged the defendant with murder and/or manslaughter. Example one is a “civil…proceeding against the person who made the plea,” and example two is a “criminal…proceeding against the person who made the plea….” Conversely, under this construction, if the defendant pleaded nolo contendere to arson, the Federal Rules would not prohibit admission of his nolo contendere plea if he subsequently sued his insurance company for failing to pay on his insurance policy covering the burned property because this subsequent case would not be a “proceeding against the person who made the plea….” Instead, it would be a proceeding for the benefit of the person who made the plea (and against the insurance company).

Construction two is that the pre-amendment Federal Rules referred to the purpose for which the nolo contendere plea was used. Under this construction, the nolo contendere plea would be inadmissible against the person making the plea in all three of the above examples. While the case in the third example would not be a “proceeding against the person making the plea,” the civil defendant (the insurance company) would be seeking to use the plea against the pleading party to prove that he maliciously set the fire, preventing him from recovering on his insurance policy. Because the plea would thus be used against the pleading party, it would be inadmissible.

The 1979 amendment, combined with the Advisory Committee’s Note, seems to make clear that “the latter construction,” i.e., construction two, “is correct.” Until 1988, it appears that all courts adhered to this latter construction and did not allow for a civil defendant to introduce a civil plaintiff’s prior nolo contendere plea into evidence. See Colin Miller, The Best Offense is a Good Defense: Why Criminal Defendants’ Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs, 75 U. CIN. L. REV. 725, 735 (2006).

All that changed, however, with the Sixth Circuit’s opinion in Walker v. Schaeffer, 854 F.2d 138 (6th Cir. 1988). In Schaeffer, two men arrested for disorderly conduct in a McDonald’s parking lot following a high school football game pleaded “no contest.” The men then filed a civil action for false arrest/imprisonment against their arresting officers, who unsuccessfully moved for summary judgment, with the district court deeming the “no contest” pleas inadmissible against the civil plaintiffs. On the officers’ appeal, the Sixth Circuit reversed, finding that

This case does not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant….In this case, on the other hand, the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea for estoppel purposes is not “against the defendant” within the meaning of Fed. R. Evid. 410. This use would be more accurately characterized as “for” the benefit of the “new” civil defendants, the police officers.

Since Schaeffer, courts are split on the issue of whether civil plaintiffs can use Rule 410(a)(2) to preclude the admission of their prior nolo contendere pleas. Courts are also split over whether Rule 410(a)(2) solely precludes the admission of the nolo contendere plea itself or whether it also precludes admission of the resulting conviction. On one side of the issue are courts such as the Ninth Circuit, which held in United States v. Nguyen, 465 F.3d 1128 (9th Cir. 2006), that

Rule 410’s exclusion of a nolo contendere plea would be meaningless if all it took to prove that the defendant committed the crime charged was a certified copy of the inevitable judgment of conviction resulting from the plea. We hold that Rule 410 prohibits the admission of nolo contendere pleas and the convictions resulting from them as proof that the pleader actually committed the underlying crimes charged.

On the other side of the issue are courts like the Fifth Circuit, which found in United States v. Williams, 642 F.2d 136 (5th Cir. 1981), that a conviction based on a nolo contendere plea is as conclusive as a conviction based on a guilty plea or verdict, rendering it admissible notwithstanding the inadmissibility of the underlying plea pursuant to Rule 410(a)(2).

Hypothetical 3: William Moser is charged with indecent assault and related crimes after placing his hand under his 13 year-old step-granddaughter’s shirt and rubbing her breast. While being investigated for this crime, Moser claimed “that he placed his hand on the victim’s chest to determine if she was breathing adequately because the victim admittedly was suffering from a chest cold and had been coughing throughout the night.” In order to refute this claim, the Commonwealth filed a motion in limine seeking to introduce Moser’s earlier nolo contendere plea to indecent assault of his then 17 year-old daughter. Should the court deem evidence of this plea admissible? See Commonwealth v. Moser, 999 A.2d 602 (Pa. Super. 2010).

Hypothetical 4: Curtis Brown is indicted for trafficking in cocaine and three counts of distribution of cocaine. Brown was represented by Jerry Theos and Arthur Howe at trial, which ended with Brown being convicted and sentenced to a total of 40 years’ incarceration. Theos and Howe also represented Brown on direct appeal, which ended with the Supreme Court of South Carolina affirming his conviction. Brown then filed a successful application for post-conviction relief, alleging ineffective assistance of counsel. After relief was granted, Brown entered a “no contest” plea and was sentenced to 8 years’ incarceration. He then brought a legal malpractice claim against Theos and Howe. In response, Theos and Howe seek to admit Brown’s “no contest” plea into evidence to prove that the result at trial would not have been different regardless of the quality of their performance. How should the court rule? See Brown v. Theos, 550 S.E.2d 304 (S.C. 2001).

C. Federal Rule of Evidence 410(a)(3) and statements made during plea proceedings

Federal Rule of Evidence 410(a)(3) deems inadmissible “a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure….” The primary Rule 11 proceeding is the plea colloquy under Federal Rule of Criminal Procedure 11(b)(1), which states that “[b]efore the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court.”

If the defendant makes incriminatory statements during this colloquy, Rule 410(a)(3) deems these statements inadmissible against the defendant in a subsequent criminal or civil proceeding. For instance, in United States v. Price, 2008 WL 4768872 (11th Cir. 2008), the defendant entered into a plea agreement with the prosecution after being charged with crimes related to his alleged participation as the “getaway” car driver in a bank robbery. During the plea colloquy, however, the plea was rejected after the defendant refused to admit that he knowingly participated in the bank robbery although he did admit to driving the car used in the robbery. After the prosecution referenced the defendant’s colloquy statements at trial and the defendant was convicted, he appealed, and the Eleventh Circuit found that his statements were admitted in violation of Rule 410(a)(3).

The language of Rule 410(a)(3) also clearly covers plea allocutions. See United States v. Orlandez-Gamboa, 320 F.3d 328, 331 (2nd Cir. 2003). The right to allocute, to address the court on any subject, prior to the imposition of sentence, is “ancient in law,” United States v. Behrens, 375 U.S. 162, 165 (1963), and currently codified in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii), which provides that “[b]efore imposing sentence, the court must…address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

If during a plea allocution, the defendant makes incriminatory statements, those statements will not be admissible against the defendant in a subsequent criminal or civil proceeding pursuant to Rule 410(a)(3). For instance, in United States v. Udeagu, 110 F.R.D. 172 (E.D.N.Y. 1986), the defendant pleaded guilty to knowing and intentional importation of heroin and possession with intent to distribute and then described his participation in the crime in detail during a plea allocution. See id. The defendant thereafter withdrew his guilty plea and filed a successful motion in limine to preclude the prosecution from presenting his plea allocution statements into evidence pursuant to Rule 410(a)(3). See id.

Hypothetical 5: Volkan Mergen was suspected of committing an arson and related crimes. The AUSA assured Mergen that if he entered a guilty plea in connection with the arson, the AUSA would file a 5K1.1 departure with the court; if not, Mergen could face a sentence of up to 25 years. Mergen agreed to plead guilty, and during the plea allocution, the defendant gave the following testimony under oath: “I traveled with others by car from Staten Island to New Jersey to obtain gasoline to be used to set fire to a house. In New Jersey, we obtained gasoline and then traveled by car to Staten Island. In Staten Island, we drove to a house and one of the individuals set fire to the house using the gasoline. At the time of these events, I was cooperating with the government but I did not have authorization to set fire to a house or to obtain gasoline for that purpose.” Mergen thereafter withdrew his guilty plea. At his ensuing trial, can the prosecution introduce Mergen’s testimony? See United States v. Mergen, 2010 WL 395974 (E.D.N.Y. 2010) See Colin Miller, Plea Plea Me: Plea Allocution & Waiver Triggers Rule 410(a)(3) & 410(b)(1) In Arson Case, EvidenceProf Blog, May 28, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/05/federal-rule-of-evidence-4103provides-that-in-a-civil-or-criminal-case-evidence-of-the-following-is-not-admissible-agains.html.

Hypothetical 6: Alberto Orlandez-Gamboa was arrested in Colombia on charges of kidnapping and murder. Later, the United States indicted Gamboa in connection with crimes that he allegedly committed as the leader of a Colombian drug cartel. A month before the U.S. sought Gamboa’s extradition, Gamboa attended a series of meetings with Colombian prosecutors held pursuant to Colombia’s “anticipated sentencing process.” This process provides criminal defendants with an opportunity for reduced sentences in exchange for acceptance of charges. As a result of these meetings, Gamboa signed eight statements that “include detailed descriptions of Gamboa’s drug trafficking activities.” In Gamboa’s subsequent prosecution in the United States, he claims that his signed statements were the equivalent of a plea allocution, rendering them inadmissible under Rule 410(a)(3). Should the court agree? See United States v. Orlandez-Gamboa, 320 F.3d 328 (2nd Cir. 2003).

D. Rule 410(a)(4) and statements made during plea discussions

Federal Rule of Evidence 410(a)(4) deems inadmissible “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.” Statements made during plea discussions are typically called “proffer statements” because they take place during a proffer session, during which the defendant is proffering information in exchange for a potential plea deal. In some cases, a defendant will make incriminatory statements during formal plea discussions with the prosecutor, and it will be clear that those statements will be inadmissible against him at a subsequent civil or criminal trial. See, e.g., United States v. Stein, 2005 WL 1377851 (E.D. Pa. 2005).

In other cases, it will be unclear whether the defendant made the incriminatory statements during plea discussions. The test that the vast majority of courts apply in determining whether discussions are plea discussions comes from the Fifth Circuit’s opinion in United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978). According to the court in Robertson, in deciding whether the defendant made protected statements during plea discussions,

The trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.

In applying this test, the court’s decision must be “‘driven by the specific facts and circumstances surrounding the interchange at issue.’” United States v. Bridges, 46 F. Supp. 2d 462, 465 (E.D. Va. 1999).

Under the first factor, in some cases, it will be clear through direct or circumstantial evidence that the accused did not have the subjective expectation that he was negotiating a plea. For instance, the accused himself might admit that he knew that he was not negotiating a plea. See, e.g., Owen v. Crosby, 854 So. 2d 182, 189-90 (Fla. 2003) (“Owen acknowledged that he knew if he confessed there was a possibility that he could receive a death sentence because McCoy could not ‘guarantee promises.’”). Or, the accused might make an incriminatory statement without anyone present mentioning anything relating to “pleas, plea settlements, plea negotiations, plea discussions, pleas in abeyance, or dismissed charges.” West Valley City v. Fieeiki, 157 P.3d 802, 808 (Utah 2007).

In closer cases, “[t]he court must appreciate the tenor of the conversation.” Robertson, 582 F.2d at 1367. While courts should not “[r]equire ‘a preamble explicitly demarcating the beginning of plea discussions,’” “when such a preamble [i]s delivered, it cannot be ignored.” Id. Therefore, when the defendant in Calabro v. State, 995 So. 2d 307 (Fla. 2008), made incriminatory statements after stating, “I will like to avoid the trial and have some kind of plea agreement,” the Supreme Court of Florida easily found that the first Robertson factor was satisfied.

While the “magic words” of such a preamble are not required, statements evincing a contrary expectation or other contextual evidence can lead to a court finding that the first Robertson factor is not satisfied. For example, in Fieeiki, the Supreme Court of Utah found that the accused, an officer, did not have the subjective expectation that he was negotiating a plea because, inter alia,

First, the prosecutor had not filed any charges at the time of the September 9, 2003 meeting….Second, Defendant was forewarned of his Miranda rights prior to the meeting, and defense counsel responded, without mention of a negotiation, that such warnings were not necessary because Defendant was not in custody and was a law enforcement officer. Third, Defendant’s statement was recorded, supporting an inference that it might subsequently be used as evidence by the prosecution.

Assuming that the accused can establish that he had the subjective expectation that he was negotiating a plea, the question then becomes whether that expectation was objectively reasonable under the second Robertson factor. Again, this analysis depends upon the facts of a particular case. In United States v. Morgan, 91 F.3d 1193, 1196 (8th Cir. 1996), the Eighth Circuit found that the defendant’s subjective expectation that he was negotiating a plea was not objectively reasonable because

(1) no specific plea offer was made; (2) no deadline to plead was imposed; (3) no offer to drop specific charges was made; (4) no discussion of sentencing guidelines for the purpose of negotiating a plea occurred—only a generalized discussion to give the suspect an accurate appraisal of his situation occurred; and (5) no defense attorney was retained to assist in the formal plea bargaining process.

Conversely, in State v. Nowinski, 102 P.3d 840 (Wash. App. Div. 1 2004), the Court of Appeals of Washington reversed a conviction after concluding that the trial court erred in finding that the defendant’s statements were not protected by Rule 410. The defendant had told detectives “that he wanted to make a deal so he wouldn’t have to go to jail for a long time period,” prompting the detectives to get a prosecutor. Id. The prosecutor then “told the defendant that there would be no deal that night and that he needed to take the information the defendant provided back to consult with his boss before making a charging decision.” Id. The Court of Appeals of Washington found that this was sufficient to satisfy the second Robertson factor because “[t]he prosecutor did not disabuse [the defendant] of his expectation that a deal would be offered, but merely commented that no deal would be made ‘that night.’” Id.

The initial Federal Rule of Evidence 410(a)(4) led to the second point of confusion that had to be resolved. The initial version of Rule 410(a)(4) covered statements made “in connection, and relevant to” an offer to plead, meaning that it could potentially apply not only to discussions between defendants and prosecutors but also to discussions between defendants and police officers, postal inspectors, or other law enforcement personnel. In response, Rule 410(a)(4) was amended so that it now only covers statements made during “plea discussions with an attorney for the prosecuting authority….” Courts however, have found that “[t]his rule can be fairly read to apply to statements made to a government attorney during the course of plea discussions or to an agent whom the government attorney has authorized to engage in plea discussions.” United States v. O’Neal, 992 F.2d 1218 (6th Cir. 1993) (emphasis added). For instance, in Kreps v. Commonwealth, 286 S.W.3d 213 (Ky. 2009), the Supreme Court of Kentucky found that the trial court erred in deeming admissible statements a defendant made to a detective after the detective, while in the presence of the defendant, called the prosecutor and then told the defendant that he was acting with the prosecutor’s authority. Most courts, however, have found that Rule 410(a)(4) does not apply when a defendant incorrectly believes that he is speaking to an agent with authority to negotiate a plea, even if the mistaken belief was reasonable. See, e.g., United States v. Lindsey, 2010 WL 4822939 (D. Minn. 2010).

By modifying the language of Rule 410(a)(4) so that it now covers “plea discussions,” Congress also intended a second effect. According to the Advisory Committee, “by relating the statements to ‘plea discussions’ rather than an ‘offer to plead,’ the amendment ensures ‘that even an attempt to open plea bargaining [is] covered under the same rule of inadmissibility.” Accordingly, in Russell v. State, 614 So. 2d 605 (Fla. App. 1 Dist. 1993), the District Court of Appeal of Florida, First District, found that the trial court erred in deeming admissible a defendant’s letter to a prosecutor in which he offered to plead guilty in exchange for a sentencing concession.

That said, courts vary in have varied in how liberally they construe the phrase “plea discussions.” For instance, in United States v. Penta, 898 F.2d 815 (1st Cir. 1990), the defendant made incriminatory statements to a U.S. Attorney at

a number of conferences, during which time the attorney was openly trying to build a case against defendant’s associates, and, in the attorney’s unexpressed belief, defendant felt, or at least feared, that he, too, would be indicted, and “was trying to get us to agree not to prosecute him, or get us to agree that we would recommend probation or a minimum jail sentence….”

In other words, the defendant was arguably trying to open plea bargaining, but the First Circuit shut that door on appeal, finding that “plea discussions means plea discussions” and that the defendant’s conferences with the U.S. Attorney never reached that level. Id.

Hypothetical 7: Eric Harris was found dead in the back seat of a burned-out automobile. Within days, two detectives identified 17 year-old Mr. Nunes as a suspect. The detectives told Nunes and his father that they would treat fairly the first person to come forward with helpful information. The father hired an attorney, who set up a meeting at the State Attorney’s Office. Prior to taking a statement from Nunes, the assistant state attorney made it clear that there was no plea offer on the table and that no plea deal was expected at that time. He did describe the process by which the State would decide to offer a plea deal. He stressed that before the State could offer any plea, it would have to verify the accuracy of Nunes’s information and submit the case for review by the State Attorney’s homicide committee. With that warning, Nunes gave a lengthy recorded statement in which he implicated himself in the death of Mr. Harris. Nunes was not arrested at that time, and he was allowed to go home with his father. He also agreed to cooperate further with the detectives. Nunes is later charged with murder and related crimes. Should his recorded statement be deemed admissible? See Nunes v. State, 988 So. 2d 636 (Fla. App. 2 Dist. 2008).

Hypothetical 8: Kevin Hare is investigated for wire fraud and related crimes after telling an insurance company operator that the operator could get a license to operate his company in Missouri if he paid bribe money to certain Missouri officials. At an initial meeting, Hare made incriminatory statements to an AUSA, who testified at a suppression hearing that Hare and he had discussed the Sentencing Guidelines somewhat but only in general terms. At Hare’s inquiry, the AUSA informed him that the Guidelines would call for definite jail time, absent cooperation due to the amount of money involved. Specifically, the AUSA “told him that a 5k motion would reduce his exposure under the guidelines” but further testified that they “did not discuss [the] specifics of where the guidelines came out.” The AUSA did not discuss specific charges with Hare and did not offer any plea bargain. After this initial meeting, Hare continued to cooperate with the government and eventually entered into a plea bargain. Hare was later apprehended as he attempted to flee to Canada. At trial, the prosecution wants to introduce Hare’s statements from the initial meeting. Should the statements be deemed admissible? See United States v. Hare, 49 F.3d 447 (8th Cir. 1995).

Hypothetical 9: Jason Clay is charged with possession with intent to deliver less than 50 grams of cocaine. While incarcerated, Clay wrote a letter to the prosecutor, which stated:

Mr. O’hair,

My name is Jason Clay. I am writing this letter in concern of myself, and helping you and your team out.

I am lock up [sic] for controlled substance-Delivery/manufacture of Cocaine, and I have names of people who supplies [sic] the cocaine and I want to make a deal. [redacted portion]

I am willing to help you out I know where these people stay, all I’m asking for is a chance, I realize I have a mistake [sic] and I want to correct it.

Thank you for taking the time to read this letter.

Should the court deem the letter admissible? See People v. Clay, 2002 WL 1065280 (Mich. App. 2002).

IV. Permissible Evidence Under the Rule

A. Rule 410(b)(1) and the rule of completeness

Federal Rule of Evidence 410(b)(1) contains an exception allowing for the admission of evidence of a statement made under Rule 410(a)(3) or Rule 410(a)(4) “in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together…” As noted, the language of Federal Rule of Evidence 410(a) only precludes the admission of evidence of certain pleas and plea-related statements “against the defendant who made the plea or participated in the plea discussions….” Accordingly, under some circumstances, some courts allow defendants to present evidence of these pleas and plea-related statements. The Advisory Committee gave the following example to justify the exception: “[I]f a defendant upon a motion to dismiss a prosecution on some ground were able to admit certain statements made in aborted plea discussions in his favor, then other relevant statements made in the same plea discussions should be admissible against the defendant in the interest of determining the truth of the matter at issue.”

For instance, in United States v. Jenkins, 2007 WL 3355601 (E.D. Pa. 2007), the defendant impeached a witness for the prosecution by presenting evidence that the defendant implicated the witness during plea bargaining, giving the witness a motive to testify against him. Accordingly, under Rule 410(b)(1), the prosecution was entitled to respond by presenting other statements by the defendant during plea bargaining that incriminated the defendant in the crime charged. See id. As the Advisory Committee explained, the exception is modeled after the “rule of completeness” contained in Federal Rule of Evidence 106 “as the considerations involved are very similar.”

What this means is that even if a defendant references a protected plea or plea-related statement, the reference does not trigger the exception in Rule 410(b)(1) unless fairness requires a more complete accounting of the plea or statement because the partial accounting created a “false impression.” Abdygapparova v. State, 243 S.W.3d 191, 205 (Tex. App.-San Antonio 2007). So, for example, in Abdygapparova, the prosecutor asked the defendant whether her statement to police was her complete recollection of the events giving rise to the charges against her, prompting the defendant to respond that some details were left out and that she had mentioned this during plea bargaining. See id. The prosecutor than followed up by asking the defendant about several incriminatory statements that she made during plea bargaining. See id. On appeal, the Court of Appeals of Texas, San Antonio, found that these follow-up questions should not have been asked because the defendant mentioned plea bargaining but did not leave “a false impression with the jury.” Id.

Finally, it should be noted that some courts have found that Federal Rule of Evidence 410(a) also prohibits defendants from presenting evidence of protected pleas and plea-related statements. For instance, in Pearson v. State, 818 P.2d 581, 584 (Utah App. 1991), the Court of Appeals of Utah cited to several federal and state court opinions to conclude that “[f]airness dictates that the restriction should apply to both parties in the negotiations.” In these jurisdictions, then, the exception in Rule 410(b)(1) has been rendered a nullity because neither side will be able to present evidence concerning protected pleas and plea-related statements, meaning that the exception could never apply unless evidence is erroneously admitted.

Hypothetical 10: Delmus Thompson is charged with two counts of possession of cocaine with intent to sell and deliver and two counts of sale and delivery of cocaine. On direct examination, Thompson testifies that during plea bargaining he rejected the prosecution’s offer of a guilty plea in exchange for a recommended 17 month sentence and that he would have refused an offer of 12 months as well, knowing that he risked 7 years’ incarceration if he were found guilty at trial. On cross-examination, the prosecution asks Thompson about an officer’s promise to help him get probation but how that promise fell apart during plea bargaining because Thompson’s criminal record was too extensive to permit probation under the law. Was this question proper? See State v. Thompson, 543 S.E.2d 160 (N.C. App. 2001).

Hypothetical 11: Shelby Neugebauer is convicted of involuntary manslaughter after killing the victim while driving drunk. During sentencing, Neugebauer testifies that since the accident he had volunteered at the Ronald McDonald House, entered an outpatient program to manage his alcohol abuse, and participated in two therapy groups to deal with his grief. In response, the prosecutor asked Neugebauer a question that sought to elicit from Neugebauer that defense counsel advised him during plea bargaining to participate in charitable work and counseling to improve his chances for probation and not for the philanthropic and socially redeeming reasons usually associated with such activities. Was the question proper? See Neugebauer v. State, 974 S.W.2d 374 (Tex. App.-Amarillo 1998).

B. Rule 410(b)(2) and perjury/false statement proceedings

Federal Rule of Evidence 410(b)(2) contains an exception allowing for the admission of evidence of a statement made under Rule 410(a)(3) or Rule 410(a)(4) “in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.” So, for instance, assume that a defendant reaches a plea bargain with the prosecution and then admits to the crime and offers a guilty plea under oath. If the judge rejects the plea bargain and the defendant later testifies at trial that he did not commit the subject crime, his admissions under oath in connection with the failed plea bargain would be admissible if the prosecution later brought a perjury action against him. See State v. Rodriguez, 656 A.2d 53 (280 N.J. Super. A.D. 1995). An example of a criminal proceeding for a false statement that would also trigger the exception contained in Rule 410(b)(2) can be found in United States v. Endo, 635 F.2d 321 (4th Cir. 1980), in which the defendant was prosecuted for making a false declaration before a grand jury or court in violation of 18 USC § 1623. According to the Advisory Committee, this exception exists so that a defendant cannot make statements under oath and then “be able to contradict his previous statements and thereby lie with impunity.”

Hypothetical 12: Lorraine Gleason is charged with aiding in the preparation of fraudulent income tax returns and related crimes. Gleason was a member of The Universal Life Church (TULC), which issued “mail order church charters,” through which as few as three people could be designated as a congregation. Gleason allegedly assisted such congregations by telling members that they could donate to TULC earnings from their regular occupations, getting a charitable contributions deduction, and then withdraw the money from the church, tax-free, for the upkeep of their “churches” (their homes). Gleason pleads guilty and admits under oath that she knows that the receipts attached to a tax return were fraudulent. Gleason later withdraws her guilty plea, and the prosecutor indicates that if Gleason testifies at trial, he will question her about the tax return. The prosecutor also informs Gleason that if she states that she did not know that the return was fraudulent, he will be compelled to seek a perjury indictment. Gleason claims that this threat denied her the constitutional right to testify. Is she correct? See United States v. Gleason, 766 F.2d 1239 (8th Cir. 1985).

V. Waivers

The most important development under Federal Rule of Evidence 410 since its adoption is the Supreme Court approving the practice of prosecutors forcing defendant to waive some or all of their rights under the Rule to get to the plea bargaining table.

United States v. Mezzanatto, 513 U.S. 196 (1995)

Justice Thomas delivered the opinion of the Court.

Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) provide that statements made in the course of plea discussions between a criminal defendant and a prosecutor are inadmissible against the defendant. The court below held that these exclusionary provisions may not be waived by the defendant. We granted certiorari to resolve a conflict among the Courts of Appeals, and we now reverse.

I

On August 1, 1991, San Diego Narcotics Task Force agents arrested Gordon Shuster after discovering a methamphetamine laboratory at his residence in Rainbow, California. Shuster agreed to cooperate with the agents, and a few hours after his arrest he placed a call to respondent’s pager. When respondent returned the call, Shuster told him that a friend wanted to purchase a pound of methamphetamine for $13,000. Shuster arranged to meet respondent later that day.

At their meeting, Shuster introduced an undercover officer as his “friend.” The officer asked respondent if he had “brought the stuff with him,” and respondent told the officer it was in his car. The two proceeded to the car, where respondent produced a brown paper package containing approximately one pound of methamphetamine. Respondent then presented a glass pipe (later found to contain methamphetamine residue) and asked the officer if he wanted to take a “hit.” The officer indicated that he would first get respondent the money; as the officer left the car, he gave a prearranged arrest signal. Respondent was arrested and charged with possession of methamphetamine with intent to distribute, in violation of 84 Stat. 1260, as amended, 21 U.S.C. § 841(a)(1).

On October 17, 1991, respondent and his attorney asked to meet with the prosecutor to discuss the possibility of cooperating with the Government. The prosecutor agreed to meet later that day. At the beginning of the meeting, the prosecutor informed respondent that he had no obligation to talk, but that if he wanted to cooperate he would have to be completely truthful. As a condition to proceeding with the discussion, the prosecutor indicated that respondent would have to agree that any statements he made during the meeting could be used to impeach any contradictory testimony he might give at trial if the case proceeded that far. Respondent conferred with his counsel and agreed to proceed under the prosecutor’s terms.

Respondent then admitted knowing that the package he had attempted to sell to the undercover police officer contained methamphetamine, but insisted that he had dealt only in “ounce” quantities of methamphetamine prior to his arrest. Initially, respondent also claimed that he was acting merely as a broker for Shuster and did not know that Shuster was manufacturing methamphetamine at his residence, but he later conceded that he knew about Shuster’s laboratory. Respondent attempted to minimize his role in Shuster’s operation by claiming that he had not visited Shuster’s residence for at least a week before his arrest. At this point, the Government confronted respondent with surveillance evidence showing that his car was on Shuster’s property the day before the arrest, and terminated the meeting on the basis of respondent’s failure to provide completely truthful information.

Respondent eventually was tried on the methamphetamine charge and took the stand in his own defense. He maintained that he was not involved in methamphetamine trafficking and that he had thought Shuster used his home laboratory to manufacture plastic explosives for the CIA. He also denied knowing that the package he delivered to the undercover officer contained methamphetamine. Over defense counsel’s objection, the prosecutor cross-examined respondent about the inconsistent statements he had made during the October 17 meeting. Respondent denied having made certain statements, and the prosecutor called one of the agents who had attended the meeting to recount the prior statements. The jury found respondent guilty, and the District Court sentenced him to 170 months in prison.

A panel of the Ninth Circuit reversed, over the dissent of Chief Judge Wallace. 998 F.2d 1452 (1993). The Ninth Circuit held that respondent’s agreement to allow admission of his plea statements for purposes of impeachment was unenforceable and that the District Court therefore erred in admitting the statements for that purpose. We granted certiorari because the Ninth Circuit’s decision conflicts with the Seventh Circuit’s decision in United States v. Dortch, 5 F.3d 1056, 1067-1068 (1993).

II

The Ninth Circuit noted that these Rules [410 and 11(e)(6)] are subject to only two express exceptions, neither of which says anything about waiver, and thus concluded that Congress must have meant to preclude waiver agreements such as respondent’s….

The Ninth Circuit’s analysis is directly contrary to the approach we have taken in the context of a broad array of constitutional and statutory provisions. Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption….

Our cases interpreting the Federal Rules of Criminal Procedure are consistent with this approach. The provisions of those Rules are presumptively waivable….

The presumption of waivability has found specific application in the context of evidentiary rules. Absent some “overriding procedural consideration that prevents enforcement of the contract,” courts have held that agreements to waive evidentiary rules are generally enforceable even over a party’s subsequent objections….Courts have “liberally enforced” agreements to waive various exclusionary rules of evidence….Thus, at the time of the adoption of the Federal Rules of Evidence, agreements as to the admissibility of documentary evidence were routinely enforced and held to preclude subsequent objections as to authenticity….And although hearsay is inadmissible except under certain specific exceptions, we have held that agreements to waive hearsay objections are enforceable….

Indeed, evidentiary stipulations are a valuable and integral part of everyday trial practice. Prior to trial, parties often agree in writing to the admission of otherwise objectionable evidence, either in exchange for stipulations from opposing counsel or for other strategic purposes. Both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure appear to contemplate that the parties will enter into evidentiary agreements during a pretrial conference. See Fed.Rule Civ.Proc. 16(c)(3); Fed.Rule Crim.Proc. 17.1. During the course of trial, parties frequently decide to waive evidentiary objections, and such tactics are routinely honored by trial judges….

III

Because the plea-statement Rules were enacted against a background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties, we will not interpret Congress’ silence as an implicit rejection of waivability. Respondent bears the responsibility of identifying some affirmative basis for concluding that the plea-statement Rules depart from the presumption of waivability.

Respondent offers three potential bases for concluding that the Rules should be placed beyond the control of the parties. We find none of them persuasive.

A

Respondent first suggests that the plea-statement Rules establish a “guarantee [to] fair procedure” that cannot be waived. Brief for Respondent 12. We agree with respondent’s basic premise: There may be some evidentiary provisions that are so fundamental to the reliability of the factfinding process that they may never be waived without irreparably “discredit[ing] the federal courts.” See…United States v. Josefik, 753 F.2d 585, 588 (CA7 1985) (“No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept”). But enforcement of agreements like respondent’s plainly will not have that effect. The admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts.…Under any view of the evidence, the defendant has made a false statement, either to the prosecutor during the plea discussion or to the jury at trial; making the jury aware of the inconsistency will tend to increase the reliability of the verdict without risking institutional harm to the federal courts.

Respondent nevertheless urges that the plea-statement Rules are analogous to Federal Rule of Criminal Procedure 24(c), which provides that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” Justice KENNEDY’s concurrence in United States v. Olano, 507 U.S. 725, 741…(1993), suggested that the guarantees of Rule 24(c) may never be waived by an agreement to permit alternate jurors to sit in on jury deliberations, and respondent asks us to extend that logic to the plea-statement Rules. But even if we assume that the requirements of Rule 24(c) are “the product of a judgment that our jury system should be given a stable and constant structure, one that cannot be varied by a court with or without the consent of the parties,”…the plea-statement Rules plainly do not satisfy this standard. Rules 410 and 11(e)(6) “creat[e], in effect, a privilege of the defendant,”…and, like other evidentiary privileges, this one may be waived or varied at the defendant’s request. The Rules provide that statements made in the course of plea discussions are inadmissible “against” the defendant, and thus leave open the possibility that a defendant may offer such statements into evidence for his own tactical advantage. Indeed, the Rules contemplate this result in permitting admission of statements made “in any proceeding wherein another statement made in the course of the same … plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.”…Thus, the plea-statement Rules expressly contemplate a degree of party control that is consonant with the background presumption of waivability.

B

Respondent also contends that waiver is fundamentally inconsistent with the Rules’ goal of encouraging voluntary settlement….Because the prospect of waiver may make defendants “think twice” before entering into any plea negotiation, respondent suggests that enforcement of waiver agreements acts “as a brake, not as a facilitator, to the plea-bargain process.”…

We need not decide whether and under what circumstances substantial “public policy” interests may permit the inference that Congress intended to override the presumption of waivability, for in this case there is no basis for concluding that waiver will interfere with the Rules’ goal of encouraging plea bargaining. The court below focused entirely on the defendant’s incentives and completely ignored the other essential party to the transaction: the prosecutor. Thus, although the availability of waiver may discourage some defendants from negotiating, it is also true that prosecutors may be unwilling to proceed without it.

Prosecutors may be especially reluctant to negotiate without a waiver agreement during the early stages of a criminal investigation, when prosecutors are searching for leads and suspects may be willing to offer information in exchange for some form of immunity or leniency in sentencing. In this “cooperation” context, prosecutors face “painfully delicate” choices as to “whether to proceed and prosecute those suspects against whom the already produced evidence makes a case or whether to extend leniency or full immunity to some suspects in order to procure testimony against other, more dangerous suspects against whom existing evidence is flimsy or nonexistent.”…Because prosecutors have limited resources and must be able to answer “sensitive questions about the credibility of the testimony” they receive before entering into any sort of cooperation agreement,…prosecutors may condition cooperation discussions on an agreement that the testimony provided may be used for impeachment purposes… If prosecutors were precluded from securing such agreements, they might well decline to enter into cooperation discussions in the first place and might never take this potential first step toward a plea bargain.

Indeed, as a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips. To use the Ninth Circuit’s metaphor, if the prosecutor is interested in “buying” the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains. A defendant can “maximize” what he has to “sell” only if he is permitted to offer what the prosecutor is most interested in buying. And while it is certainly true that prosecutors often need help from the small fish in a conspiracy in order to catch the big ones, that is no reason to preclude waiver altogether. If prosecutors decide that certain crucial information will be gained only by preserving the inadmissibility of plea statements, they will agree to leave intact the exclusionary provisions of the plea-statement Rules.

In sum, there is no reason to believe that allowing negotiation as to waiver of the plea-statement Rules will bring plea bargaining to a grinding halt; it may well have the opposite effect.[FN6] Respondent’s unfounded policy argument thus provides no basis for concluding that Congress intended to prevent criminal defendants from offering to waive the plea-statement Rules during plea negotiation.

[FN6] Respondent has failed to offer any empirical support for his apocalyptic predictions, and data compiled by the Administrative Office of the United States Courts appear to contradict them. Prior to the Ninth Circuit’s decision in this case (when, according to the Solicitor General, federal prosecutors in that Circuit used waiver agreements like the one invalidated by the court below, see Pet. for Cert. 10–11), approximately 92.2% of the convictions in the Ninth Circuit were secured through pleas of guilty or nolo contendere….During that same period, about 88.8% of the convictions in all federal courts were secured by voluntary pleas….

C

Finally, respondent contends that waiver agreements should be forbidden because they invite prosecutorial overreaching and abuse. Respondent asserts that there is a “gross disparity” in the relative bargaining power of the parties to a plea agreement and suggests that a waiver agreement is “inherently unfair and coercive.”…Because the prosecutor retains the discretion to “reward defendants for their substantial assistance” under the Sentencing Guidelines, respondent argues that defendants face an “‘incredible dilemma’” when they are asked to accept waiver as the price of entering plea discussions…

The dilemma flagged by respondent is indistinguishable from any of a number of difficult choices that criminal defendants face every day. The plea bargaining process necessarily exerts pressure on defendants to plead guilty and to abandon a series of fundamental rights, but we have repeatedly held that the government “may encourage a guilty plea by offering substantial benefits in return for the plea.”…“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’—and permissible—‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’”….

The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether. “Rather, tradition and experience justify our belief that the great majority of prosecutors will be faithful to their duty.”…Thus, although some waiver agreements “may not be the product of an informed and voluntary decision,” this possibility “does not justify invalidating all such agreements.”…Instead, the appropriate response to respondent’s predictions of abuse is to permit case-by-case inquiries into whether waiver agreements are the product of fraud or coercion. We hold that absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.

IV

Respondent conferred with his lawyer after the prosecutor proposed waiver as a condition of proceeding with the plea discussion, and he has never complained that he entered into the waiver agreement at issue unknowingly or involuntarily. The Ninth Circuit’s decision was based on its per se rejection of waiver of the plea-statement Rules. Accordingly, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Ginsburg, with whom Justice O’Connor and Justice Breyer join, concurring.

The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress’ intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant’s incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question.

Justice Souter, with whom Justice Stevens joins, dissenting.

Congress probably made two assumptions when it adopted the Rules: pleas and plea discussions are to be encouraged, and conditions of unrestrained candor are the most effective means of encouragement. The provisions protecting a defendant against use of statements made in his plea bargaining are thus meant to create something more than a personal right shielding an individual from his imprudence. Rather, the Rules are meant to serve the interest of the federal judicial system (whose resources are controlled by Congress), by creating the conditions understood by Congress to be effective in promoting reasonable plea agreements. Whether Congress was right or wrong that unrestrained candor is necessary to promote a reasonable number of plea agreements, Congress assumed that there was such a need and meant to satisfy it by these Rules. Since the zone of unrestrained candor is diminished whenever a defendant has to stop to think about the amount of trouble his openness may cause him if the plea negotiations fall through, Congress must have understood that the judicial system’s interest in candid plea discussions would be threatened by recognizing waivers under Rules 410 and 11(e)(6)….There is, indeed, no indication that Congress intended merely a regime of such limited openness as might happen to survive market forces sufficient to supplant a default rule of inadmissibility. Nor may Congress be presumed to have intended to permit waivers that would undermine the stated policy of its own Rules….

The unlikelihood that Congress intended the modest default rule that the majority sees in Rules 11(e)(6) and 410 looms all the larger when the consequences of the majority position are pursued. The first consequence is that the Rules will probably not even function as default rules, for there is little chance that they will be applied at all. Already, standard forms indicate that many federal prosecutors routinely require waiver of Rule 410 and 11(e)(6) rights before a prosecutor is willing to enter into plea discussions….As the Government conceded during oral argument, defendants are generally in no position to challenge demands for these waivers, and the use of waiver provisions as contracts of adhesion has become accepted practice. Today’s decision can only speed the heretofore illegitimate process by which the exception has been swallowing the Rules….Accordingly, it is probably only a matter of time until the Rules are dead letters.

The second consequence likely to emerge from today’s decision is the practical certainty that the waiver demanded will in time come to function as a waiver of trial itself. It is true that many (if not all) of the waiver forms now employed go only to admissibility for impeachment. But although the erosion of the Rules has begun with this trickle, the majority’s reasoning will provide no principled limit to it. The Rules draw no distinction between use of a statement for impeachment and use in the Government’s case in chief. If objection can be waived for impeachment use, it can be waived for use as affirmative evidence, and if the Government can effectively demand waiver in the former instance, there is no reason to believe it will not do so just as successfully in the latter. When it does, there is nothing this Court will legitimately be able to do about it. The Court is construing a congressional Rule on the theory that Congress meant to permit its waiver. Once that point is passed, as it is today, there is no legitimate limit on admissibility of a defendant’s plea negotiation statements beyond what the Constitution may independently impose or the traffic may bear. Just what the traffic may bear is an open question, but what cannot be denied is that the majority opinion sanctions a demand for waiver of such scope that a defendant who gives it will be unable even to acknowledge his desire to negotiate a guilty plea without furnishing admissible evidence against himself then and there. In such cases, the possibility of trial if no agreement is reached will be reduced to fantasy. The only defendant who will not damage himself by even the most restrained candor will be the one so desperate that he might as well walk into court and enter a naked guilty plea. It defies reason to think that Congress intended to invite such a result, when it adopted a Rule said to promote candid discussion in the interest of encouraging compromise.

As indicated by Justice Ginsburg’s concurring opinion, the Supreme Court only approved of the use of “impeachment waivers” in Mezzanatto. An impeachment waiver typically says something like: If a defendant engages in plea discussions and a plea agreement is not reached or the plea is withdrawn, any statement that the defendant makes during plea discussions can “be used for impeachment purposes if the defendant testifies in any way inconsistent with the…statement.” United States v.Tamez-Gonzalez 103 F.3d 126 (5th Cir. 1996).

In other words, for an impeachment waiver to be triggered, the defendant must both (1) testify at trial; and (2) provide testimony that is inconsistent with his statement(s) during plea discussions. In the event that both of these conditions are satisfied, the prosecution can only use the statement(s) during plea discussions to impeach the defendant (i.e., to argue that the contradiction reveals the defendant to be untrustworthy as a witness) and not to prove the truth of the matter asserted in the prior statement(s). For example, in Mezzanatto, when the defendant testified at trial that he did not know that the package he delivered to the undercover officer contained methamphetamines, the impeachment waiver he had signed allowed the prosecution to cross-examine him regarding his statement during plea discussions in which he admitted knowing that the package contained methamphetamines. But this cross-examination could only be used to show that the contradiction rendered the defendant untrustworthy as a witness (impeachment) and could not be used to prove that the defendant actually knew that the package contained methamphetamines.

In finding that the Court in Mezzanatto only approved of impeachment waivers, Justice Ginsberg noted that the Court was not addressing the issue of whether a defendant can be forced to sign “case-in-chief waiver” to get to the plea bargaining table. A case-in-chief waiver typically says something along the lines of:

Defendant…agrees that once he and his counsel have executed this…Voluntary Confession and Plea Agreement, the State can seek to admit it as evidence against him in any future criminal prosecution, and that he and his counsel will not interpose any legal objection to its admission into evidence. United States v. Mitchell, 2010 WL 5490771 (E.D. Tex. 2010).

In other words, when a defendant signs a case-in-chief waiver, the prosecution can introduce the defendant’s statements made during plea discussions regardless of whether the defendant testifies or presents any other evidence that contradicts his prior statements. Practically speaking, this means that at trial the prosecution can introduce the defendant’s statements during its case-in-chief, hence the name. And, unlike with an impeachment waiver, the prosecution can use the statements to prove the truth of the matter asserted.

For instance, in United States v. Young, 223 F.3d 905 (8th Cir. 2000), a defendant charged with federal drug trafficking crimes executed an affidavit admitting each element of the crimes charged during plea discussions. When the defendant later breached his plea agreement, the prosecution was allowed to admit the affidavit during its case-in-chief to prove the defendant’s guilt for each of the crimes charged because he had signed a case-in-chief waiver. To date, five federal circuits have addressed the constitutionality of case-in-chief waivers,[5] and each of these circuits – the 4th, 5th, 8th, 10th, and D.C. Circuits – has found the waivers to be valid. See Colin Miller, The Case-In-Chief Waiver, Take 2: 4th Circuit Becomes 5th Circuit Court To Approve Case-In-Chief Waivers, EvidenceProf Blog, December 5, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/12/in-relevant-partfederal-rule-of-evidence-410provides-that-in-a-civil-or-criminal-case-evidence-of-the-following-is-not-a.html.

While the 2nd, 3rd, 6th, 7th, 9th, and 11th Circuits have not addressed the constitutionality of case-in-chief waivers, “each of these circuits has approved use of rebuttal waivers.” Colin Miller, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains, 59 U KAN. L. REV. 407, 431 (2011). A rebuttal waiver typically says something along the lines of

[T]he office may use any statements made by [the defendant]…as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by on or behalf of [the defendant] at any stage of a criminal prosecution.

In other words, when a defendant signs a rebuttal waiver, the prosecution can introduce the defendant’s statements made during plea discussions only if the defendant directly or indirectly contradicts those statements at trial. Unlike with an impeachment waiver, that contradiction does not need to consist of the defendant’s testimony. Instead, at trial, the defendant can contradict his statements made during plea discussions through his counsel’s opening statement, exhibits, the testimony of defense witnesses, and even statements elicited from witnesses for the prosecution on cross-examination.

As an example, in United States v. Roberts, 660 F.3d 149 (2nd Cir. 2011), the defendant was charged with crimes connected with a conspiracy to import cocaine while he worked for American Airlines at John F. Kennedy International Airport. He thereafter signed a waiver, permitting the government to use statements made pursuant to the agreement as substantive evidence to “rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [the defendant] at any stage of a criminal prosecution.” Id. During plea discussions, the defendant thereafter admitted that he was present during the unloading of a November 5th flight from Barbados in which the cocaine was discovered. Id. At trial, defense counsel introduced as an exhibit the defendant’s swipe-card records, which showed that he “did not swipe into work until November 6th at three minutes after midnight.” Id. The Second Circuit found that this exhibit rebutted the defendant’s statement during plea discussions and allowed the prosecution to present it into evidence. Id. And, unlike under impeachment waivers, the statements were admissible as substantive evidence to prove the truth of the matter asserted: that the defendant was actually present for the unloading of the flight. Id. See Colin Miller, In Rebuttal: 2nd Circuit Finds Rebuttal Waiver Triggered in American Airlines/Cocaine Case, EvidenceProf Blog, October 4, 2011, http://lawprofessors.typepad.com/evidenceprof/2011/10/410-us-v-roberts-f3d-2011-wl-4489813ca2-ny2011.html.

Prosecutors now “routinely seek to avoid the…burdens and complications [of Rule 410] by demanding that a defendant” sign one of these three types of waivers. United States v. Rasco, 262 F.R.D. 682, 690 (S.D. Ga. 2009).

Hypothetical 13: Roger Rebbe, an accountant, is suspected of preparing false tax returns. Specifically, the prosecution believes that Rebbe told the CEO for Sherman Oaks Tree Service (SOTS) to create a Blue Account and a Green Account. All SOTS income would go into the Blue Account, but only some of that income would be placed in the Green Account and reported as income. Rebbe and his attorney meet with government agents, who inform them that they will not engage in plea discussions unless they both sign a waiver, which states that

the government may use…statements made by you or your client at the meeting and all evidence obtained directly or indirectly from those statements for the purposes of cross-examination should your client testify, or to rebut any evidence, argument or representations offered by or on behalf of your client in connection with the trial.

Rebbe and his attorney sign the waiver, and Rebbe admits that he told the CEO to create the Blue Account. A plea agreement is not reached, and the case proceeds to trial. After the government rests its case, Rebbe requests an advisory opinion “as to whether the admissibility of [his] proffer statements had been triggered.” The district court refuses to rule on the issue, and Rebbe does not testify. He does, however, call witnesses to testify that Rebbe possessed no knowledge about the Blue Account. The court thereafter allows the prosecution to present Rebbe’s admission into evidence. After he is convicted, Rebbe appeals, claiming that “his proffer statements were admissible only to impeach him should he testify at trial….” Is he correct? See United States v. Rebbe, 314 F.3d 402 (9th Cir. 2002).

Hypothetical 14: Vince “Hot Rod” Morris and Paul “Paulie” Hysell, members of the Pagans Motorcycle Club, rob a FDIC insured bank. Morris agrees to turn State’s evidence, with word getting back to Michael Stevens, a correctional officer at Morris’ prison and the brother of a member of a “support club” for the Pagans. Stevens says that he “love[s] Pauley” and that “a snitch is the worst thing in the world.” He also allegedly gives cigarettes to an inmate in exchange for the inmate threatening Morris. Stevens is indicted for conspiracy to retaliate against a person cooperating with law enforcement. As part of plea discussions, Stevens signs a stipulation of facts and a waiver stating

Mr. Stevens agrees that if he withdraws from this agreement, or this agreement is voided as a result of a breach of its terms by Mr. Stevens, and he is subsequently tried on any of the charges in the superseding indictment, the United States may use and introduce the “Stipulation of Facts” in the United States case-in-chief, in cross-examination of Mr. Stevens or of any of his witnesses, or in rebuttal of any testimony introduced by Mr. Stevens or on his behalf.

After Stevens later refuses to plead guilty, his case proceeds to trial, and the prosecution seeks to admit the stipulation of facts as part of its case-in-chief. Should the court deem it admissible? See United States v. Stevens, 455 Fed. Appx. 343 (4th Cir. 2011); See Colin Miller, The Case-In-Chief Waiver, Take 2: 4th Circuit Becomes 5th Circuit Court To Approve Case-In-Chief Waivers, EvidenceProf Blog, December 5, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/12/in-relevant-partfederal-rule-of-evidence-410provides-that-in-a-civil-or-criminal-case-evidence-of-the-following-is-not-a.html.

Hypothetical 15: Robert Krilich is charged with fraud and conspiracy to violate RICO after allegedly palming a golf ball and pretending to pull it out of the ninth hole during a hole-in-one contest after the mayor’s son hit a shot off of the ninth tee. According to the prosecution, Krilich pulled the ball trick to curry favor with the mayor, whose support was needed for a bond offering to finance an apartment complex to be built by Krilich. Before plea discussions, the prosecutor gets Krilich to sign a statement saying:

[S]hould [Krilich] subsequently testify contrary to the substance of the proffer or otherwise present a position inconsistent with the proffer, nothing shall prevent the government from using the substance of the proffer at sentencing for any purpose, at trial for impeachment or in rebuttal testimony….

During plea discussions, Krilich admits, “I faked the hole-in-one on the ninth hole.” A plea bargain is not reached. Krilich doesn’t testify at trial, but, during cross-examination, his attorney gets two witnesses for the prosecution “to say that they were at the ninth hole when [the son] hit the shot but didn’t think that Krilich was at the ninth hole then.” Should the court deem Krilich’s statement that he made during plea discussions admissible? See United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998).

VI. Rule 410 Motions

Some concise examples of motions connected to evidence sought to be admitted or excluded under Rule 609 can be found at:

• United States v. D-1, Umar Farouk Abdulmutallab, 2011 WL 7277354 (E.D. Mich. 2011) (Motion to Suppress Statements Made to Government Agents at the Milan Correctional Facility) [Rule 410(a)(3)].

• Lee v. Marlowe, 2009 WL 4066872 (N.D. Ohio 2009) (Defendant’s Motion in Limine to Exclude Evidence of No Contest Pleas and Criminal Convictions and Memorandum in Support) [Rule 410(a)(2)].

• Salter v. McNesby, 2007 WL 4659522 (N.D. Fla. 2007) (Defendant’s Memorandum of Law Regarding Impact of Plaintiff’s Arrest and Plea [Rule 410(a)(2) for plea by civil plaintiff].

Evidence:

Rape Shield Rule

Version 1.2

Colin Miller

CALI eLangdell Press 2012

Preface

The Rape Shield Rule, contained in Federal Rule of Evidence 412 and state counterparts is a Rule preventing the admission of evidence concerning the sexual predisposition and behavior of an alleged victim of sexual misconduct, subject to certain exceptions. Through a series of cases and hypotheticals drawn from actual cases, this chapter gives readers a roadmap for how to address any Rape Shield Rule issue in practice.

Rape Shield Rule Chapter

Introductory Note

In 2009, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts decided to “restyle” the Federal Rules of Evidence. The goal in this project was to make the Rules more user friendly rather than to enact substantive changes. At the end of each section of this casebook, there is a side-by-side comparison between the prior language of each portion of Rule 412 and the language of the new “restyled” Rule. Because the changes were intended to be stylistic only, everything discussed in this chapter should continue to be good law after the “restyled” Rules take effect on December 1, 2011.

I. Historical Background

For the better part of this country’s history, defense attorneys in rape and sexual assault cases used to parade into court the alleged victim’s sexual partners to, in effect, prove that she had a propensity to consent to sexual relations and that she acted in conformity with this propensity, and thus consented, at the time of the alleged rape or sexual assault.[6] Or, more generally, defense attorneys used this evidence to prove that the alleged victim was a liar.[7]

Such displays impacted not only jurors, but also judges. For instance, in its 1895 opinion in State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), the Supreme Court of Missouri inanely concluded that “[i]t is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman.” See Colin Miller, New Zealand’s New Rule?: NZ’s Justice Ministry Proposes Rape Shield Law. EvidenceProf Blog, (Aug. 27, 2008.) http://lawprofessors.typepad.com/evidenceprof/2008/08/nz-rape-httpwww.html. They also led to the underreporting of rapes and historically low conviction rates in rape and sexual assault cases. See, e.g., State v. Hudlow, 659 P.2d 514, 522-23 (Wash. 1983).

This and related concerns led to the anti-rape movement, an offshoot of the civil rights movement of the 1960s and 1970s, being able to get rape shield laws passed in several states. See id. The Supreme Court later followed suit by creating Federal Rule of Evidence 412, the federal “rape shield” rule. In effect, rape shield rules protect complainants from having their past sexual behavior and/or predispositions exposed in the courtroom unless defense counsel can point toward a compelling theory of admissibility.

Specifically, as amended in 1994, Rule 412(a) now provides, “The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim’s sexual predisposition.” Rule 412(a) applies not only in rape or sexual assault cases but also in other cases, including sexual harassment cases.

II. Rule 412(a)(1): The General Proscription

Under Rule 412(a)(1), evidence of other sexual behavior by an alleged victim is now inadmissible to prove her propensity to consent to sexual acts and her likely conformity with this propensity, and thus consent, at the time of the alleged rape or similar crime in civil and criminal cases. See, e.g., Ledesma v. Gov’t of the Virgin Is., 159 F. Supp.2d 863 (D.V.I. 2001). According to the Advisory Committee’s Note, the phrase “other sexual behavior” includes not only “all activities that involve actual physical conduct, i.e. sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact,” but also “activities of the mind, such as fantasies or dreams.” Thus, for instance, in United States v. Papakee, 573 F.3d 569 (8th Cir. 2009), the Eighth Circuit found that a district court properly precluded the defendant charged with sexual abuse from introducing evidence that the alleged victim told the deputy questioning her about the crime that he was cute and asked him if he wanted to crawl into bed with her because these statements were “other sexual behavior.” Courts generally have concluded that the rape shield rule precludes the admission of evidence of the victim’s other nonconsensual, as well as consensual, “sexual behavior.” See, e.g. Bryan v. State, 2010 WL 1137038 (Tex.App. 2010); Colin Miller, Invasion Of Privacy: Court Of Appeals Of Texas Finds Trial Court Properly Excluded Evidence Of Alleged Victim’s Prior Nonconsensual Sexual Acts Under Rape Shield Rule. EvidenceProf Blog (Apr. 10, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/04/rape-shield--desmond-w-bryan-appellant-v-the-state-of-texas-state----sw3d------2010-wl-1137038texapp-fort-worth2010.html.

Moreover, under Rule 412(a)(2), evidence of the sexual predisposition of alleged victims, such as their “mode of dress, speech, or life-style will not be admissible.” Thus, for instance, evidence that an alleged victim of homosexual rape had previously engaged in consensual homosexual acts is inadmissible to prove her propensity to consent to such acts and her likely conformity with this propensity at the time of the alleged rape. See, e.g., People v. Murphy, 919 P.2d 191 (Colo. 1996). Similarly, evidence that an alleged rape victim had previously engaged in consensual extramarital affairs is inadmissible to prove her propensity to consent to such affairs and her likely conformity with that propensity at the time of an alleged rape by a man other then her husband. See, e.g., Truong v. Smith, 183 F.R.D. 273 (D. Colo. 1998).

Hypothetical 1

Aleksandr Maksimenko is charged with several counts of criminal sexual abuse after allegedly forcing several women to engage in sexual acts with him under threat of physical force against them. Before trial, the prosecution files a motion in limine, seeking to preclude the defendant from interrogating the alleged victims about their profession as exotic dancers. Should the court grant the motion? Cf. United States v. Maksimenko, 2007 WL 522708 (E.D. Mich. 2007).

Hypothetical 2

Mary Wilson brings a Title VII action against her former employer asserting acts of discrimination based on gender and sexual harassment. According to Wilson, these acts consisted, inter alia, of coworkers referring to her as a “bitch,” “cunt,” and “slut.” The defendant seeks to present evidence of Wilson’s own engagement in sexually explicit language and behavior in the workplace, such as talking about vibrators and men’s sexual organs. Is this evidence inadmissible under the Rape Shield Rule? See Wilson v. City of Des Moines, 442 F.3d 637 (8th Cir. 2006).

Hypothetical 3

Preston Gaddis is charged with rape, sexual assault, and indecent assault after allegedly throwing a 19 year-old woman onto the floor and raping her in his Pennsylvania home. At trial, Gaddis seeks to introduce evidence of the alleged victim’s relationship with another woman to prove that the alleged victim was uncertain about her sexual preference and was using intercourse with him as an attempt to determine whether she was homosexual or heterosexual. He claimed that when the experience did not turn out the way that she expected, she leveled the charges of rape against him despite the sex being consensual. The prosecution opposes the introduction of this evidence, claiming that it was inadmissible under Pennsylvania’s version of the Rape Shield Law. How should the court rule? See Colin Miller, Keystone Case: Pennsylvania Court Finds Evidence of Lesbian Relationship Inadmissible Under Rape Shield Law. EvidenceProf Blog (Jan. 24, 2008) http://lawprofessors.typepad.com/evidenceprof/2008/01/last-april-pres.html.

Prior Rules Language:

Restyled Rules Language:

(a) Evidence Generally Inadmissible.  The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(a) Prohibited Uses.  The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1)  Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(1)  evidence offered to prove that a victim engaged in other sexual behavior; or

(2)  Evidence offered to prove any alleged victim’s sexual predisposition.

(2)  evidence offered to prove a victim’s sexual predisposition.

III. Rule 412(b)(1): Criminal Exceptions

Federal Rule of Evidence 412(b)(1), however, provides certain exceptions to this rule in criminal cases. It states that:

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

An example of a court applying the exception contained in Rule 412(b)(1)(A) can be found in United States v. Begay, 937 F.2d 515 (10th Cir. 1991), where the trial court refused to allow the defendant, who was charged with aggravated sexual abuse, to present evidence that the eight year-old alleged victim had been sexually assaulted on several occasions in the months preceding the crime at issue. On the defendant’s appeal, the Tenth Circuit reversed, finding that the prosecutor presented evidence about the alleged victim’s enlarged hymenal opening and a vaginal abrasion; consequently, evidence of the sexual assaults by other men was admissible, not to prove propensity and conformity, but to prove that those assaults, rather than the defendant’s alleged crime, could have caused her injuries. See, Id. at 520.

Additionally, under Rule 412(b)(1)(B), evidence of previous consensual sexual acts between the alleged victim and the defendant are admissible to prove that there are specific reasons to believe that the alleged victim may have consented to sexual relations with the defendant at the time of an alleged rape or sexual assault. For instance, in State v. Sanchez-Lahora, 616 N.W.2d 810 (Neb. App. 2000), the Court of Appeals of Nebraska found that a trial court erred by precluding a defendant charged with sexual assault from introducing evidence that he had previously engaged in sexual relations with the alleged victim when they dated to rebut her claim that they dated but never had sexual intercourse.

It is important to note that even if evidence satisfies either Rule 412(b)(1)(A) or (B), the court can still exclude it if its probative value is substantially outweighed by the danger of unfair prejudice or any of the other dangers listed in Federal Rule of Evidence 403. Thus, for instance, in United States v. Pumpkin Seed, 2009 WL 2045690 (8th Cir. 2009), the district court prevented the defendant charged with aggravated sexual abuse from presenting evidence that the alleged victim engaged in consensual sexual activity with other men within days of the alleged abuse. On appeal, the defendant claimed that this ruling was erroneous because it would have helped prove that the victim’s injuries could have come from those acts. See, id. at 557. The Eight Circuit disagreed, concluding that the type and extent of injuries suffered by the victim were generally inconsistent with consensual activity and that the evidence would have a high risk of unfair prejudice and confusion. See Id. at 558-59.

Finally, Rule 412(b)(1)(C) is a catch-all exception, which allows for the admission of an alleged victim’s sexual history and predisposition for purposes other than those covered by Rules 412(b)(1)(A) and (B) when its exclusion would violate Constitutional rights such as the Due Process or Confrontation Clause rights of a criminal defendant. The case cited by the Advisory Committee in support of this exception involved a criminal defendant seeking to impeach his alleged victim by showing that an extramarital affair gave her a motive to lie, Olden v. Kentucky, 488 U.S. 227 (1988); thereafter, the exception has since most commonly been used for impeachment purposes. For instance, in In re K.W., 666 S.E.2d 490 (N.C. App. 2008), the Court of Appeals of North Carolina found that a trial court erred in precluding a defendant from impeaching an alleged rape victim who claimed to be a virgin with suggestive photos and captions on her MySpace page implying that she was not a virgin. See Colin Miller, It’s My Space. That’s Why They Call It MySpace, Take 3: North Carolina Court Makes Erroneous MySpace Ruling In Rape Shield Case. EvidenceProf Blog (Sept., 18 2008) http://lawprofessors.typepad.com/evidenceprof/2008/09/myspace-412-in.html.

It is important to note that some state counterparts are more restrictive than Federal Rule of Evidence 412(b)(1). For instance, unlike Federal Rule of Evidence 412(b)(1)(A), Minnesota’s counterpart, Minnesota Rule of Evidence 412(1)(B), does not allow a defendant to present evidence of an alleged victim’s other sexual behavior to prove that someone else caused her physical injuries. See, e.g., State v. McBroom, 2009 WL 4251080 (Minn. App. 2009); Colin Miller, Excepted Exception: Appeal Reveals Limited Applicability Of Minnesota’s Other Source Rape Shield Exception. EvidenceProf Blog (Dec. 6, 2009) http://lawprofessors.typepad.com/evidenceprof/2009/12/412-semenstate-of-minnesota-respondent-v-james-david-mcbroom-appellant----nw2d------2009-wl-4251080minnapp2009.html. On the other hand, other state counterparts add exceptions not contained in Federal Rule of Evidence 412(b)(1). As an example, North Carolina Rule of Evidence 412(b)(4) contains an exception to North Carolina’s rape shield rule for “evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.” See Colin Miller, But It Was Only A Fantasy: North Carolina Opinion Reveals Troubling Exception To The State’s Rape Shield Rule EvidenceProf Blog (Nov. 2, 2009) http://lawprofessors.typepad.com/evidenceprof/2009/11/but-it-was-only-a-fantasy-north-carolina-opinion-reveals-troubling-exception-to-the-states-rape-shie.html.

Finally, across the country, courts continue to apply a common law exception to rape shield rules under which defendants can present evidence of prior false rape, sexual assault, or child molestation allegations brought by alleged victims. Although courts differ over exactly when defendants can present such evidence when (1) the alleged victim herself admitted that the prior allegation was false; or (2) the prior allegation was “demonstrably false.” See, e.g., Wells v. State, 928 N.E.2d 651 (Ind. App. 2010).

Hypothetical 4

Basketball player Kobe Bryant is charged with sexually assaulting a 19 year-old woman at a Colorado hotel. The woman claims that she only had sex once in the days surrounding the Bryant incident and that the man wore a condom. In a closed hearing in the case, a DNA expert testifies that the accuser had another man’s semen on her thigh and inside her vagina during her medical examination. It was noted that a physical exam of Bryant after the incident produced no indication of a second man’s DNA, leading the expert to say that she believed that the accuser had sex with the other man in the hours after she was with Bryant. Will Bryant be able to present this evidence at trial? See Lance Pugmire and David Wharton, Case Shadowed Cracks, Experts Say. Los Angeles Times, Sept. 2, 2004; Order Re: Defendant’s Motion to Admit Evidence Pursuant to C.R.S. § 18-3-407 and People’s Motions in Limine #5 and #7 (court’s rape shield ruling), People v. Bryant, 94 P. 3d 624 (2004) (No. 03CR204).[8]

Hypothetical 5

Monty Ramone is charged with sexually assaulting his ex-girlfriend. According to the ex-girlfriend, after they had broken up, Ramone showed up at her home drunk and high on drugs and proceeded to violently sexually assault her. As a result of this assault, the ex-girlfriend was left with a deep scalp wound along her hairline, a swollen eye, a swollen hand, a bruised hip, and lips so swollen that she was unable to speak for a day or two. Ramone admitted that he beat his ex-girlfriend but alleged that she consented to the sexual acts. In his defense, he seeks to present evidence that his ex-girlfriend and he previously engaged in several consensual sexual acts while they were dating. Should the court allow for the admission of this evidence? See United States v. Ramone, 218 F.3d 1229 (10th Cir. 2000).

Hypothetical 6

Darrell Jackson was a family friend who babysat for A.C., a girl who was between ten and twelve years-old between 1999 and 2002. According to A.C., during this time period, Jackson sexually assaulted her more than 50 times. At trial, the prosecution emphasized that A.C.’s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In his defense, Jackson sought to present evidence that between 1999 and 2002, A.C. also reported being sexually assaulted by two other juveniles, her stepfather, and an employee at the Kansas Department of Social and Rehabilitation Services. The trial court deems this evidence inadmissible because it does not quite fit within the exception contained in Rule 412(b)(1)(A). Is there another ground upon which an appellate court could reverse? See State v. Jackson, 2008 WL 538948 (Kan. Ct. App. 2008); See Colin Miller, Disturbing Behavior: Court of Appeals of Kansas Finds Trial Court Failed to Apply Constitutional Exception to Rape Shield Rule, EvidenceProf Blog (Nov. 2, 2009) http://lawprofessors.typepad.com/evidenceprof/2008/03/rule-412-state.html.

Prior Rules Language:

Restyled Rules Language:

(b) Exceptions.

(b) Exceptions.

(1)  In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(1) Criminal Cases.  The court may admit the following evidence in a criminal case:

(A)  evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(A)  evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(B)  evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(B)  evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C)  evidence the exclusion of which would violate the constitutional rights of the defendant.

(C)  evidence whose exclusion would violate the defendant’s constitutional rights.

IV. Rule 412(b)(2): Civil Exception

Meanwhile, Federal Rule of Evidence 412(b)(2) provides an exception to the Rape Shield Rule in civil cases:

In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

The Advisory Committee’s Note indicates that this exception was intended to be similar in effect to the criminal exception but that “[i]t employs a balancing test rather than the specific exceptions stated in subdivision (b)(1) in recognition of the difficulty of foreseeing future developments in the law,” particularly with regard to “evolving causes of action such as claims for sexual harassment.” No judge in a civil case, however, has applied Rule 412(b)(2) to allow for the admission of evidence concerning an alleged victim’s sexual history or predisposition to prove a purpose not covered by one of the specific exceptions in Rule 412(b)(1).

Indeed, as the Advisory Committee’s Note makes clear, Rule 412(b)(2) was drafted to make it more difficult to admit evidence concerning an alleged victim’s sexual history or predisposition in civil cases than it was in criminal cases. This is because evidence satisfying a Rule 412(b)(1) exception is admissible as long as it does not violate Federal Rule of Evidence 403, which “tilts the balance in favor of admission” of evidence by providing that relevant evidence may only “be excluded if its probative value is substantially outweighed” by concerns such as “the danger of unfair prejudice.” In such cases, relevant evidence will likely be admitted because the burden is upon the party opposing the admission of evidence to prove affirmatively that its probative value is substantially outweighed by the danger of unfair prejudice.

Consider a hypothetical in which the prosecution charges the defendant with rape and presents evidence that the alleged victim had scratches on her wrists. The defendant might seek, pursuant to Rule 412(b)(1)(A), to present evidence of the alleged victim’s other sexual acts committed in the days before and after the alleged rape to prove that they could have caused her injuries. For the judge to exclude this evidence, the prosecutor would need to prove that its probative value for establishing that these other acts could have caused her injuries was substantially outweighed by the danger of unfair prejudice that the jury would misuse this evidence as an indication that the alleged victim had a propensity to consent to sexual acts and thus likely consented to the sexual act at issue. See, e.g., United States v. Begay, 937 F.2d 515, 523 (10th Cir. 2001) (“We feel there was an abuse of discretion in holding that such evidence was more prejudicial than probative for purposes of Rule 403 and 412”).

In other words, assume that probative value and unfair prejudice were scored from 1-100. If evidence of the other sexual acts had a probative value of 60 and an unfair prejudice of 40, it would be admissible because probative value would outweigh unfair prejudice. If both probative value and unfair prejudice were 50, the evidence would be admissible because probative value would equal unfair prejudice. Even if probative value was 48 and unfair prejudice was 52, the evidence would be admissible because probative value would be outweighed by unfair prejudice but not substantially outweighed by unfair prejudice. Only if probative value (e.g., 40) were substantially outweighed by unfair prejudice (e.g., 60) would the evidence be inadmissible.

In contrast, by stating that similar evidence offered in civil cases is admissible only if its probative value substantially outweighs its unfairly prejudicial effect, as well as its “harm to any victim,” Rule 412(b)(2) “reverses the usual approach” and tilts the balance toward inadmissibility in three regards according to the Advisory Committee. First, it “raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers.” Second, it “shift[s] the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence.” Third, it puts “harm to the victim” “on the scale in addition to prejudice to the parties.” See, e.g., B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1104 (9th Cir. 2002).

Thus, if we tweak the facts of the above hypothetical to make it a civil sexual assault trial, it drastically alters the issue of admissibility. In this case, for the judge to admit the “other sexual act” evidence of scratches, defense counsel would need to prove that its probative value substantially outweighs (1) the danger that the jury could misuse this evidence as an indication that the alleged victim had a propensity to consent to sexual acts and thus likely consented to the sexual act at issue (its unfairly prejudicial effect); as well as (2) the harm to the victim, including the invasion of her privacy, her potential embarrassment, and the potential for the jury to engage in stereotypical thinking with regard to her. See Advisory Committee’s Note.

Again, assume that probative value and unfair prejudice (as well as harm to the victim) were scored from 1-100. Now, if evidence of the other sexual acts had a probative value equal to or lesser than unfair prejudice and harm to the victim – e.g., 50 vs. 50 (combined) – it would be inadmissible. Even if the probative value of the evidence were slightly higher than unfair prejudice – e.g., 52 vs. 48 (combined) – the evidence would be inadmissible because probative value would outweigh prejudicial effect but not substantially outweigh prejudicial effect. Only if probative value (e.g., 60) substantially outweighed unfair prejudice and harm to the victim (e.g., 40 combined) would the evidence be admissible

Rule 412(b)(2) also provides that “[e]vidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.” Thus, if a plaintiff brings an action alleging employment discrimination based upon a sexually hostile work environment but does not seek reputational damages or make allegations relating to her professional reputation, she has not opened the door for reputational evidence to be admitted. See, e.g., Macklin v. Mendenhall, 257 F.R.D. 596, 604 (E.D. Cal. 2009) (“A review of the allegations and other information before the Court discloses no sufficient evidence showing that Plaintiff has placed her reputation in controversy in this matter”).

This per se portion of Rule 412(b)(2), however, only precludes evidence related to an alleged victim’s reputation (e.g., for promiscuity). In Seybert v. International Group, Inc., 2009 WL 3297304 (E.D. Pa. 2009), the court rejected the plaintiff’s argument that emails she sent containing sexual stories, jokes, images, and metaphors were per se inadmissible under Rule 412(b)(2), concluding that “none of the emails bear on Mrs. Seybert’s personal sexual “reputation” per se, in that none of them involve her actual or alleged personal sexual activity.” Id. at *3.

Rule 412(b)(2) technically only applies to the admissibility of evidence at trial while Federal Rule of Civil Procedure 26 addresses the extent to which evidence about an alleged victim’s sexual behavior and/or predisposition is discoverable. That said, the Advisory Committee’s Note to Rule 412 states that

In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26(c) to protect the victim against unwarranted inquiries and to ensure confidentiality. Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. In an action for sexual harassment, for instance, while some evidence of the alleged victim’s sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will usually be irrelevant…. Confidentiality orders should be presumptively granted as well.

Numerous courts have relied upon this language to issue protective orders and confidentiality orders when defendants seek discovery of evidence of plaintiffs’ sexual pasts when such evidence is unlikely to be admissible under the rape shield rue. See, e.g., E.E.O.C. v. Donohue, 746 F. Supp.2d 662, 665 (W.D. Pa. 2010).

Hypothetical 7

Tanya Giron brings a Section 1983 action for violation of her Eighth Amendment rights against Torres, claiming that she was forcibly raped by him while she was an inmate. During discovery, Torres asks Giron to respond to an interrogatory that asks her to identify and give extensive information about all persons with whom she had had sexual contact, without any time restriction. The Magistrate Judge entered an order compelling Giron to respond to the interrogatory by listing “persons with whom she has had sexual contacts in the five years prior to and the time period since the rape which forms the basis of the complaint.” You represent Giron in her appeal of this order. What arguments do you make on her behalf? See Giron v. Corrections Corp. of America, 981 F. Supp. 1406 (D. N.M. 1997).

Hypothetical 8

Rebecca Collins, a former assistant prosecutor, brings a civil action against Michael Allen, her former boss, sounding in sexual harassment and retaliation. Before trial, Allen files a counterclaim in which he seeks to present evidence of Collins’ reputation for promiscuity on the basis that Collins “put her reputation into question when she filed her frivolous sexual harassment claim.” Will he be able to present this evidence? See Collins v. Allen, 2005 WL 1073369 (S.D.Ohio 2005).

Prior Rules Language:

Restyled Rules Language:

(2)  In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

(1) Civil Cases.  In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

V. Rule 412(c): Procedure for Admissibility in Criminal Cases

Federal Rule of Evidence 412(c) contains procedures for providing notice and determining the admissibility of evidence offered in criminal cases pursuant to the exceptions contained in Rule 412(b)(1)(A), (B), or (C). The purpose of this Rule is to give notice to the opposing party in a criminal case to a similar degree as the notice that Federal Rule of Civil Procedure 26 affords to civil litigants as part of the discovery process. Cf. Sonia F. v. Eighth Judicial Dist. Court, 315 P.3d 705 (Nev. 2009); Colin Miller, Rape Shield Redux: Supreme Court Of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn’t. EvidenceProf Blog (Sep. 15, 2009). According to the Rule,

(1) A party intending to offer evidence under subdivision (b) must

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Courts consistently have held that a defendant’s failure to file a motion for a Rule 412(c) hearing under seal is a “flagrant violation” of the Rule, justifying a decision by the trial judge to exclude the proffered evidence. See, e.g., S.M. v. J.K., 262 F.3d 914, 919 (9th Cir. 2001). Only one federal appellate court has addressed the issue of whether an alleged victim can immediately appeal a trial court’s decision to admit evidence of her sexual behavior and/or predisposition after a Rule 412(c) hearing without violating the final judgment rule contained in 28 U.S.C. § 1291. Under § 1291, courts of appeals only have jurisdiction over final decisions, but courts have chosen to given the final judgment rule a “practical rather than a technical construction.” Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964). In Doe v. United States, 666 F.2d 43 (4th Cir 1981), the Fourth Circuit applied § 1291 practically to allow an immediate appeal by an alleged victim of an adverse rape shield ruling because “the injustice to rape victims in delaying an appeal until after the conclusion of the criminal trial is manifest.” See also Colin Miller, Passing Judgment: 10th Circuit Case Cites to 4th Circuit Case Allowing Immediate Appeal of Rape Shield Ruling. EvidenceProf Blog, (Dec. 4, 2008) http://lawprofessors.typepad.com/evidenceprof/2008/12/passing-judgm-1.html.

Although most courts have not addressed the issue, it seems likely that a court’s failure to hold a Rule 412(c) hearing will not entitle a defendant to a new trial because the Rule is designed to protect the alleged victim rather than the defendant. Instead, as long as the trial court allows the defendant to present arguments for why the evidence he seeks to introduce qualifies for admission under an exception to the Rape Shield Rule, failure to hold a Rule 412(c) hearing should not lead to reversal as long as the record is sufficient for the appellate court to review his evidentiary appeal. See Nevelow v. State, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]); Colin Miller, Can You Hear Me?: Court of Appeals of Texas Finds Failure to Hold in Camera Rape Shield Hearing Isn’t Reversible Error. EvidenceProf Blog (Aug. 29, 2011) http://lawprofessors.typepad.com/evidenceprof/2011/08/can-you-hear-me-court-of-appeals-of-texas-finds-failure-to-hold-in-camera-rape-shield-hearing-isnt-r.html. That said, a trial court likely violates the Rape Shield Rule or the right to counsel if it holds a Rule 412(c) hearing but does not allow the defendant to attend or be represented at it by an attorney. See LaPointe v. State, 225 S.W.3d 513, 520-21 (Tex. Crim. App. 2007).

Hypothetical 9

Danny Raplinger is charged with sexually exploiting a minor. At the close of the prosecution’s case, Raplinger offers Defendant’s Exhibits A, B, C, and D as “a late attachment” to a previously filed Sealed Motion. These Exhibits consist of previously sent sexually explicit letters from the alleged victim’s Yahoo! Profile to Raplinger and a sexually explicit digital image posted next to her name. Raplinger claims that this evidence is admissible under Rule 412(b)(1)(B), but the prosecution counters that the evidence is inadmissible because the alleged victim statutorily could not have consented to her exploitation. Is there another reason why the evidence is inadmissible? See United States v. Raplinger, 2006 WL 3455266 (N.D. Iowa 2006).

Hypothetical 10

Jonathan Pablo is charged with rape. At trial, he seeks to present evidence (1) that the alleged victim was seen undressed with two other men on the night of the rape; and (2) that the alleged victim made sexual advances towards Pablo’s co-defendant on the night of the alleged rape. Pablo acknowledges that this argument is covered by Rule 412 but believes that it qualifies for admission under Rule 412(b)(1)(C). Pablo did not file a written motion under Rule 412(c)(1)(A). Pablo, however, claims that the government relieved him of his obligation to comply with Rule 412(c) by providing its own written notice to the court a month before indicating that Pablo might introduce some evidence that would fall within Rule 412’s scope. Is he correct? See United States v. Pablo, 625 F.3d 1285 (10th Cir. 2010).

Prior Rules Language:

Restyled Rules Language:

(c) Procedure To Determine Admissibility.

(c) Procedure to Determine Admissibility.

(1)  A party intending to offer evidence under subdivision (b) must—

(1) Motion.  If a party intends to offer evidence under Rule 412(b), the party must:

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B)  serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.

(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;

(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;

(C) serve the motion on all parties; and

(D)  notify the victim or, when appropriate, the victim’s guardian or representative.

(2)  Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

(2) Hearing . Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.

VI. Rape Shield Pleadings

Some concise examples of motions connected to evidence sought to be admitted or excluded under the Best Evidence Rule can be found at:

• Velez-Lopez v. Long Life Home, Inc., 2009 WL 2590030 (D.Puerto Rico 2009) (Defendants’ Opposition to Plaintiff’s Motion in Limine);

• Maner & Goodman III v. Board of Education of Fayette County, 2007 WL 4300140 (Ky. Cir. Ct. 2007) (Response to Plaintiff Maner’s Motion in Limine); and

• Horne v. Russell County Commissioner, 2005 WL 2302984 (M.D. Ala. 2005) (Plaintiff’s Motion in Limine Regarding Sexual History).

Evidence:

Jury Impeachment

Version 1.2

Colin Miller

CALI eLangdell Press 2012

Preface

The anti-jury impeachment rule, contained in Federal Rule of Evidence 606(b) and state counterparts, is a rule preventing the admission of jury testimony or statements in connection with an inquiry into the validity of the verdict, subject to certain exceptions. Through a series of cases and hypotheticals drawn from actual cases, this chapter gives readers a roadmap for how to address any jury impeachment issue in practice.

Jury Impeachment Chapter

I. The Rule

Federal Rules of Evidence. Rule 606. Juror’s Competency as a Witness…

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

FED. R. EVID. 606(b).

In 2009, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts decided to “restyle” the Federal Rules of Evidence. The goal in this project was to make the Rules more user friendly rather than to enact substantive changes. Below is a side by side comparison of the current Rule 606(b) and the “restyled” Rule 606(b). Because the changes were intended to be stylistic only, everything discussed in this chapter should continue to be good law after the “restyled” Rules take effect on December 1, 2011.

Previous Rules Language

Restyled Rules Language

(b) Inquiry into validity of verdict or indictment.  Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

(b)During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C)  a mistake was made in entering the verdict on the verdict form.

II. Historical Origins

Excerpt from Colin Miller, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, 61 BAYLOR L. REV. 872 (2009)

Prior to 1785, English courts “sometimes received” post-trial juror testimony and affidavits concerning juror misconduct, “though always with great caution.” In that year, English Chief Justice Lord Mansfield decided Vaise v. Delaval, I.T.R. 11, where he was confronted with post-trial affidavits by jurors indicating that “the jury being divided in their opinion, had tossed up,” i.e., resolved the case by “flipping a coin or some other method of chance determination.” Mansfield deemed the affidavits inadmissible by applying the then-popular Latin maxim, nemo turpitudinem suam allegans audietur (a “witness shall not be heard to allege his own turpitude”). According to Mansfield, jurors were not competent to impeach their own verdicts, and thus themselves, because “a person testifying to his own wrongdoing was, by definition, an unreliable witness.” Vaise thus became the basis for “Mansfield’s Rule,” “a blanket ban on jurors testifying against their own verdict,” although, according to Mansfield, post-trial testimony concerning jury misconduct could be admissible if it came from another source, “such as from some person having seen the [deliberations] through a window, or by some such other means.”

* * *

Based upon “the prestige of the great Chief Justice, [Mansfield’s Rule] soon prevailed in England, and its authority came to receive in this country an adherence almost unquestioned” until the latter half of the nineteenth century.

The first major U.S. opinion challenging Mansfield’s Rule was Wright v. Illinois & Mississippi Telegraph Co., 20 Iowa 195 (Iowa 1866), an 1866 opinion in which the Supreme Court of Iowa found that a trial court erred by refusing to consider four juror affidavits alleging an illegal quotient verdict, i.e., that their “verdict was determined by each juror marking down such sum as he thought fit, and dividing the aggregate by twelve and taking the quotient as their verdict.” In the years after Wright created the “Iowa Rule,” as it became known, state courts created new formulations of and variations on Mansfield’s Rule. In 1915, however, in McDonald v. Pless, 238 U.S. 264 (1915), the United States Supreme Court’s last significant opinion on jury impeachment before the drafting of the Federal Rules of Evidence, the Court deemed juror testimony regarding an alleged quotient verdict inadmissible. The Court noted that it had to “choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room” and deemed the failure to redress the former injury “the lesser of two evils.”

III. The Drafting of Federal Rule of Evidence 606(b)

In 1969, the Advisory Committee’s first draft of what would become Federal Rule of Evidence 606(b) merely precluded jurors from impeaching verdicts through testimony “concerning the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.” Citing to the Iowa Rule, the Committee indicated that its proposed Rule permitted “impeachment concerning the existence of conditions or occurrences, ‘without regard to whether the happening [wa]s within or without the jury room.’” In 1971, however, the proposed Rule was hastily rewritten so that it also precluded jury impeachment regarding “any matter or statement occurring during the course of the jury’s deliberations….”

The House rejected this new draft while the Senate endorsed it. Eventually, the Senate and House Committees resolved the dispute in the Senate’s favor. The Senate version did allow jurors to impeach their verdicts through testimony concerning “whether extraneous prejudicial information was improperly brought to the jury’s attention and on the question whether any outside influence was improperly brought to bear on any jurors.” Most states have counterparts to Federal Rule of Evidence 606(b) that generally preclude jury impeachment, subject to the above two exceptions.

IV. Public Policy Underlying Federal Rule of Evidence 606(b)

The Advisory Committee’s Note to Federal Rule of Evidence 606(b) recognized three main values that are promoted by a rule that generally precluded jury impeachment:

• safeguarding the stability and finality of verdicts;

• preventing the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly motivated ex-jurors; and

• protecting the freedom of discussion and deliberation.

V. Supreme Court Precedent

Excerpt from Tanner v. United States, 483 U.S. 107 (1987)

JUSTICE O’CONNOR delivered the opinion of the Court.

Petitioners William Conover and Anthony Tanner were convicted of conspiring to defraud the United States…and of committing mail fraud….The United States Court of Appeals for the Eleventh Circuit affirmed the convictions….Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial; and that the conspiracy count of the indictment failed to charge a crime against the United States. We affirm in part and remand.

….

I.

.…The day before petitioners were scheduled to be sentenced, Tanner filed a motion, in which Conover subsequently joined, seeking continuance of the sentencing date, permission to interview jurors, an evidentiary hearing, and a new trial. According to an affidavit accompanying the motion, Tanner’s attorney had received an unsolicited telephone call from one of the trial jurors, Vera Asbul…. Juror Asbul informed Tanner’s attorney that several of the jurors consumed alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the afternoons….The District Court continued the sentencing date, ordered the parties to file memoranda, and heard argument on the motion to interview jurors. The District Court concluded that juror testimony on intoxication was inadmissible under Federal Rule of Evidence 606(b) to impeach the jury’s verdict. The District Court invited petitioners to call any nonjuror witnesses, such as courtroom personnel, in support of the motion for new trial. Tanner’s counsel took the stand and testified that he had observed one of the jurors “in a sort of giggly mood” at one point during the trial but did not bring this to anyone’s attention at the time….

Earlier in the hearing the judge referred to a conversation between defense counsel and the judge during the trial on the possibility that jurors were sometimes falling asleep. During that extended exchange the judge twice advised counsel to immediately inform the court if they observed jurors being inattentive, and suggested measures the judge would take if he were so informed….

….

As the judge observed during the hearing, despite the above admonitions counsel did not bring the matter to the court again….

Following the hearing, the District Court filed an order stating that, “[o]n the basis of the admissible evidence offered I specifically find that the motions for leave to interview jurors or for an evidentiary hearing at which jurors would be witnesses is not required or appropriate.”

The District Court also denied the motion for new trial….

While the appeal of this case was pending before the Eleventh Circuit, petitioners filed another new trial motion based on additional evidence of jury misconduct. In another affidavit, Tanner’s attorney stated that he received an unsolicited visit at his residence from a second juror, Daniel Hardy….Despite the fact that the District Court had denied petitioners’ motion for leave to interview jurors, two days after Hardy’s visit Tanner’s attorney arranged for Hardy to be interviewed by two private investigators….The interview was transcribed, sworn to by the juror, and attached to the new trial motion. In the interview Hardy stated that he “felt like…the jury was on one big party.”…Hardy indicated that seven of the jurors drank alcohol during the noon recess. Four jurors, including Hardy, consumed between them “a pitcher to three pitchers” of beer during various recesses….Of the three other jurors who were alleged to have consumed alcohol, Hardy stated that on several occasions he observed two jurors having one or two mixed drinks during the lunch recess, and one other juror, who was also the foreperson, having a liter of wine on each of three occasions….Juror Hardy also stated that he and three other jurors smoked marijuana quite regularly during the trial….Moreover, Hardy stated that during the trial he observed one juror ingest cocaine five times and another juror ingest cocaine two or three times….One juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine, and drug paraphernalia into the courthouse….Hardy noted that some of the jurors were falling asleep during the trial, and that one of the jurors described himself to Hardy as “flying.”…Hardy stated that before he visited Tanner’s attorney at his residence, no one had contacted him concerning the jury’s conduct, and Hardy had not been offered anything in return for his statement….Hardy said that he came forward “to clear my conscience” and “[b]ecause I felt … that the people on the jury didn’t have no business being on the jury. I felt…that Mr. Tanner should have a better opportunity to get somebody that would review the facts right.”….

The District Court…denied petitioners’ motion for a new trial.

The Court of Appeals for the Eleventh Circuit affirmed….We granted certiorari…to consider whether the District Court was required to hold an evidentiary hearing, including juror testimony, on juror alcohol and drug use during the trial….

II.

…Petitioners assert that, contrary to the holdings of the District Court and the Court of Appeals, juror testimony on ingestion of drugs or alcohol during the trial is not barred by Federal Rule of Evidence 606(b). Moreover, petitioners argue that whether or not authorized by Rule 606(b), an evidentiary hearing including juror testimony on drug and alcohol use is compelled by their Sixth Amendment right to trial by a competent jury.

By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict….

Exceptions to the common-law rule were recognized only in situations in which an “extraneous influence,” Mattox v. United States, 146 U.S 140, 146 U.S. 149 (1892), was alleged to have affected the jury. In Mattox, this Court held admissible the testimony of jurors describing how they heard and read prejudicial information not admitted into evidence. The Court allowed juror testimony on influence by outsiders in Parker v. Gladden, 385 U.S. 363, 386 U.S. 365, (1966) (bailiff’s comments on defendant), and Remmer v. United States, 347 U.S. 227, 347 U.S. 228-230, (bribe offered to juror). See also Smith v. Phillips, 455 U.S. 209, (1982) (juror in criminal trial had submitted an application for employment at the District Attorney’s office). In situations that did not fall into this exception for external influence, however, the Court adhered to the common-law rule against admitting juror testimony to impeach a verdict. McDonald v. Pless, 238 U.S. 264, (1915)….

Lower courts used this external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be admissible. The distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. For example, under a distinction based on location, a juror could not testify concerning a newspaper read inside the jury room. Instead, of course, this has been considered an external influence about which juror testimony is admissible….Similarly, under a rigid locational distinction jurors could be regularly required to testify after the verdict as to whether they heard and comprehended the judge’s instructions, since the charge to the jury takes place outside the jury room. Courts wisely have treated allegations of a juror’s inability to hear or comprehend at trial as an internal matter….

Most significant for the present case, however, is the fact that lower federal courts treated allegations of the physical or mental incompetence of a juror as “internal” rather than “external” matters….

There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process….Moreover, full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct….

….[P]etitioners argue that substance abuse constitutes an improper “outside influence” about which jurors may testify under Rule 606(b). In our view, the language of the Rule cannot easily be stretched to cover this circumstance. However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an “outside influence” than a virus, poorly prepared food, or a lack of sleep.

In any case, whatever ambiguity might linger in the language of Rule 606(b) as applied to juror intoxication is resolved by the legislative history of the Rule….

The House Judiciary Committee described the effect of the version of Rule 606(b) transmitted by the Court as follows:

“As proposed by the Court, Rule 606(b) limited testimony by a juror in the course of an inquiry into the validity of a verdict or indictment. He could testify as to the influence of extraneous prejudicial information brought to the jury’s attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he could not testify as to other irregularities which occurred in the jury room. Under this formulation a quotient verdict could not be attacked through the testimony of juror, nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jury’s deliberations.” (emphasis supplied).

….The House Judiciary Committee, persuaded that the better practice was to allow juror testimony on any “objective juror misconduct,” amended the Rule so as to comport with the more expansive versions proposed by the Advisory Committee in earlier drafts, and the House passed this amended version.

….[T]he Senate decided to reject the broader House version and adopt the narrower version approved by the Court. The Senate Report explained:

“[The House version’s] extension of the ability to impeach a verdict is felt to be unwarranted and ill-advised.

“The rule passed by the House…would have the effect of opening verdicts up to challenge on the basis of what happened during the jury’s internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judge’s instructions or that some of the jurors did not take part in deliberations.

….

“As it stands then, the rule would permit the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly-motivated ex-jurors.

“Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors.”

The Conference Committee Report reaffirms Congress’ understanding of the differences between the House and Senate versions of Rule 606(b):

“[T]he House bill allows a juror to testify about objective matters occurring during the jury’s deliberation, such as the misconduct of another juror or the reaching of a quotient verdict. The Senate bill does not permit juror testimony about any matter or statement occurring during the course of the jury’s deliberations.”

…The Conference Committee adopted, and Congress enacted, the Senate version of Rule 606(b).”

Thus, the legislative history demonstrates with uncommon clarity that Congress specifically understood, considered, and rejected a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations, including juror intoxication. This legislative history provides strong support for the most reasonable reading of the language of Rule 606(b) — that juror intoxication is not an “outside influence” about which jurors may testify to impeach their verdict.

….

Petitioners also argue that the refusal to hold an additional evidentiary hearing at which jurors would testify as to their conduct “violates the sixth amendment’s guarantee to a fair trial before an impartial and competent jury.” (emphasis in original).

This Court has recognized that a defendant has a right to “a tribunal both impartial and mentally competent to afford a hearing.”….

….Petitioners’ Sixth Amendment interests in an unimpaired jury, on the other hand, are protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel. See United States v. Provenzano, 620 F.2d 985, 996-997 (CA3 1980) (marshal discovered sequestered juror smoking marijuana during early morning hours). Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict. See Lee v. United States, 454 A.2d 770 (DC App.1982), cert. denied sub nom. McIlwain v. United States, 464 U.S. 972, (1983) (on second day of deliberations, jurors sent judge a note suggesting that foreperson was incapacitated). Finally, after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct. See United States v. Taliaferro, 558 F.2d 724, 725-726 (CA4 1977) (court considered records of club where jurors dined, and testimony of marshal who accompanied jurors, to determine whether jurors were intoxicated during deliberations). Indeed, in this case the District Court held an evidentiary hearing giving petitioners ample opportunity to produce nonjuror evidence supporting their allegations.

In light of these other sources of protection of petitioners’ right to a competent jury, we conclude that the District Court did not err in deciding, based on the inadmissibility of juror testimony and the clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict evidentiary hearing was unnecessary.

Notes

1. In the wake of Tanner, Indiana amended Indiana Rule of Evidence 606(b) so that jurors can now testify “to drug or alcohol use by any juror….” See Colin Miller, Amores Perros: Indiana Firefigther Convicted of Running Pitbull-Fighting Operation Seeks Jury Impeachment Based Upon Unadmitted Photo, EVIDENCEPROF BLOG, July 8, 2008, http://lawprofessors.typepad.com/evidenceprof/2008/07/dog-fighting-60.html. Other jurisdictions do not have such an exception.

2. As noted, in its 1915 opinion in McDonald v. Pless, 238 U.S. 264, the United States Supreme Court concluded that it had to “choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.” Later in its opinion, the Court noted that the anti-jury impeachment rule that it was announcing did not apply in criminal cases. There is no such limitation in Federal Rule of Evidence 606(b), and, obviously, the Court applied the Rule to Tanner, a criminal case. Do you agree with the Court’s conclusion in Pless or the current formulation of the Rule? Should the Rule apply even in death penalty appeals? See Colin Miller, We The Jury: Supreme Court Of Pennsylvania Refuses To Hear Allegations Of Extreme Juror Racial Prejudice In Death Penalty Appeal, EVIDENCEPROF BLOG, December 19, 2008, http://lawprofessors.typepad.com/evidenceprof/2008/12/606b-com-v-stee.html.

3. What sources of protection of a defendant’s right to a competent jury does Justice O’Connor identify? Do you think that these protections are sufficient?

VI. 606(b): The External/Internal Distinction

As Justice O’Connor found in Tanner, there is an external/internal distinction in Rule 606(b). Jurors can impeach their verdicts based upon anything external to the jury deliberation process, but they cannot impeach their verdicts based upon anything internal to the jury deliberation process. Examples of matters internal to the jury deliberation process include claims that jurors (1) took the defendant’s refusal to testify as evidence of his guilt, (2) misunderstood jury instructions, (3) reached a majority or quotient verdict, or (4) threatened each other.

Hypothetical 1: Charles Orange is charged with aggravated sexual conduct and the lesser-included offense of indecency with a child. The jury finds Orange “not guilty” of aggravated sexual misconduct but “guilty” of indecency with a child. After trial, jurors inform defense counsel that there was no unanimity. Some jurors wanted to convict Orange of aggravated sexual conduct while others wanted to acquit him entirely. In the end, the jurors split the difference and compromised, convicting Orange of the lesser-included offense. Can the jurors impeach the verdict? See Orange v. State, No. 06-08-00193-CR, (Tex. App. 6th 2008) 2009 WL 3851068; Colin Miller, Compromising Position: Court Of Appeals Of Texas Notes That Rule 606(b) Precludes Jury Impeachment Regarding Compromise Verdict. EVIDENCEPROF BLOG, Nov. 19, 2009, http://lawprofessors.typepad.com/ evidenceprof/2009/11/606b-compromise--charles-eugene-orange-appellant-v-the-state-of-texas-appellee----sw3d------2009-wl-3851068texapp-t.html.

Hypothetical 2: A jury found David Jackson guilty of murder and sentenced to him death based upon the killing of another inmate during a prison fight. Jackson thereafter moved for a new trial, alleging that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court’s explicit instruction to the contrary. In support of this contention, he proffered an affidavit of an investigator who contacted jurors after the trial. The affidavit stated that a number of jurors believed that Jackson could be released early, as had happened with a cooperating witness who testified at trial. Should the affidavit be deemed admissible? See United States v. Jackson, No. 06-41680 (5th Cir. 2008) 2008 WL 4901375; Colin Miller, How Different Is Death?: Fifth Circuit Precludes Jury Impeachment Based Upon Misunderstood Jury Instructions In Capital Case. EVIDENCEPROF BLOG, Nov. 30, 2009, http://lawprofessors.typepad.com/evidenceprof/2008/11/essential-eleme.html.

A. 606(b)(2)(A): Extraneous Prejudicial Information

Rule 606(b)(2)(A) states that jurors may testify about “whether extraneous prejudicial information was improperly brought to the jury’s attention…” “Extraneous prejudicial information is commonly understood to mean information the jury receives outside the courtroom.” United States v. Stewart, 317 F.Supp.2d 426, 431 (S.D.N.Y. 2004). Put another way, extraneous prejudicial information is “information that was not admitted into evidence but nevertheless bears on a fact at issue in the case.” Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006). Information does not need to appear overtly prejudicial to be deemed prejudicial under Rule 606(b)(1). Thus, for instance, in Bauberger v. Haynes, 666 F.Supp.2d 558 (M.D.N.C. 2009), the court reversed a petitioner’s conviction for second degree murder and other crimes after receiving testimony regarding a juror reading to other jurors the dictionary definition of “malice,” which competed with the legal definition of malice. In other words, if a juror uses any relevant information learned after the start of trial but not admitted at trial, she is using extraneous prejudicial information, and any juror can later impeach that verdict.

Hypothetical 3: During an attempt to foil a kidnap and ransom attempt, Detective Sirk strikes Henry Bradford with his squad car twice. Bradford thereafter brings a § 1983 action against Sirk. At trial, Sirk testifies that he struck Bradford a second time to prevent him from escaping because Bradford got up after initially being struck. Bradford testifies during direct examination that he never got up after being struck the first time. During cross-examination, however, when questioned about events leading up to Sirk striking him, Bradford invokes his Fifth Amendment privilege against self-incrimination. On Sirk’s motion, the judge strikes Bradford’s testimony and instructs the jury to disregard Bradford’s testimony. After the jury finds for Bradford, jurors submit affidavits indicating that they considered Bradford’s stricken testimony despite the judge’s instruction not to. Are the affidavits admissible under Rule 606(b)? See Bradford v. City of Los Angeles, 21 F.3d 1111 (9th Cir. 1994).

Hypothetical 4: Toymaker Mattel sues MGA Entertainment, claiming that Carter Bryant, MGA’s creator of Bratz dolls, created the doll’s characters and the name Bratz while he was under contract as a Barbie designer at Mattel. The jury found in favor of Mattel. MGA subsequently moved for a mistrial. MGA’s CEO was Iranian-born Isaac Larian, and it came out after trial that Juror No. 8 said with regard to Persians and/or Iranians that they “lie,” “stole ideas” and were “stubborn” and “rude.” According to several jurors, including Juror No. 8 herself, these opinions did not originate with Juror No. 8 but instead came from her husband when she asked him about the trial. Can the jurors impeach their verdict? See Bryant v. Mattel, Inc., 2008 WL 3367605 (C.D. Cal 2008); Colin Miller, In A Barbie World: Court Denies Motion For Mistrial In Bratz Lawsuit After Horribly Misguided Rule 606(b) Ruling. EVIDENCEPROF BLOG, Aug. 17, 2008, http://lawprofessors.typepad.com/evidenceprof/2008/08/606b-bryant-v-m.html. What if these opinions originated with Juror No. 8, and she did not consult her husband? See infra VIII.D. What if Juror No. 8 indicated during voir dire that ethnicity would not influence her decision as a juror in any way? See infra VII.B.

Hypothetical 5: A teenage boy from a city slum is charged with murdering his father with a switch-blade knife. The boy owned the same type of knife used in the murder and claimed that he lost it through a hole in his pocket before the murder. The prosecutor tried to establish the distinctiveness of the knife by having the storekeeper of the store where the boy purchased the knife testify that he had never seen another knife like it. During deliberations, Juror No. 8 displays to the other jurors a knife similar to the knife used in the murder which he purchased from a pawn shop two blocks from the boy’s residence. Does the knife constitute extraneous prejudicial information? See the movie 12 ANGRY MEN (MGM 1957).

It could be said that the modern counterpart to the situation in 12 Angry Men is the “Google mistrial,” i.e., jurors using internet searches to learn information about a case. See John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. TIMES, March 17, 2009. To remedy this problem, some judges have begun instructing jurors “not to Google the case online.” See Colin Miller, Avoiding The Google Mistrial: Story Reveals Measures Oklahoma Judge Has Taken In Light Of New Technologies, EVIDENCEPROF BLOG, Oct. 1, 2009, http://lawprofessors.typepad.com/evidenceprof/2009/10/jury-technologyhttpwwwnewson6comglobalstoryasps11226092.html. Another problem is jurors improperly e-mailing each other during trial and deliberations. See Colin Miller, In Birmingham, They Love The Governor: HealthSouth Appeal Prompts Interesting Hearsay And Jury Impeachment Rulings, EVIDENCEPROF BLOG, March 8, 2009, http://lawprofessors.typepad.com/evidenceprof/2009/03/co-conspirator.html. Would Rule 606(b) prevent testimony regarding such e-mails?

B. 606(b)(2)(B): Improper Outside Influences

Rule 606(b)(2)(B) states that jurors may testify about “whether any outside influence was improperly brought to bear upon any juror.” An improper outside influence “is an outside influence upon the partiality of the jury, such as ‘private communication, contact, or tampering…with a juror….’” Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006). Conversely, jurors cannot testify concerning internal influences from other jurors, no matter how improper. See, e.g., Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010) (precluding jury impeachment concerning allegations that a juror who wanted to vote “not guilty” was verbally harassed and physically threatened by other jurors).

Hypothetical 6: Paul Lewis is charged with first-degree sexual offense, robbery with a dangerous weapon, and felony breaking and entering. Among the jurors hearing the case was Deputy Eddie Hughes. Deputy Hughes actually knew Lewis because he transported him to Central Prison after his arrest. While Hughes transported Lewis, Lewis disclosed to him that he had failed a polygraph test. However, despite Hughes admitting these facts during voir dire, Lewis’ attorney did not use a preemptory challenge to remove Hughes. After Lewis was convicted, defense counsel learned that during a break in Lewis’ trial, Deputy Hughes went to the Sheriff’s Department, where a detective said to him, “[I]f we have…a deputy sheriff for a juror, he would do the right thing. You know he flunked a polygraph test, right?” Can Hughes impeach the verdict? What about if Hughes was unaware of the failed polygraph test before trial? See State v. Lewis, 654 S.E.2d 808 (N.C.App. 2008); Colin Miller, Do the Right Thing: Court Finds Detective Pressure Constitutes an Improper Outside Influence Under Rule 606(b). EVIDENCEPROF BLOG, Jan. 22, 2008, http://lawprofessors.typepad.com/evidenceprof/2008/01/do-the-right-th.html.

Hypothetical 7: Joaquin Valenica-Trujillo is charged with money laundering and several drug crimes. On the fourth day of deliberations, the jury finds him guilty of these crimes. After Valencia-Trujillo is convicted, defense counsel learns that the jury foreman booked a flight to Las Vegas which departed on the fourth day of deliberations and pressured other jurors to find the defendant guilty so that he could make his flight. Can a juror impeach the verdict? See United States v. Valencia-Trujillo, No. 09-15766 (11th Cir. 2010) 2010 WL 2163105; Colin Miller, Travel Plans: Eleventh Circuit Precludes Jury Impeachment Regarding Foreman with Flight on 4th Day of Deliberations Pressuring Jury to Hurry. EVIDENCEPROF BLOG, June 5, 2010, http://lawprofessors.typepad.com/evidenceprof/2010/06/606b-vacation--us-v-valencia-trujilloslip-copy-2010-wl-2163105ca11-fla2010.html. What if a juror admitted that he changed his vote from “not guilty” to “guilty” solely so that he could make an annual fishing trip? See State v. Miller, 772 N.W.2d 188 (Wis.App. 2009); Colin Miller, I’d Rather be Fishing: Court Refuses to Allow Jury Impeachment Based Upon Juror Changing Vote to Guilty to Make Annual Fishing Trip. EVIDENCEPROF BLOG, May 13, 2009, http://lawprofessors.typepad.com/evidenceprof/2009/05/606b--state-v-millerslip-copy-2009-wl-1081745wisapp2009.html.

C. 606(b)(2)(C): Mistake in Entering the Verdict on the Verdict Form

When Rule 606(b) was initially enacted, it only contained the previous two exceptions. Nonetheless, many courts began creating an exception to the Rule for clerical errors in entering the verdict on the verdict form. In 2006, the Rule was amended to allow jurors to testify about “whether there was a mistake in entering the verdict onto the verdict form.” The accompanying Advisory Committee’s Note indicates that

In adopting the exception for proof of mistakes in entering the verdict on the verdict form, the amendment specifically rejects the broader exception, adopted by some courts, permitting the use of juror testimony to prove that the jurors were operating under a misunderstanding about the consequences of the result that they agreed upon….The broader exception is rejected because an inquiry into whether the jury misunderstood or misapplied an instruction goes to the jurors’ mental processes underlying the verdict, rather than the verdict’s accuracy in capturing what the jurors had agreed upon….

Instead, according to the Note, “the exception established by the amendment is limited to cases such as ‘where the jury foreperson wrote down, in response to an interrogatory, a number different from that agreed upon by the jury, or mistakenly stated that the defendant was ‘guilty’ when the jury had actually agreed that the defendant was not guilty.’”

Hypothetical 8: Emily Kennedy, the administratrix of the estate of Helen A. Hopkinson, brings an action against Stanley Sticker sounding in trespass and wrongful cutting of timber. At the end of trial, the jury purportedly awards the plaintiff $5,000 in damages. It is later determined that the jury agreed to award the plaintiff $500 in damages, with the foreperson erroneously reducing that verdict to the verdict form. Can jurors testify about the error? See Kennedy v. Stocker, 70 A.2d 587 (Vt. 1950).

Hypothetical 9: A plaintiff seeks $50,000 in damages from a defendant, and the defendant counterclaims for $50,000 in damages. The jury’s verdict form appears to award the plaintiff $20,000 in damages and the defendant $30,000 in damages (e.g., $10,000 to the defendant). After the verdict is entered, jurors come forward and claim that the $20,000 in damages listed for the plaintiff was the net amount that they intended to award it, and the $30,000 allegedly awarded to the defendant was intended to be the amount deducted from the $50,000 sought by the plaintiff to reach the total final billing of $20,000. Will the juror affidavits be admissible to “correct” the verdict? Cf. Carolina Homes by Design, Inc. v. Lyons, No. COA09-74 (N.C.App. 2010) 2010 WL 2367110; Colin Miller, Standard Deduction: Court Of Appeals Of North Carolina Precludes Jury Impeachment Regarding Incorrect Damages Being Awarded. EVIDENCEPROF BLOG, June 16, 2010, awprofessors.typepad.com/evidenceprof/2010/06/606b--carolina-homes-by-design-inc-v-lyonsslip-copy-2010-wl-2367110-tablencapp2010.html.

VII. Situations Where Rule 606(b) Does Not Apply

A. Testimony by Nonjurors

As the text of Rule 606(b) and Justice O’Connor’s opinion in Tanner make clear, Rule 606(b) only governs testimony by jurors. Therefore, if a nonjuror observes jury misconduct, she can impeach the jury’s verdict. For example, in Tanner, Justice O’Connor cited to the Fourth Circuit’s opinion in United States v. Taliaferro, 558 F.2d 724 (4th Cir. 1977), in which a judge sent a Marshal to accompany jurors to a private club to deliberate and the Marshal was allowed to impeach their verdict through testimony regarding their consumption of alcoholic beverages during deliberations.

Hypothetical 10: Robert Lamb is convicted of the first-degree murder of his sister. After Lamb was convicted, he brought a motion for a new trial based upon the following facts: The trial judge, who had a scheduling conflict, left the jury in another judge’s charge on its second day of deliberations. Thereafter, the foreman told the bailiff he had a note for the judge. The bailiff saw the note, which asked about the difference between first- and second-degree murder, but he neither took possession of it nor alerted the parties or either judge. Instead, taking matters into his own hands, the bailiff told the jury the judge was out of the jurisdiction and to read the jury instructions. Can the bailiff testify concerning these facts? See Lamb v. State, No. 51457 (Nev. 2011) 2011 WL 743193; Colin Miller, No One But the Bailiff: Supreme Court of Nevada Finds Bailiff’s Improper Behavior Insufficient to Award New Trial. EVIDENCEPROF BLOG, Mar. 18, 2011, awprofessors.typepad.com/evidenceprof/2011/03/606b-lamb-v-state-p3d-2011-wl-743193nev2011.html.

B. Juror Testimony Not Offered to Impeach a Verdict

Rule 606(b) only applies when a party seeks to impeach a verdict after a verdict has been entered. Before a verdict has been entered, Rule 606(a) governs juror testimony. Even after a verdict has been entered, Rule 606(b) only governs juror testimony when offered as part of an inquiry into the validity of the verdict. Thus, most courts have held that if a juror makes a claim during voir dire (e.g., that race would not influence his decision) and then contradicts that claim during deliberations (e.g., by making racist comments), another juror may testify concerning the contradiction. Indeed, in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), the Supreme Court of North Dakota noted that “[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)…do not preclude evidence to show that a juror lied on voir dire….” Even though such testimony would be offered as part of an inquiry into whether a juror lied during voir dire, it could have the effect of invalidating the verdict because, as the United States Supreme Court held in McDonough Power Equipment, Inc. v. Greenwood, 454 U.S. 548, 556 (1984), a party can obtain a new trial by demonstrating that a juror failed to answer honestly a material question on voir dire and that a correct response would have provided a basis for a challenge for cause. See, e.g., Merchant v. Forest Family Practice Clinic, P.A., No. 2009-CA-01622-SCT (Miss. 2011) 2011 WL 3505309.

But if the court’s conclusion in Hidanovic about courts universally reaching this conclusion were once true, it is no longer true. In United States v. Benally, 546 F.3d 1230 (10th Cir. 2008), no juror responded “yes” when asked on voir dire: “Would the fact that the defendant is a Native American affect your evaluation of the case?” and “Have you ever had a negative experience with any individuals of Native American descent? And, if so, would that experience affect your evaluation of the facts of this case?” The day after Benally, a Native American man, was convicted of assaulting a BIA officer, a juror told defense counsel, among other things, that during deliberations some jurors discussed the need to “send a message back to the reservation.” and one juror said that ….“[w]hen Indians get alcohol, they all get drunk,” and that when they get drunk, they get violent….

The district court allowed Benally to use juror affidavits to this effect in support of his motion to vacate the verdict and receive a new trial. The United States Court of Appeals for the Tenth Circuit, however, reversed and deemed the affidavits inadmissible because it found that Benally was using the affidavits to show that jurors lied during voir dire as a vehicle for “question[ing] the validity of the verdict.” The court did acknowledge, though, that the affidavits would have been admissible in contempt proceedings against any dishonest jurors. Nonetheless, most courts still allow jurors to testify regarding jury deliberations to prove that a jury lied during voir dire. But cf. United States v. Snipes, No. 10-15573 (11th Cir. 2011) 2011 WL 3890354 (ignoring an argument by actor Wesley Snipes that he should be granted leave to interview jurors concerning whether they lied during voir dire regarding their acceptance of the presumption of innocence); Colin Miller, A Taxing Matter, Take 2: 11th Circuit Affirms District Court’s Ruling Denying Wesley Snipes’ Motion For A New Trial. EVIDENCEPROF BLOG, Sep. 7, 2011, http://lawprofessors.typepad.com/evidenceprof/2011/09/yesterday-the-eleventh-circuit-decided-united-states-v-snipes-2011-wl-3890354-11th-cir-2011-in-the-opinion-the-court.html.

VIII. Splits in Authority

A. States without Counterparts to Rule 606(b)

Some states, like Washington, do not have counterparts to Federal Rule of Evidence 606(b) and/or allow post-verdict juror testimony regarding overt acts during jury deliberations but disallow juror testimony regarding a juror’s mental process in reaching a verdict. For instance, in Washington, a juror can impeach a verdict unless the information provided “inheres in the verdict,” i.e., unless it relates to “[j]uror motives, the effect the evidence had on the jurors, the weight given to the evidence by particular jurors, and the jurors’ intentions and beliefs….” State v. Rooth, 121 P.3d 755, 760-61 (Wash.App. Div. 2 2005); see also Colin Miller, A Trial That Will Live In Infamy?: Washington Case Reveals That The State Has No Version Of Rule 606(b), EVIDENCEPROF BLOG (February 18, 2009), http://lawprofessors.typepad.com/evidenceprof/2009/02/a-washington-ju.html.

B. Minnesota’s Violence Exception to Rule 606(b)

In most jurisdictions, jurors cannot impeach their verdicts through allegations of actual or threatened violence against them by other jurors. Under Minnesota Rule of Evidence 606(b), however, jurors may ….“testify as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict.”….

In Gaines v. Tenney, No. E2008-02323-COA-R3-CV (Tenn.Ct.App. 2010) 2010 WL 199628, a juror claimed that she changed her vote from “not guilty” to “guilty” because she was subjected to threatened and actual violence by other jurors, such as the foreman reaching across a table and throwing paper at her. The Court of Appeals of Tennessee refused to read a violence exception into Tennessee Rule of Evidence 606(b). Do you think that the juror should have been able to testify? What if the juror’s claim was that the foreman stood between her and the door and prevented her from telling the judge that she was voting “not guilty”? See Colin Miller, Turkey Of An Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door To Prevent Juror From Reporting “Not Guilty” Vote In Thanksgiving Related Case, EVIDENCEPROF BLOG, Nov. 26, 2009, http://lawprofessors.typepad.com/evidenceprof/2009/11/thanksgivingpanella-v-marshallslip-copy-2009-wl-2475007edcal2009.html.

If you agree with Minnesota’s version of the rule, do you believe that courts should draw the line at violence? According to the Committee Comment to Minnesota Rule of Evidence 606(b), ….“The trial court must distinguish between testimony about ‘psychological’ intimidation, coercion, and persuasion, which would be inadmissible, as opposed to express acts or threats of violence.”…. Do you see a distinction between a juror threatening another juror’s physical well-being unless she changes her vote and a juror threatening another juror’s mental or emotional well-being?

C. Testimony About the Effect on Deliberations of Extraneous Prejudicial Information/Improper Outside Influences

As noted above, jurors can impeach their verdicts based upon allegations of extraneous prejudicial information and/or improper outside influences. But can they testify about the effect of such information/influences on their deliberations? The courts are split. For instance, in the Bratz case, the United States District Court for the Central District of California allowed jury impeachment regarding the statements by Juror No. 8 and her husband regarding Persians and/or Iranians. See VI., Hypothetical 2, supra at 13, The court, however, affirmed the verdict in favor of Mattel after it received testimony from jurors indicating that Juror No. 8’s “remarks were made after agreement had been reached on all subjects upon which the jury ultimately reached a verdict.” Other courts, however, hold that jurors can only testify concerning information/influences, and it is then up to the judge objectively to determine the probable effect that they would have on the average juror. See United States v. Lloyd, 269 F.3d 228, 238 (3rd Cir. 2001). In other words, in these jurisdictions, jurors could testify that they read an article that the defendant failed a polygraph test, but they could not testify that the article changed their vote from “not guilty” to “guilty” or that the jury was deadlocked before the article was read. Considering the language of Rule 606(b), which interpretation do you think is correct?

D. Allegations of Juror Racial, Religious, or Other Bias When Jurors Are Not Questioned Regarding Bias on Voir Dire

As noted, in Tanner v. United States, the United States Supreme Court found that a defendant’s right to a competent jury is not violated by the application of Rule 606(b) to allegations of jurors sleeping and using drugs and alcohol during trial and deliberations. But does application of the Rule to allegations of juror racial, religious, or other bias violate a defendant’s right to an impartial jury or some other constitutional right? First, a few courts have found that the Rule does not apply to such allegations because they constitute extraneous prejudicial information. See, e.g., State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995). And at least one court has found that such bias constitutes an outside improper influence. See United States v. Taylor, 2009 WL 311138 (E.D. Tenn. 2009). Most courts, though, hold that juror bias is internal to the jury deliberation process and that allegations regarding such bias are inadmissible under Rule 606(b). See also Colin Miller, Dismissed with Prejudice?: Eastern District of Tennessee Issues Strange Opinion in Appeal Alleging Juror Racial Bias. EVIDENCEPROF BLOG, Feb. 14, 2009, http://lawprofessors.typepad.com/evidenceprof/2009/02/i-am-currently.html.

Some courts, though, hold that, despite the language of Rule 606(b), Constitutional considerations might allow or require courts to permit jury impeachment regarding such bias. For instance, in United States v. Villar, 586 F.3d 76 (1st Cir. 2009), hours after a jury convicted a Hispanic man of bank robbery, a juror e-mailed defense counsel that another juror said during deliberations, “I guess we’re profiling but they cause all the trouble.” The district court allowed jury impeachment on this subject, and the First Circuit affirmed, agreeing with the “[m]any courts [which] have recognized that Rule 606(b) should not be applied dogmatically where there is a possibility of juror bias during deliberations that would violate a defendant’s Sixth Amendment rights.”

Other courts, however, disagree, such as the Tenth Circuit in United States v. Benally, 546 F.3d 1230 (10th Cir. 2008). See VII. 0 supra at 17. In addition to finding that Rule 606(b) prevented juror testimony regarding juror racial bias during deliberations to prove that jurors lied during voir dire, the court found that the Sixth Amendment right to an impartial jury did not trump Rule 606(b) and allow such testimony. Benally filed a petition for writ of certiorari regarding (1) whether jurors can generally testify about allegations of racial bias during deliberations under the Sixth Amendment, and (2) whether Rule 606(b) allows jurors to testify about allegations of racial bias during deliberations when jurors indicated during voir dire that race would not influence their decision as a juror in any way. The United States Supreme Court denied the petition. Which approach do you prefer?

IX. Jury Impeachment Pleadings

Some concise examples of motions connected to evidence sought to be admitted or excluded under Rule 606(b) can be found at:

• Williams v. Hall, 2009 WL 4060880 (D.Or. 2009) (Reply to Response in Opposition to Motion for Order Permitting Juror Interviews);

• Pierson v. Ford Motor Co., 2009 WL 2704593 (N.D.Cal. 2009) (Plaintiff’s Opposition to Defendant’s Third Motion to Adjust the Verdict Based on Clerical Error, and, in the Alternative, Request for Evidentiary Hearing); and

• Fuller v. Fiber Glass Systems, L.P., 2009 WL 461992 (E.D.Ark. 2009) (Defendant’s Response to Court’s Query).

Evidence:

Impeachment by Evidence of a Criminal Conviction

Colin Miller

The John Marshall Law School

CALI eLangdell Press 2013

Impeachment by Evidence of a Criminal Conviction (Rule 609) Chapter

I. An Introduction to Impeachment Evidence

Propensity character evidence is evidence used to prove that a person has a propensity to act a certain way and that he likely acted in conformity with that propensity at the time of a pre-trial wrong. For instance, evidence that a defendant charged with battery had a prior conviction for battery would be used to prove his propensity to act violently and his likely conformity with that propensity at the time of the crime charged (“Once a batterer, always a batterer.”). Propensity character evidence is generally inadmissible. See Federal Rule of Evidence 404. When a party impeaches a witness with evidence of a prior conviction, the party is also asking the jury to engage in a propensity/conformity analysis, but it is a different propensity conformity analysis. The goal of the party in impeaching a witness is to use the witness’s prior conviction(s) to prove that the witness has a propensity to be deceitful and that the witness is likely acting in conformity with that propensity by lying on the witness stand and/or when making a prior statement admitted at trial to prove the truth of the matter asserted. Impeachment through evidence of prior convictions is covered by Federal Rule of Evidence 609.

II. The Rule

Federal Rule of Evidence 609. Impeachment by Evidence of Criminal Conviction

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

III. Historical Origins

In the common law days, the doctrine of disqualification for infamy deemed an individual who had been convicted of a felony or a crime of crimen false incompetent to testify at trial. At the time, felony convictions were generally defined as convictions for crimes punishable by incarceration for more than one year while crimen falsi referred to crimes involving fraud, deceit, or obstruction of justice. This “infamy rule” was part of a patchwork of rules deeming certain categories of individuals incompetent to testify at trial. For instance, spouses were incompetent to testify under the doctrine of coverture and atheists were incompetent to testify on the grounds of irreligion. Eventually, statutory reforms replaced these incompetence rules. One such reform replaced the doctrine of disqualification for infamy with a rule permitting convicted individuals to testify, but allowing for the automatic admission of evidence of their felony and crimen falsi convictions for impeachment purposes, i.e., to call into question their credibility as witnesses. Subsequently, most courts relented in the face of scholarly criticism of such automatic admission and shifted toward a more flexible approach under which they balanced a conviction’s probative value against its prejudicial effect before admitting it.

IV. Federal Rule of Evidence 609

A. Passage of Rule 609

Congress eventually codified this common law into Federal Rule of Evidence 609, which was “[s]ewn together using disparate parts and contradictory theories.” Mark Voigtmann, Note, The Short History of a Rule of Evidence That Failed (Federal Rule of Evidence 609, Green v. Bock Laundry Machine Co. and the New Amendment), 23 IND. L. REV. 927, 929 (1990). Those who wanted convictions deemed per se admissible to impeach witnesses were pitted against those who urged that strict limits be placed on conviction-based impeachment, with each and every opinion in between finding voice in one of the panoply of its drafts. Rule 609 sparked more controversy than any other provision of the Federal Rules of Evidence by a significant margin, with the debate so fierce that it eventually “threatened the entire project to create a Federal Rules of Evidence” as the debate exploded from a narrow discussion of impeachment into a broad referendum “on how to balance the rights of an accused against the rights of society to defend itself from criminals.” Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 CARDOZO L. REV. 2295, 2295, 2301 (1994). As finally enacted, Rule 609 was thus a “creature born of legislative compromise,” a judicial Scylla of sorts – “incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms” which “wreak[ed] a sort of judicial vengeance on those unfortunate enough to have to apply it.” See Colin Miller, Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under the Felony Impeachment Rule, 26 PEPP. L. REV. 997, 1039 (2009) [hereinafter Impeachable Offenses?].

B. Federal Rule of Evidence 609(c)

Rule 609(c)

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

If a party seeks to impeach a witness through a conviction, the first question is whether that conviction has been the subject of a procedure that renders it per se inadmissible under Rule 609(c). Rule 609(c) enumerates a few procedures that potentially trigger a Rule 609(c) analysis. One enumerated procedure is the pardon, in which the President, governor, or an agency, such as a pardon or parole board, releases an offender from the consequences of his offense. In such a situation, the pardoner delivers the pardon to the pardonee, and the pardon is “not communicated officially to the court.” United States v. Wilson, 32 U.S. 150, 161 (1833). Conversely, a convict typically receives an annulment from a court by filing a petition of annulment with the sentencing court pursuant to a procedure set forth in a statute. Meanwhile, the “‘certificate of rehabilitation’ is something similar to an annulment or a pardon, constituting an exceptional determination that the defendant has been fully reintegrated into society.” United States v. Berger, 50 F.3d. 16 (9th Cir. 1995).

A pardon or annulment can be based on a finding of innocence. For instance, one study found that between 1989 and 2003, there were 42 cases where executive officers issued pardons based upon evidence of defendants’ innocence, which often consisted of DNA evidence. See Samuel R. Gross, Exonerations in the United States, 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY, 523, 524 (2005). Because the exonerated individuals in such cases are deemed innocent of the subject crimes, their convictions cannot be used to impeach them under Rule 609(c)(2), even if they are subsequently convicted of other crimes.

Like the certificate of rehabilitation, a pardon or annulment can also be based upon a finding that the convicted person was rehabilitated. As an example, in Brown v. Frey, 889 F.2d 159 (8th Cir. 1989), the plaintiff, an inmate at the Missouri Eastern Correctional Center (MECC), brought a lawsuit alleging that various MECC employees deprived him of numerous constitutional rights. At trial, the district court precluded the plaintiff from cross-examining a MECC Investigator regarding a prior perjury conviction. See id. at 162. Upon the plaintiff’s cross-appeal, the Eighth Circuit found that the district court properly precluded such cross-examination under Rule 609(c)(1), noting that the Investigator’s conviction was pardoned based on a finding of rehabilitation. See id. at 171.

If, however, like a certificate of rehabilitation, a pardon, or annulment is based upon a finding of rehabilitation rather than innocence, Rule 609(c)(1) provides that the conviction can still potentially be admissible to impeach the witness if the witness is subsequently convicted of a “crime punishable by death or by imprisonment for more than one year,” i.e., a felony conviction. The reasoning behind this exception is that Rule 609(c)(1) prevents impeachment on the ground “that a rehabilitated person should no longer be associated with his conviction.” Chandra S. Menon, Comment, Impeaching Witnesses in Criminal Cases with Evidence of Convictions: Putting Louisiana’s Rule in Context, 79 TUL. L. REV. 701, 709 (2005). When, however, a witness is “subsequently convicted of a felony, he has demonstrated that he is not truly rehabilitated.” Id. The United States District Court for the District of Columbia used this qualification in United States v. Morrow, 2005 WL 1017827 (D.D.C. 2005), when it allowed defense counsel to impeach a witness for the prosecution through a felony weapons conviction which had been set aside due to rehabilitation because the witness was subsequently convicted of felony theft.

By their language, Rules 609(c)(1) & (2) also preclude conviction-based impeachment when a conviction is subjected to an “equivalent procedure,” with the dispositive question being whether the procedure was based upon a finding of rehabilitation or innocence of the person convicted. An example where a court found this question answered in the affirmative can be found in United States v. Pagan, 721 F.2d 24 (2nd. Cir. 1983), where the Second Circuit determined that the district court committed reversible error by allowing the prosecution to impeach the defendant through his conviction for interstate transportation of a stolen vehicle because that conviction was vacated pursuant to the set-aside provision of an act which required a finding that the offender’s rehabilitation had been accomplished.

Conversely, in U.S. Xpress Enterprises, Inc. v. J.B. Hunt Transport, Inc., 320 F.3d 809 (2003), a wrongful death action based upon a traffic accident, a district court denied the motion of a co-defendant to preclude the plaintiff from impeaching its driver through convictions under Canadian law for possession of stolen property and conspiracy. On appeal, the Eighth Circuit found that the district court’s decision was not an abuse of discretion because the driver’s convictions were absolved under Canadian law, not based upon a finding of innocence or rehabilitation, but because the driver paid $5,000 and complied with his six-month probation term. See id.

Of course, pardons or annulments can also be issued without a finding of innocence or rehabilitation, as is the case with automatic pardons issued to restore the civil rights lost by an incarcerated individual by virtue of his conviction. Moreover, when a conviction is pardoned, annulled, or otherwise expunged based upon a desire to encourage rehabilitation, as opposed to a finding of rehabilitation, Rule 609(c)(1) does not preclude impeachment.

Hypothetical 1: Jon Paul Hamilton and Allen Lamar McMurrey are convicted of counterfeiting of U.S. Treasury checks and related crimes. They thereafter appeal, claiming that the district court erred in precluding them from impeaching a witness for the prosecution, Calvin Stout, with evidence of his prior convictions for armed robbery and theft by check. Before trial, the governor of Oklahoma granted Stout “a full and free pardon.” The pardon certificate, a pre-printed form, stated that

since [Stout’s] release, it appears [that Stout] … has conformed to all rules and conditions, and that documentary evidence has been submitted to show that he has not been arrested nor violated the law and that he has conducted himself in a law-abiding and upright manner.

Did the court properly exclude evidence of the conviction? See United States v. Hamilton, 48 F.3d 1995 (5th Cir. 1995). What if Stout committed felony assault after he was released?

Hypothetical 2: Michael Burkeen slipped and fell on a liquid substance on the floor of a Wal–Mart store in Hot Springs, causing injuries and memory loss. The liquid apparently came from a broken snow globe that had been part of a Christmas display. Michael and his wife Linda bring a negligence action against Wal-Mart, and both testify at trial. The trial court precluded Wal-Mart from impeaching Linda through evidence of her prior felony theft conviction that arose out of check-kiting scheme. Before trial, the Yell County Circuit Court had entered an order expunging her record, finding that she had “satisfactorily complied with the orders of this court, and that the petition to expunge and seal should be granted.” Did the trial court properly exclude evidence of the conviction? See Wal-Mart Stores, Inc. v. Regions Bank Trust Dept., 69 S.W.3d 20 (Ark. 2002).

Hypothetical 3: Percy “June” Hutton is convicted of aggravated murder with a gun and related crimes. After he is convicted, Hutton appeals, claiming that the trial court erred by allowing the prosecution to impeach him through the following redirect examination of a witness for the prosecution:

Q. Now, Mrs. Pollard, isn’t it a fact that you know Percy Hutton took the life of someone?

MR. HILL: Objection.

THE COURT: Overruled.

A. Answer?

THE COURT: Yes, you may answer.

A. Yes, I heard of it.

This question related to Hutton’s prior conviction for involuntary manslaughter in 1978, which was subsequently reversed based upon the finding that Hutton was denied his right to a fair trial. Was this redirect examination proper? See State v. Hutton, 1988 WL 39276 (Ohio App. 1988). What if Hutton had subsequently been convicted of felony assault before trial?

C. Federal Rule of Evidence 609(d)

Rule 609(d)

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

Assuming that a conviction is not per se inadmissible under Rule 609(c), the second question is whether the conviction is a juvenile adjudication under Rule 609(d). Rule 609(d) places strict limitations on the admission of juvenile adjudications – adjudications that result from proceedings in the juvenile justice system[9] – for impeachment purposes. According to the Advisory Committee’s Note, some of the main rationales undergirding this disfavoring of impeachment through juvenile adjudications were “policy considerations much akin to those which dictate exclusion of adult convictions after rehabilitation has been established.” Indeed, before the passage of the Federal Rules of Evidence, “[t]he prevailing view ha[d] been that a juvenile adjudication [wa]s not usable for impeachment.” Id. The drafters of Rule 609(d) decided to take a different route, with this deviation premised on the grounds that “the rehabilitative process may in a given case be a demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice.” Id.

Accordingly, evidence of juvenile adjudications are admissible, but only if four circumstances are satisfied. First, under Rule 609(d)(1), juvenile adjudications are only potentially admissible in criminal cases, meaning that they are per se inadmissible in civil cases. See Powell v. Levit, 640 F.2d 239, 241 (9th Cir. 1981) (“The trial court has no discretion to admit such evidence in a civil proceeding.”). Second, under Rule 609(d)(2), juvenile adjudications are per se inadmissible against criminal defendants. See United States v. Pretlow, 770 F. Supp. 239, 243 (D.N.J. 1991) (“Federal Rule of Evidence 609(d) simply does not permit the use of such evidence against a [criminal] defendant.”). This of course, means that such adjudications are potentially admissible against any other witness in a criminal case: (1) any witness for the prosecution, including the alleged victim; or (2) any witness called by a criminal defendant.

Skipping to the fourth circumstance, a juvenile adjudication is only admissible if it “is necessary to fairly determine guilt or innocence” under Rule 609(d)(4). In making this determination, courts consider factors such as whether (1) the “juvenile court adjudication could shed light on the credibility of a key witness,” (2) “whether in the particular case the rehabilitative purposes of the juvenile system ha[d] failed,” or (3) whether the adjudication is the only evidence that could be used to impeach the witness. See John E.B. Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment, 18 PAC. L.J. 801, 932 (1987). Only if the party seeking to impeach a witness through a juvenile adjudication can make a strong showing of necessity can he overcome the “presumption that evidence of juvenile adjudications is generally not admissible.” United States v. Williams, 963 F.2d 1337 1341 (10th Cir. 1992).

In Williams, for example, the Tenth Circuit found that the defendant failed to make such a showing when he tried to impeach a witness for the prosecution with evidence of a juvenile adjudication after he already impeached her with evidence that she was cheating the welfare system. Conversely, in State v. Van Den Berg, 791 P.2d 1075 (Ariz. App. 1990), the Court of Appeals of Arizona found that the trial court erred in precluding a defendant charged with aggravated assault from impeaching one of his alleged teenage victims with evidence that he was on probation from a juvenile adjudication. The adjudication was the only evidence available to impeach the victim, a key witness for the prosecution, and the victim’s probationary status gave him an additional motive to lie at trial (the defendant claimed that the alleged assault consisted of warning shots fired after the teenagers trespassed and then became abusive toward him, behavior that would have constituted a probation violation).

Even upon making a showing that a juvenile adjudication “is necessary to fairly determine guilt or innocence,” the third circumstance under Rule 609(d)(3) requires the party to prove that “an adult’s conviction for that [same] offense would be admissible to attack the adult’s credibility.” This inquiry is the subject of the next several sections.

Hypothetical 4: Edward Powell brings a civil rights suit under 42 U.S.C. § 1983 against several police officers, alleging that they arrested him without probable cause and with excessive force. On cross-examination of Powell by defense counsel, the following exchange took place:

Question: Okay. Had you ever been injured by police before?

Answer: Sure.

Question: When?

Answer: When I was a kid.

Defense counsel then asked Powell how he was injured by police as a kid. Powell said that he had been handcuffed and taken out of school. Defense counsel asked: “Why were you taken out of high school in handcuffs?” Powell revealed that he had been involved in a juvenile adjudication. Were defense counsel’s questions proper? See Powell v. Levit, 640 F.2d 239 (9th Cir. 1981). What if the plaintiff’s attorney sought to question one of the police officers about a juvenile adjudication?

Hypothetical 5: Richard Lacy is charged with murder after stabbing the victim 23 times after an argument. Lacy had a prior juvenile sex offense. At trial, the following exchange occurred between the prosecutor and a mental health expert

Q: And in Port Smith, Virginia, what was he treated for?

[Defense Counsel]: Objection.

The Court: Overruled.

[Defense Counsel]: Your Honor, could we approach?

The Court: Yes.

(A bench discussion was held)

Q: Dr. Hilkey, what was the Defendant being treated for?

A: Do I need to answer that? He had been involved with inappropriate touching of a child and he was referred for treatment for that.

Were the prosecutor’s questions proper? See State v. Lacy, 711 S.E.2d 207 (N.C. App. 2011); See Colin Miller, Juvenile Record: Court Of Appeals Of North Carolina Finds Error In Allowing Impeaching Of Defendant Through Juvenile Adjudication, EvidenceProf Blog, May 27, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/05/similar-to-its-federal-counterpartnorth-carolina-rule-of-evidence-609dprovides-that-evidence-of-juvenile-adjudications.html.

Hypothetical 6: During a nighttime raid of a residence, an officer observes a gun being thrown out of a bathroom window. Soon thereafter, officers enter the bathroom and come upon Maseiva Saumani, Dmitri Powell, and Louis Ford. The prosecution develops the theory that Saumani threw the gun out of the window and charges him with being a felon in possession of a handgun. Defense counsel indicates that Powell and Ford, the only two eyewitnesses, will give testimony at trial that will vindicate Saumani. At trial, the prosecution impeaches Powell and Ford with evidence of their juvenile adjudications for second degree robbery and first degree theft, the only impeachment evidence that it had against them. Was this impeachment proper? See United States v. Saumani, 189 F.3d 476 (9th Cir. 1999).

Hypothetical 7: Margarita Ciro and Fanny Lida Sloan are charged with conspiracy to distribute cocaine and possession of cocaine with intent to distribute. At trial, three government agents offer strong testimony against Ciro and Sloan. Juan Caicedo, who also participated in the cocaine conspiracy and turned state’s evidence, also testifies against the defendants. On cross-examination, Caicedo admits that he “free based” cocaine four times a week, and that free basing diminished his ability to recall the crimes charged. He also admits that as a result of his cooperation with the government he would not be prosecuted for “60, 70, or 80 other deals” in which he was involved. The district court precludes the defendants from impeaching Caicedo through evidence of his juvenile adjudication for kidnapping and assault with intent to rape. Did the district court act properly? See United States v. Ciro, 753 F.2d 248 (2nd Cir. 1985).

D. Federal Rule of Evidence 609(a)(2)

Rule 609(a)(2)

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction…

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Assuming that the conviction is an adult conviction or a juvenile adjudication that satisfies Rules 609(d)(1), (2), and (4), the third question is whether it can readily be determined that the prosecution had to prove a dishonest act or false statement by the witness to convict him of the prior crime. If this can be readily determined, the conviction is per se admissible under Rule 609(a)(2), unless the conviction is more than ten years old, in which case it is covered by Federal Rule of Evidence 609(b). Under Rule 609(a)(2), it is irrelevant whether the prior conviction is a felony or misdemeanor conviction, i.e., it is irrelevant what punishment is prescribed for the crime.

Prior to 2006, Federal Rule of Evidence 609(a)(2) deemed prior convictions that were not more than 10 years old per se admissible to impeach as long as the underlying crime “involved dishonesty or false statement.”[10] For instance, assume that a defendant called the victim and asked for his help in fixing a television that was not broken as a ruse so that the defendant could kill the victim when he arrived at his house. Because the defendant’s murder of the victim “involved dishonesty or false statement,” it would be per se admissible to impeach him at a subsequent trial held within the 10 years following the defendant’s release.

In 2006, Rule 609(a)(2) was amended to preclude such findings. According to the Advisory Committee,

The amendment provides that Rule 609(a)(2) mandates the admission of evidence of a conviction only when the conviction required the proof of (or in the case of a guilty plea, the admission of) an act of dishonesty or false statement. Evidence of all other convictions is inadmissible under this subsection, irrespective of whether the witness exhibited dishonesty or made a false statement in the process of the commission of the crime of conviction. Thus, evidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime.

The Advisory Committee noted that this change is consistent with the Conference Committee Report accompanying the original Federal Rule of Evidence 609, which stated:

That by “dishonesty and false statement” it meant “crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the [witness’s] propensity to testify truthfully.”

In other words, Rule 609(a)(2) now only applies to these crimen falsi crimes and other crimes such as larceny by trick “in which the ultimate criminal act [i]s itself an act of deceit.” Conversely, in the murder example from above, because murder is not an act of deceit, the witness’s murder conviction would not be covered by Rule 609(a)(2). This makes sense because the prosecution in that murder case did not have to prove the defendant’s lie to convict him of murder; it merely had to prove that the defendant killed the victim (with the requisite mens rea).

But what if the witness’s conviction is for a crime such as simple larceny, which might or might not involve dishonesty? According to the Advisory Committee,

Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment—as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly—a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted.

For instance, in Sanders v. Ritz-Carlton Hotel Co., LLC, 2008 4155635 (S.D.N.Y. 2008), the defendants sought to impeach the plaintiff through, inter alia, his prior conviction for participation in a RICO enterprise. While RICO crimes can involve deceit or force, the court found that the defendant’s conviction was admissible under Rule 609(a)(2) because the indictment in that case stated that “the enterprise involved a variety of fraudulent schemes, including…submitting fraudulent accident claims to insurance companies.” See Colin Miller, Putting On The Ritz: New York Court Makes Seemingly Improper Rule 609(b) Ruling In Slip And Fall Case, EvidenceProf Blog, September 14, 2008; http://lawprofessors.typepad.com/evidenceprof/2008/09/609-sanders-v-r.html.

As noted, assuming that it can readily be determined that the prosecution had to prove a dishonest act or false statement by the witness to convict him of the prior crime, the conviction is per se admissible, unless the conviction is more than ten years old, in which case it is covered by Federal Rule of Evidence 609(b). Assuming that this fact can readily be determined, you can thus bypass the fourth question in the next subsection, subsection E., and move to subsection F. to determine under whether the prior conviction is more than ten years old.

Hypothetical 11: James Toney is charged with mail fraud, and the prosecution seeks to impeach him with his prior conviction for mail fraud. This prior conviction was less than one year old. Toney does not dispute that mail fraud is a crime covered by Rule 609(a)(2). He claims, however, that evidence of his prior conviction couldn’t be more prejudicial because the jury will clearly misuse it as propensity character evidence to conclude that he committed the crime charged. Should the court exclude evidence of the prior conviction? See United States v. Toney, 615 F.2d 277 (5th Cir. 1980).

Hypothetical 12: Kelly David is charged with conspiracy to defraud the IRS and aiding and assisting in the filing of false tax returns. At trial, the prosecution impeaches him under Rule 609(a)(2) with evidence of his 8 year-old prior conviction for misdemeanor theft, which is a crime when a person “shall feloniously steal, take, carry, lead, or drive away the personal property of another.” The prosecution proved that this crime involved a dishonest act or false statement through a police report. The report stated that David, an employee of Neiman Marcus, had a scheme of making false credits on his American Express credit card. These credit card entries did not correspond to any actual purchase of merchandise from Neiman Marcus. Rather, they listed fictitious persons as having returned merchandise to the store, the proceeds from which David would convert to his own use. Was this impeachment proper under Rule 609(a)(2)? See United States v. David, 337 Fed. Appx. 639 (9th Cir. 2009); See Colin Miller, It’s In My Report: 9th Circuit Finds Police Report Insufficient To Prove Conviction Fell Under Rule 609(a)(2), EvidenceProf Blog, May 26, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/05/federal-rule-of-evidence-609a2provides-that-the-following-rules-apply-to-attacking-a-witnesss-character-for-truthfuln.html.

E. Federal Rule of Evidence 609(a)(1)

Rule 609(a)(1)

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant…

If a conviction is not for a crime for which the prosecution had to prove a dishonest act or false statement by the witness, the fourth question is whether the conviction is a felony conviction. As indicated by the language of Rule 609(a)(1), a felony conviction is a conviction for a crime punishable by death or imprisonment for more than one year, regardless of the actual punishment imposed. Accordingly, if a defendant commits simple robbery and is sentenced to probation or 6 months’ imprisonment, the robbery conviction is still a felony conviction if the maximum punishment for simple robbery is imprisonment for 4 years. See Smith v. Tidewater Marine Towing, Inc., 927 F.2d 838, 840 (5th Cir. 1991).

Keep in mind, though, that Rule 609(a)(1) requires that the crime be punishable by death or imprisonment in excess of one year. Therefore, if a conviction is for a crime that is punishable by a maximum of 12 months/1 year incarceration, it is a misdemeanor conviction, i.e., a conviction for a crime punishable by no incarceration or incarceration for a maximum of 1 year. See Rahmaan v. Lisath, 2006 WL 3306430 (S.D. Ohio 2006). And if the conviction is a misdemeanor conviction, the conviction is per se inadmissible to impeach the witness under Rule 609(a)(1). See, e.g., United States v. Lamb, 99 Fed. Appx. 843 (10th Cir. 2004) (“Because his assault conviction was a misdemeanor, it does not satisfy the requirements of Rule 609(a)(1).”).

Assuming that the subject conviction is a felony conviction, there are three separate balancing tests that could apply to the conviction. First, regardless of the witness being impeached, if the conviction is more than ten years old under Federal Rule of Evidence 609(b), its admissibility is determined by the balancing test prescribed by Rule 609(b)(1). This analysis is contained in the next subsection, subsection F.

Second, if the conviction is not more than ten years old and the witness being impeached is anyone other than the defendant in a criminal trial, under Rule 609(a)(1)(A) the court determines admissibility by applying the standard Rule 403 balancing test under which the conviction is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. This test thus applies to (1) any witness for the prosecution, including the alleged victim; (2) any witness called by a criminal defendant; (3) a civil plaintiff and any witness called by him; and (4) a civil defendant and any witness called by him.

Third, if the conviction is not more than ten years old and the witness being impeached is the criminal defendant, under Rule 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect. According to the Advisory Committee, the reason for this third test is that “the danger that prior convictions will be misused as character evidence is particularly acute when the [criminal] defendant is impeached….”

The way that the modified balancing test provides more protection to criminal defendants than the standard Rule 403 balancing test can be understood by considering the probative value and prejudicial effect that courts balance under Rule 609. The sole probative value of a conviction under Rule 609 is the impeachment value of the conviction i.e., how much bearing the conviction has on the honesty and veracity of the witness. Meanwhile, when the witness is a criminal or civil defendant (or an uncharged co-conspirator or alternate suspect), or, in some cases, a civil plaintiff or alleged victim, the main prejudicial effect of a conviction under Rule 609 is the danger that the jury will misuse the conviction as propensity character evidence. For example, in a battery case involving a claim of self-defense, if the prosecution or civil plaintiff seeks to impeach the defendant, or if the defendant seeks to impeach the alleged victim or civil plaintiff with evidence of a prior battery conviction, the court is concerned that the jury will misuse the conviction to conclude, “Once a batterer, always a batterer,” which is precluded by Federal Rule of Evidence 404.

Of course, the use of a conviction for impeachment purposes can cause other prejudicial effects. Impeachment of a witness with evidence of his prior conviction for a crime could cause the witness “unnecessary embarrassment.” See Advisory Committee’s Note to the 1990 amendment to Federal Rule of Evidence 609. Furthermore, impeaching a witness with certain evidence, such as evidence that he is an illegal alien who was convicted of re-entering the United States illegally, “could result in unfair prejudice to the government’s interest in a fair trial….” See id. When the witness being impeached is not alleged to have engaged in misconduct in the event(s) giving rise to the civil lawsuit or criminal action (e.g., the witness is merely an eyewitness), these other prejudicial effects are the only prejudicial effects because there is no concern that the jury will misuse the conviction as propensity character evidence.

In balancing probative value against prejudicial effect, the vast majority of courts apply a five-factor test, first articulated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976), which considers:

(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness’[s] subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant’s testimony.

(5) The centrality of the credibility issue.

First Factor

Under the first factor, courts consider how much bearing the crime underlying the prior conviction has on the issue of the witness’s honesty and veracity; “the greater the impeachment value, the higher the probative value.” United States v. D’Agata, 646 F. Supp. 390, 391 (E.D. Pa. 1986). Courts typically find that crimes of violence have low probative value because such crimes “have little or no direct bearing on honesty” and are instead thought to result “from a short temper, a combative nature, extreme provocation, or other causes.” United States v. Cueto, 506 F. Supp. 9, 13 (W.D. Okla. 1979). While possession of a controlled substance is thought to have little necessary bearing on veracity, “[p]rior drug-trafficking crimes are generally viewed as having some bearing on veracity.” United States v. Brito, 427 F.3d 53, 64 (1st Cir. 2005) Meanwhile, courts generally find that property crimes such as “[b]urglary and petit larceny have a definite bearing on honesty which is directly related to credibility.” United States v. Brown, 603 F.2d 1022, 1029 (1st Cir. 1979).

Second Factor

Under the second factor, “convictions have more probative value as they become more recent;” United States v. Hayes, 553 F.2d 824, 828 (2nd Cir. 1977); “the older the conviction, the less probative it is on the credibility issue.” United States v. Cook, 608 F.2d 1175, 1194 (9th Cir. 1979). The theory behind this sliding scale approach is that the further a witness is removed from a conviction, the more likely it becomes that he is rehabilitated, meaning that the conviction now tells the court less about his current honesty. See Brewer, 451 F.Supp. at 53. Under this second factor, courts also consider the witness’s subsequent history. When a witness has “continued conflict with the law,” as demonstrated by subsequent convictions, his behavior demonstrates that he was not truly rehabilitated, increasing the probative value of his older convictions. Id.

Third Factor

Under the third factor, the similarity between the crime underlying the witness’s previous conviction and the event(s) giving rise to the civil lawsuit or criminal action is directly related to the conviction’s prejudicial effect: the more similar the past crime and the present event(s), the more prejudicial the prior conviction; the less similar, the less prejudicial. See D’Agata, 646 F.Supp. at 391. While this relationship may at first appear counterintuitive, it makes sense because, again, a conviction under Rule 609 is solely being used for its bearing on the credibility of the witness’s testimony, and cannot be used as propensity character evidence, which is precluded by Federal Rule of Evidence 404. Because the “[a]dmission of evidence of a similar offense often does little to impeach the credibility of a testifying [witness] while undoubtedly prejudicing him…[t]he generally accepted view…is that evidence of similar offenses for impeachment purposes under Rule 609 should be admitted sparingly if at all.” United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir. 1981).

Of course, this analysis only comes into play when the witness being impeached allegedly engaged in misconduct in the event(s) giving rise to the civil lawsuit or criminal action. Assume, for instance, that a defendant is charged with battery and seeks to impeach an eyewitness for the prosecution with evidence of his prior conviction for battery. If the defendant is merely claiming that the eyewitness misperceived the events giving rise to the battery charges, and not that he was a participant in the battery, the similarity between the past conviction and the present charges would be irrelevant. There would be no danger that the jury would misuse the prior conviction to conclude, “Once a batterer, always a batterer” because there is no allegation that the eyewitness took part in the battery. Therefore, courts typically refrain from applying the third factor when the witness being impeached was not allegedly engaged in the subject misconduct.

A minority of courts consider only four factors in determining whether prior convictions are admissible for impeachment purposes. See Impeachable Offenses?, supra, at 1039. These courts analyze this third factor as part of the first factor. See id.

Fourth Factor

Under the fourth factor, courts consider the evidentiary need for the defendant’s testimony and the extent to which he would be deterred from testifying if the prosecution was entitled to impeach him through prior convictions. See United States v. Causey, 9 F.3d 1341, 1344-45 (7th Cir. 1993). In most cases, of course, the defendant’s testimony will be extremely important, making the fourth factor favor exclusion. But as the defendant’s testimony becomes less important, the approved use of his prior conviction(s) for impeachment purposes becomes less prejudicial because the defendant might have reasonable grounds to decide not to testify independent of the fear that the jury will misuse the conviction(s) as propensity character evidence. This would be the case, for example, when the defendant’s state of mind or even his actions are not at issue and/or where the defendant’s testimony would be substantially the same as that of other witnesses.

For example, in Causey, the defendant’s sole defense was that weapons and drugs were seized from his house pursuant to a search warrant that mischaracterized the true identity of a confidential informant. Because this defense had nothing to do with the defendant’s state of mind or his actions, and because anyone could testify about the information contained in the warrant, the Seventh Circuit found that the defendant’s testimony was not especially important, meaning this factor favored admission.

Conversely, when the defendant’s mens rea, something only he can know, is the sole issue at trial, the defendant’s testimony is even more important than usual. In United States v. Paige, 464 F. Supp. 99 (E.D. Pa. 1978), the defendant was charged with knowing receipt and concealment of stolen securities. The defendant was concededly in possession of the stolen securities but claimed that he lacked a knowing mens rea. Accordingly, the court found that the defendant’s case would “be prejudiced severely if he is deterred from testifying from fear that he will be convicted on the basis of a prior crime.”

Although courts differ on the issue, most courts hold that this fourth factor is only relevant for prior convictions of criminal defendants who can choose to exercise their Fifth Amendment privilege against self-incrimination and not testify. Accordingly, most courts do not apply this factor when analyzing the admissibility of convictions for other parties/witnesses. See, e.g., Alfred v. State, 200 WL 1356774 (Tex. App.-Texarkana 2000) (“The third and fourth factors do not apply here because they apply only to a defendant who testifies.”). Other courts, however, find that this fourth factor applies to all parties/witnesses, and they consider the importance of the testimony of each party/witness. See, e.g., Robinson v. Clemons, 1998 WL 151285 (D. Del. 1998).

Fifth Factor

Under the fifth factor, courts consider how central the issue of the witness’s credibility is to the resolution of the case. See Brewer, 451 F.Supp. at 53. As the credibility issue becomes more central to the resolution of the case, the probative value of the conviction for impeachment purposes increases; the less central the credibility issue, the less probative the conviction. See id. at 54. When, as in many trials, the case comes down to the word of one party and his witnesses against the word of the other party and his witnesses, credibility is deemed “extremely important,” rendering past convictions extremely probative. United States v. Rein, 848 F.2d 777, 783 (7th Cir. 1988). This is especially true in trials “based substantially on witness testimony, not necessarily physical evidence.” Malone v. State, 829 So. 2d 1253, 1260 (Miss. App. 2002).

In some cases, however, a witness’s credibility is not particularly central to the resolution of a case, rendering the conviction less probative. For instance, in THK America, Inc. v. NSK, Ltd., 917 F. Supp. 563, 570-71 (N.D. Ill. 1996), the court found that the credibility of the defendant was not especially important to a patent case in which the main issues were validity, infringement, and damages.

Fourth & Fifth Factors

Courts often note that these final two factors counterbalance. See Brewer, 451 F. Supp. at 53. As the testimony of a witness becomes more important, thus increasing the conviction’s prejudicial effect, his credibility typically becomes more central, thus increasing the probative value of the conviction. See id. And when the testimony of a witness becomes less important, thus decreasing the conviction’s prejudicial effect, his credibility typically becomes less central, thus decreasing the probative value of the conviction.

Unfortunately, some courts have misconstrued the fourth factor and erroneously concluded that a conviction becomes more probative, rather than more prejudicial, as the witness’s testimony becomes more important. See, e.g., State v. McNeal, 2012 WL 1658819 (Minn. App. 2012); Colin Miller, Make Me Whole, Take 8: Court Of Appeals Of Minnesota Yet Again Badly Botches The Felony Impeachment Analysis, EvidenceProf, May 22, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/05/mn-609a1-state-v-mcnealnot-reported-in-nw2d-2012-wl-1658819minnapp2012.html.

In these jurisdictions, the fourth and fifth factors will almost always favor admission of the conviction. See id.

Rule 609(a)(1)(A) & Rule 609(a)(1)(B)

By looking at cases applying the analysis of the above four or five factors, we can see the practical effects of the different balancing tests prescribed by Rule 609(a)(1)(B) (for criminal defendants) and Rule 609(a)(1)(A) (for all other parties/witnesses).

In Smith v. Specialty Pool Contractors, 2009 WL 799748 (W.D. Pa. 2009), a civil plaintiff brought an action against his employer, claiming that the employer created a racial and religious hostile work environment. Before trial, the plaintiff filed a motion in limine seeking, inter alia, to preclude the defendant from impeaching him through evidence of his conviction for resisting arrest. The first thing to note about Smith is that, as is often the case when the witness being impeached is not a criminal defendant, the court did not make specific findings on the record with regard to the above five factors. That said, we can make pretty good assumptions of what the court would have found under each factor.

Under the first factor, the conviction for resisting arrest likely had, at most, moderate bearing on the plaintiff’s honesty as a witness, making this factor favor exclusion. Second, the conviction was “approaching the ten-year limitation period provided for in Rule 609(b),” see id., meaning that the second factor also favored exclusion because of the remoteness of the prior conviction. Third, resisting arrest is not at all similar to workplace behavior, so the third factor favored admission because there was little worry that the jury would misuse the prior conviction as propensity character evidence against the plaintiff. Fourth, the plaintiff’s testimony concerning events at the workplace and how he perceived them was extremely important, making the fourth factor favor exclusion. Fifth, the plaintiff’s credibility was highly central to the resolution of his action because the case boiled down to his word against the word of his former bosses and co-workers.

And while the court did not explicitly make these findings, it did note that the admissibility question was a close one, and that the probative value of the conviction was outweighed by its prejudicial effect. See id. The court, however, ultimately deemed the conviction admissible because its probative value was not substantially outweighed by its prejudicial effect, meaning that it satisfied the Rule 403 balancing test.

Now, assume that the plaintiff in Smith attacked one of his co-workers and was charged with battery. The prosecution would not have been able to impeach him with evidence of the conviction because its probative value would not have outweighed its prejudicial effect under Rule 609(a)(1)(B). Indeed, even if the prosecution could have proven that the probative value of the conviction equaled its prejudicial effect, it would not have been good enough.

For instance, take another case from Pennsylvania involving a Smith. In United States v. Smith, 2006 WL 618843 (E.D. Pa. 2006), the defendant was charged with conspiracy to distribute cocaine and related crimes, and the prosecution sought to impeach him with evidence of his prior conviction for simple assault. The Eastern District of Pennsylvania applies the four-factor test under Rule 609. Under the first factor, the court found that assault, a crime of violence, had little bearing on the defendant’s honesty as a witness, making this factor favor exclusion. See id. Under the second factor, the assault conviction was less than one year old, meaning that the second factor favored admission because of its recency. See id. Under the third factor, importance of the defendant’s testimony, the court presumed that “there would be no other way for defendant to present…evidence” proving that he was not part of the charged conspiracy except through his own testimony, making the third factor favor exclusion. See id. Under the fourth factor, centrality of the credibility issue, the court found that “[w]hether or not defendant’s account of events is found credible will be crucial to his case,” meaning that the fourth factor favored admission. Therefore, according to the court, “two [factors] weigh[ed] in favor of admission in this case, and two weigh[ed] against,” meaning that the conviction had to be excluded because probative value merely equaled and did not outweigh prejudicial effect as is required by Rule 609(a)(1)(B).

Indeed, in jurisdictions applying all five factors, it is not surprising to see a court deem a criminal defendant’s prior convictions inadmissible under Rule 609(a)(1)(B) even if 3/5 factors favor admission, especially if the first or third factors strongly favor exclusion. For instance, in United States v. Mahone, 328 F. Supp.2d 77 (D. Me. 2004), a defendant on trial in 2004 for attempted bank robbery and interstate transport of a stolen vehicle brought a motion in limine, which sought, inter alia, to preclude the prosecution from impeaching him through evidence of 4 prior convictions: (1) a 2001 conviction for felony second-degree forgery; (2) a 2001 conviction for felony theft by receiving stolen property; (3) a 2001 conviction for felony aggravated assault; and (4) a 2003 conviction for felony possession of a controlled substance.

The court deemed the forgery conviction per se admissible under Rule 609(a)(2). With regard to the other three convictions, the court found that the second factor favored admission because each conviction was recent, the third factor favored admission because each prior conviction was sufficiently dissimilar to the crime charged, and the fifth factor favored admission because the defendant’s “credibility may be a central issue at trial if he chooses to testify.” And the court found that the fourth factor favored exclusion of each of these three convictions because the defendant’s testimony was very important.

Ultimately, the court found the conviction for theft by receiving stolen property admissible because it reflected on the defendant’s “credibility and veracity,” making the first factor and four out of five (4/5) factors overall favor admissibility. Conversely, the court found the convictions for aggravated assault and possession of a controlled substance inadmissible because they had no bearing on the defendant’s “credibility or veracity,” meaning that they were sorely lacking in probative value under the first factor. In other words, even when the prosecution can establish that three out of five (3/5) factors favor admission, the court can still find that it has failed to fulfill its burden of proving that probative value clearly outweighs prejudicial effect.

There are thus two circumstances in which a conviction is inadmissible against a criminal defendant under Rule 609(a)(1)(B), and yet admissible against any other party or witness under Rule 609(a)(1)(A): (1) when probative value equals or does not clearly outweigh prejudicial effect; or (2) when probative value is outweighed, but not substantially outweighed by prejudicial effect. See United States v. McBride, 19 F.3d 20 (6th Cir. 1994) (“Under [Rule 609(a)(1)(A)], a district court may admit evidence where the probative value is equal to, or even a bit less than, its prejudicial effect.”).

Hypothetical 13: Stacy Howard is convicted of assault and battery of a high and aggravated nature (ABHAN) after a trial in February 2007. Howard unquestionably struck his girlfriend after an argument in his truck, breaking her nose in three places. But, according to Howard, his girlfriend was out of control and he unintentionally hit her while attempting to get a clear view of the road. At trial, the prosecution impeached Howard with evidence of his three prior felony ABHAN convictions from December 2004, April 2004, and November 1995. Howard was released from incarceration for this earliest conviction after February 1997. Was this impeachment proper? See State v. Howard, 720 S.E.2d 511 (S.C. App. 2011). See Colin Miller, Unimpeachable: Supreme Court Of South Carolina Finds Trial Court Conducted Incorrect Felony Impeachment Analysis, EvidenceProf Blog, May 31, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/05/similar-to-its-federal-counterpartsouth-carolina-rule-of-evidence-609a1provides-that-for-the-purpose-of-attacking-the-c-1.html.

Hypothetical 14: Tyrone Saunders brings a civil action against the City of Chicago, the Chicago Police Department, and his arresting officers, seeking damages for excessive force in arrest, assault, and battery. Saunders’ trial will be held in 2004. Before trial, Saunders brings a motion in limine seeking to preclude the defendants from impeaching him through evidence of his 1999 felony conviction for violation of an order of protection, his 1999 felony conviction for domestic battery, and his 1994 felony conviction for possession of a controlled substance. Saunders was released from incarceration for this earliest conviction after 1994. Should the court grant the motion? See Saunders v. City of Chicago, 320 F. Supp. 2d 735 (N.D. Ill. 2004).

F. Federal Rule of Evidence 609(b)

Rule 609(b)

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Assuming that a conviction preliminarily covered by Rule 609(a)(1) or Rule 609(a)(2) is more than ten years old, the fifth question is whether the party seeking to use the conviction can satisfy Rule 609(b). Of course, before answering this question, we have to determine whether the conviction is indeed more than ten years old.

As Rule 609(b) makes clear, the ten-year clock begins with the date of the prior conviction or the date of release, whichever is later. So, if a witness was convicted of a crime more than 10 years before Rule 609(b)’s end date, but was not released from confinement for that crime until 10 years or less before the end date, the date of release would be the “determinative date.” See United States v. Brewer, 451 F. Supp. 50 52 (E.D. Tenn. 1978). Therefore, if a defendant were convicted on January 6, 1968, sentenced on March 22, 1968, and released from incarceration on March 22, 1969, the ten-year clock would start on March 22, 1969 because the date of release would be later than the date of conviction. See id.

On the other hand, if a witness is subjected to pre-trial incarceration on March 10, 2012, made bail on May 10, 2012, and then convicted after trial on June 10, 2012 and sentenced to time served, the date of conviction would be the determinative date because the date of conviction would be later than the date of release. And, of course, if a defendant is convicted and, say, only given a fine and not subjected to confinement, the date of conviction would be the determinative date because there would be no release from confinement. See United States v. Lopez, 979 F.2d 1024, 1033 (5th Cir. 1992).

This leaves the question of what besides incarceration constitutes “confinement” under Rule 609(b). The biggest dispute among courts involves the issue of whether a period of parole or probation constitutes “confinement.” See Colin Miller, Reelin’ In The Years: 11th Circuit Badly Botches Rule 609(b) Analysis, Bypassing “Confinement” Issue, EvidenceProf Blog, April 23, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/04/federal-rule-of-evidence-609bprovides-that-this-subdivision-b-applies-if-more-than-10-years-have-passed-since-the-witnes.html.

In United States v. Gaines, 105 Fed. Appx. 682 (6th Cir. 2004), the Sixth Circuit found that the question under Rule 609(b) is whether “less than ten years had passed since the witness was released from confinement or the period of his parole or probation had expired.” Most courts, however, have found that a period of parole or probation does not constitute “confinement,” including the Seventh Circuit in United States v. Rogers, 542 F.3d 197 (7th Cir. 2008); See Colin Miller, Exchange For His Parole?: Seventh Circuit Find Probation/Parole Periods Don’t Count In Rule 609(b)’s Clock, September 6, 2008; http://lawprofessors.typepad.com/evidenceprof/2008/09/probation-doesn.html.

All courts seem to be in agreement that if a defendant is convicted, paroled before he serves his entire sentence, and then recommitted to serve the rest of his sentence after a parole violation, the determinative date is the date when he finishes serving the remainder of his initial sentence. See Brewer, 451 F. Supp. at 53. In Brewer, the defendant was convicted of kidnapping on October 20, 1960, placed on parole on June 27, 1967, committed a parole violation, sent back to prison, and eventually released from confinement for the kidnapping conviction on February 9, 1976, making February 9, 1976, the date that the Rule 609(b) clock started.

But when does the clock stop, i.e., what is the end date under Rule 609(b)? In its opinion in Clay v. State, 2012 WL 933080 (Ga. 2012), the Supreme Court of Georgia noted that

At least four different end points have been identified by various jurisdictions. See United States v. Cohen, 544 F.2d 781, 784 (5th Cir.1977) (identifying the date trial commenced as the end date); United States v. Coleman, 11 F. Supp. 2d 689, 692 (W.D. Va.1998) (identifying the date the witness testified as the end date); Minnesota v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998) (identifying the date of the new charged offense as the end date); United States v. Maichle, 861 F.2d 178, 181 (8th Cir.1988) (identifying the date of the defendant’s indictment as the end date); See Colin Miller, 10 Years Have Got Behind You: Supreme Court Of Georgia Discusses Different Tests For Remote Conviction Impeachment, EvidenceProf Blog, March 26, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/03/similar-to-itsfederal-counterpartocga-249841bprovides-that-evidence-of-a-conviction-under-subsection-a-of-t.html.

Assume that a defendant is convicted of robbery on March 1, 2000 and released from confinement for that conviction on March 1, 2002. Also assume that the defendant allegedly committed larceny on January 1, 2012, the defendant was indicted for the larceny on February 1, 2012, his trial commenced on April 1, 2012, and he testified on May 1, 2012. Depending upon the jurisdiction, his prior robbery conviction could be (1) 10 years, 2 months old (date the defendant testified); (2) 10 years, 1 month old (date trial commenced); (3) 9 years, 11 months old (date of the indictment); or (4) 9 years, 10 months old (date of the new charged offense) In examples (1) & (2) the larceny conviction would be covered by Rule 609(b); in examples (3) & (4), it would not.

There are three consequences to a conviction being more than 10 years old under Rule 609(b). First, when a party plans to use a conviction or juvenile adjudication to impeach a witness at trial, it is typically under no affirmative obligation to provide notice of this plan before engaging in the impeachment as long as the conviction/adjudication is not more than 10 years old. See United States v. Stewart, 2010 WL 3730122 (W.D.N.Y. 2010). When, however, the conviction/adjudication is more than 10 years old, Rule 609(b)(2) dictates that the party must “give an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.”[11]

Second, when a conviction/adjudication is more than 10 years old, Rule 609(b)(1) flips the typical balancing test that Federal Rule of Evidence 403 prescribes for most other evidence. As noted in the previous subsection, Rule 403 deems most evidence admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Conversely, Rule 609(b)(1) provides that evidence of a conviction/adjudication that is more than 10 years old is only admissible to impeach a witness if “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect…”

Under Rule 609(b)(1), courts typically apply the same four or five factors that they apply for convictions under Rule 609(a)(1). By looking at a case applying these factors, we can see the practical effect of the inverted Rule 403 balancing test contained in Rule 609(b)(1). In Robinson v. Clemons, 1998 WL 151285 (D. Del. 1998), the plaintiff brought a civil action, claiming, inter alia, that the defendants arrested him without probable cause and with excessive force. In response, the defendant brought a motion in limine to impeach the plaintiff through, inter alia, a 15 year-old conviction for falsely reporting an incident. The court found that the first factor favored admission because the prior crime had a strong bearing on the plaintiff’s honesty, the third factor favored admission because the prior crime was not at all similar to the present civil action, and the fifth factor favored admission because the plaintiff’s credibility was central to resolution of the case. Conversely, the court concluded that the second factor militated against admission because the conviction was 15 years old and that the fourth factor cut against admission because the plaintiff’s testimony was very important.

So, three factors favored admission while two factors favored exclusion, meaning that probative value outweighed prejudicial effect. Under the typical Rule 403 balancing test, the prior conviction thus would have been admissible. So, if the plaintiff’s conviction were nine years old, it would have been admissible under Rule 609(a)(1)(A). Indeed, if the prior conviction were nine years old, it would have been admissible even it its probative value equaled its prejudicial effect or if its prejudicial effect outweighed, but did not substantially outweigh, its probative value.

But “a fifteen year-old conviction is not subjected to the normal Rule 403 balancing test.” Id. Instead, it triggered “the stringent reverse Rule 403 balancing test implemented by Rule 609(b),” pursuant to which a conviction/adjudication that is more than 10 years old is only admissible if its probative value substantially outweighs its prejudicial effect. Id. And because the probative value of the plaintiff’s conviction in Clemons outweighed, but did not substantially outweigh its prejudicial effect, the court deemed it inadmissible.

As Clemons makes clear, it is quite difficult for a party to impeach a witness with evidence of a conviction or adjudication that is more than 10 years old. This is consistent with the Advisory Committee’s Note to Rule 609, which states that “It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.” This intent is reflected in the third consequence of a conviction or adjudication being more than 10 years old. As is made clear by the language of Rule 609(b)(1) and the Advisory Committee’s Note, the decision to admit evidence under the Rule must

be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact.

So, in Simpson v. Thomas, 528 F.3d 685, 690 (9th Cir. 2008), the Ninth Circuit found that the district court erred when it curtly concluded that the plaintiff’s 10+ year old convictions were admissible because they would not “be so prejudicial as to outweigh the probative value” for two reasons: (1) it misstated the Rule 609(b)(1) balancing test; and (2) it did not make specific findings on the record.

Hypothetical 15: Jonathan Denton is charged with possession of cocaine. Denton files a motion in limine to preclude the prosecution from impeaching him with evidence of three prior convictions that were more than 10 years old. The trial court rules that

The defendant’s motion in limine as to the possession of stolen goods and the common law robbery and robbery with a dangerous weapon at this time is denied. But I’ll have to conduct a weighing of that when we reach that point in the trial.

At trial, at the close of the State’s evidence, Denton renews his motion, and the court concludes that

[S]ubject to further consideration as to balancing called for by the context in which the questions arise, I’m denying the motion in limine as to the possession of stolen goods, common law robbery and robbery with a dangerous weapon.

On cross-examination, the prosecutor impeaches Denton with evidence of his three prior convictions without objection from defense counsel or anything else said or written by the court. After he is convicted, Denton appeals. Did the trial court act properly? See State v. Denton, 699 S.E.2d 478 (N.C. App. 2010); Colin Miller, State Your Reasoning: Court Of Appeals Of North Carolina Finds Trial Court Failed To Conduct Proper Rule 609(b) Analysis, September 24, 2010; http://lawprofessors.typepad.com/evidenceprof/2010/09/609b-state-v-dentonslip-copy-2010-wl-3633457-tablencapp2010.html.

Hypothetical 16: Michael Sweat is charged with aggravated robbery, and his trial takes place in 2005. Sweat was convicted of burglary in 1984 and escape from prison in 1988, with Sweat being released from prison for both convictions on July 28, 1996. At trial, the prosecution seeks to impeach Sweat through evidence of his prior convictions, leading to the following exchange between the judge and defense counsel:

[DEFENSE COUNSEL]: As I understand that rule in reading it, it appears to me that some of the case law says that you have to look at whether or not the conduct complained of is relevant to the truthfulness in this case.

THE COURT: Yes.

[DEFENSE COUNSEL]: That’s what the rule contemplates. That’s my understanding.

THE COURT: It may be a bit stale, but-all right.

The judge then deems the convictions admissible under Rule 609(b) without making specific findings regarding probative value and prejudicial effect. Did the court act properly? See State v. Sweat, 2010 WL 153038 (Tenn. Crim. App. 2010); Colin Miller, Ten Years Have Got Behind You: Court Of Criminal Appeals Of Tennessee Affirms Felony Conviction Impeachment Ruling BECAUSE Of Timing Calculation Error, EvidenceProf Blog, January 25, 2010; http://lawprofessors.typepad.com/evidenceprof/2010/01/609state-v-sweatslip-copy-2010-wl-153038tenncrimapp2010.html.

Hypothetical 17: Terry Byington is charged with DUI after failing three field sobriety tests and refusing to take a breathalyzer test in December 2001. Specifically, the arresting officer claimed that Byington’s speech was slurred while Byington claimed that his partial dentures caused him to “whistle a lot,” which could have been misperceived as slurring. The officer claimed that Byington failed a one-legged stand test while Byington claimed that he couldn’t stand on one leg because he had three blown discs and a severed nerve. The officer claimed that Byington failed the backwards alphabet test while Byington claimed that he can’t say the alphabet without starting at the beginning. Only Byington and the officer testified at trial. The prosecution seeks to impeach Byington through evidence of his perjury conviction. Byington was released from confinement for that conviction in January 1991. Is evidence of the prior conviction admissible? See State v. Byington, 2010 WL 2812664 (Tenn. Crim. App. 2010); Colin Miller, Ten Years Have Got Behind You: Tennessee Case Is Rare Case In Which Defendant’s Remote Conviction Is Admissible Under Rule 609(b), EvidenceProf Blog, July 2, 2010; http://lawprofessors.typepad.com/evidenceprof/2010/07/609b--state-v-byingtonslip-copy-2010-wl-2812664tenncrimapp2010.html.

Hypothetical 18: Honeywell sells seat belts to the van conversion industry through two distributors. One of those distributors brings an antitrust action against Honeywell, claiming that Honeywell charged it higher prices for the same parts than it charged the other distributor. Honeywell gives pretrial notice that it plans to impeach the distributor’s President through evidence of his conviction for possession with intent to distribute cocaine. Trial will be held in 2001, and the President was released from prison for his prior crime on July 14, 1985. The President’s testimony concerning the meetings leading up to one of its agreements with Honeywell will be essential to the distributor’s case. Should the court deem evidence of the conviction admissible? See Moecker v. Honeywell Intern., Inc., 2001 WL 34098650 (M.D. Fla. 2001).

G. Rule 609 Flowchart

While there are many ways to address Rule 609 issues, the following flowchart is the best way that I have found to address the admissibility of any conviction for impeachment purposes:

Rule 609(c)

(1) Has the conviction been the subject of a pardon, annulment, or equivalent procedure based on a finding of innocence [Rule 609(c)(2)]?

(2) If yes, the conviction is inadmissible.

(3) If no, has the conviction been the subject of a pardon, annulment, certificate of rehabilitation, or equivalent procedure based on a finding of rehabilitation [Rule 609(c)(1)]?

(4) If no, proceed to (8)

(5) If yes, has the witness subsequently been convicted of a felony [Rule 609(c)(1)]?

(6) If no, the conviction is inadmissible.

(7) If yes, proceed to (8)

Rule 609(d)

(8) Is the conviction a juvenile adjudication [Rule 609(d)]?

(9) If no, proceed to (17)

(10) If yes, is the conviction offered in a criminal case [Rule 609(d)(1)]?

(11) If no, the conviction is inadmissible.

(12) If yes, is the conviction offered against a witness other than the defendant [Rule 609(d)(2)]?

(13) If no, the conviction is inadmissible.

(14) If yes, is the conviction necessary to fairly determine guilt or innocence [Rule 609(d)(4)]?

(15) If no, the conviction is inadmissible.

(16) If yes, would an adult’s conviction for the same offense be admissible to attack the adult’s credibility [Rule 609(d)(3)]? Proceed to (17) for the answer.

Rule 609(a)(2)

(17) Can it readily be determined that the prosecution had to prove that the witness committed a dishonest act or false statement to convict him of the prior crime charged [Rule 609(a)(2)]?

(18) If no, proceed to (22)

(19) If yes, have more than 10 years passed since the witness’ conviction or date of release, whichever is later [Rule 609(b)]?

(20) If no, the conviction is per se admissible.

(21) If yes, proceed to (34)

Rule 609(a)(1)

(22) Is the conviction for a felony, a crime punishable by death or imprisonment in excess of 1 year [Rule 609(a)(1)]?

(28) If no, the conviction is inadmissible.

(29) If yes, have more than 10 years passed since the witness’ conviction or date of release, whichever is later [Rule 609(b)]?

(30) If yes, proceed to (34)

(31) If no, is the witness a criminal defendant?

(32) If no, the conviction is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403 [Rule 609(a)(1)(A)].

(33) If yes, the conviction is admissible if its probative value outweighs its prejudicial effect [Rule 609(a)(1)(B)].

Rule 609(b)

(34) Does the conviction’s probative value, supported by specific facts & circumstances substantially outweigh its prejudicial effect [Rule 609(b)(1)]?

(35) If no, or if this balancing didn’t take place on the record, the conviction is inadmissible.

(36) If yes, did the proponent give reasonable written notice of his intent to use the conviction at trial [Rule 609(b)(2)]?

(37) If no, the conviction is inadmissible.

(38) If yes, the conviction is admissible.

Hypothetical 15: Miquel Morrow is charged with conspiracy to commit bank robbery, armed bank robbery, and possession of a semi-assault weapon during a crime of violence. The main witness for the prosecution will be Morrow’s alleged co-conspirator Nourredine Chtaini, who has turned state’s evidence. The trial is expected to take place in June 2005. Chtaini has

(1) a juvenile adjudication for felony theft from 1991, with Chtaini being released before 1995;

(2) a May 24, 1995 juvenile adjudication for weapons possession, which is punishable by up to two years incarceration. Chtaini was given probation on May 24th, with that probation ending on October 2, 1995. This adjudication was expunged under the Youth Rehabilitation Act, 28 C.F.R. 2.106, based upon a finding that Chtaini would derive “no further benefit” from the probation; and

(3) an adult felony theft conviction from November 1995.

Defense counsel has no facts regarding how Chtaini’s two thefts were committed. Morrow files a motion in limine seeking a ruling that he can impeach Chtaini with evidence of these convictions/adjudications. How should the court rule? See United States v. Morrow, 2005 WL 1017827 (D.D.C. 2005).

H. Other Aspects of Rule 609 & Constitutional Considerations

It should be noted that while prior convictions are technically hearsay, they are admissible under the hearsay exception contained in Federal Rule of Evidence 803(22) for judgments of prior convictions. There are five final aspects of Rule 609 that should also be mentioned.

First, Federal Rule of Evidence 609(e) provides that

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Therefore, in In re Slodov, 849 F.2d 610 (6th Cir. 1988), the Sixth Circuit found no problem with the admission of a trustee’s prior embezzlement conviction even though the trustee was currently appealing that conviction. According to the Advisory Committee, “[t]he presumption of correctness which ought to attend judicial proceedings supports the position that pendency of an appeal does not preclude use of a conviction for impeachment.”

Second, in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court addressed the following question: Can a criminal defendant appeal a trial court ruling that his prior conviction(s) will be admissible in the event that he testifies if the defendant eventually decides to exercise his Fifth Amendment privilege and not testify. The Supreme Court concluded that such a defendant could not appeal because, if the defendant did testify, the court could alter its ruling deeming the conviction(s) admissible, or the prosecution could choose not to use the conviction(s), rendering any harm “wholly speculative.” Id. at 41-42.[12] A minority of state courts, however, have found that a criminal defendant can appeal such a ruling, regardless of whether he testifies at trial. See, e.g., Commonwealth v. Crouse, 855 N.E.2d 391, 397 (Mass. 2006) (“It has been our established practice to consider challenges to unfavorable rulings allowing the use of prior convictions, irrespective of whether the defendant actually testified at trial.”).

Third, several courts have held that there is no Constitutional problem with a trial court deferring the question of whether a criminal defendant’s prior conviction(s) will be admissible to impeach him until after the defendant testifies. In other words, in a jurisdiction applying this reasoning and Luce a defendant must make the choice to testify, knowing that his failure to testify means that he cannot appeal, but not knowing whether he can be impeached. In United States v. Masters, 840 F.2d 587, 590 (8th Cir. 1988), for instance, the Eighth Circuit found that the defendant’s choice about whether to testify under such circumstances is simply a matter of trial tactics and not “an issue of constitutional significance.” Some state courts adhere to the Eighth Circuit’s position on deferral but do not apply Luce. These courts do not require the defendant to testify to preserve the issue for appellate review. See, e.g., Dallas v. State, 993 A.2d 655 (Md. 2010); Colin Miller, Impeachable Opinion?: Court Of Appeals Of Maryland Finds Trial Court Properly Deferred Impeachment Ruling Until After Defendant Testified, EvidenceProf Blog, April 30, 2010; http://lawprofessors.typepad.com/evidenceprof/2010/04/609a-defer--dallas-v-state----a2d------2010-wl-1643252md2010.html.

Fourth, in Ohler v. United States, 529 U.S. 753 (2000), the Supreme Court addressed the question of whether a criminal defendant can appeal a trial court ruling that the prosecution can use his prior conviction(s) to impeach him during cross-examination in the event that he testifies if the defendant preempts such cross-examination and testifies about the conviction(s) on direct examination. During typical impeachment, the prosecution can discredit the testimony that the criminal defendant gave on direct examination by revealing his prior conviction(s) to the jury and rigorously questioning him about his prior indiscretion(s) on cross-examination. To circumvent this, a defense attorney may attempt to mitigate the “sting” of such impeachment by gently having the defendant admit to the prior conviction(s) during direct examination and assure the jury that he has since reformed. In Ohler, a majority of the Supreme Court found that the consequence of such a practice is that the defendant waives the issue for appellate review because, again, the prosecution could still have chosen not to impeach the defendant, making any harm speculative. See id. “The majority of state appellate courts to consider the issue, after Ohler, rejected the reasoning of the Ohler Majority.” Cure v. State, 26 A.3d 899, 908 (Md. 2011).

Fifth, at least 16 jurisdictions hold that if a conviction is inadmissible under one of the aforementioned three balancing tests, a party might still be able to impeach a witness through evidence that he has an unspecified prior conviction. See Colin Miller, Unspecified Error, Tale 2: Supreme Court Of Minnesota Reverses Prior Precedent, Allows For Impeachment Through Unspecified Prior Convictions, EvidenceProf, August 31, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/08/609-unspecified-state-v-hill-nw2d-2011-wl-3687535minn2011.html [hereinafter Unspecified]. For instance, in State v. Hill, 801 N.W.2d 646 (Minn. 2011), the court found that the defendant’s prior felony robbery conviction was too similar to the armed robbery charge against him to be fully admissible. The court did, however, allow the prosecution to ask the defendant one question, “Now in September of 2008, you were convicted of a felony, correct?” The Supreme Court of Minnesota found that this single question and the defendant’s answer of “yes” were proper because they precluded the jury from assuming, “Once a robber, always a robber.”

Indeed, at least four states have a rule that the single question asked in Hill is the only question that the party impeaching a witness can ask and that the crime or any of its details cannot be mentioned. See Unspecified, supra. Conversely, at least six jurisdictions preclude a party from impeaching a witness through evidence of an unspecified prior conviction once the court has found that the conviction fails one of the aforementioned three balancing tests. See id.

Hypothetical 16: Detective Dummett pulled over a car driven by Ronald Weaver and eventually recovered 65 rocks of crack cocaine and $600 in cash from James Blakeney, a passenger. Blakeney asked Dummett “if there was anything that [Dummett] could do to just forget about the drugs that [he] had found.” Dummett asked Blakeney what he meant by that. Blakeney responded “that his friend, Ronald Weaver was coming into four hundred thousand dollars from a military type of settlement and he would give [Dummett] some money, just for free, to drop the charges.” Blakeney then turned to Weaver and asked, “How much money are you willing to give him to make this go away?” Weaver replied, “It doesn’t matter to me, whatever it takes.” Blakeney asked Dummett, “Don’t you need a vacation or something?” Dummett responded that he was not interested in a bribe. Blakeney claimed that he was not offering a bribe, but instead it was “just a gift from one black man to another black man.” He urged, “Come on brother, help me out.” Blakeney again mentioned money, turned to Weaver, and said, “We can do that, can’t we?” Weaver responded, “Whatever he wants, we can do it.” Weaver is convicted of bribery of a public official after the prosecution impeaches him at trial with evidence of a prior conviction for possession of drug paraphernalia. After he’s convicted, Weaver appeals, claiming that the trial court erred in allowing this impeachment because he was appealing the prior conviction at the time of trial. Is he correct? See State v. Weaver, 584 S.E.2d 345 (N.C. App. 2003).

Hypothetical 17: Devian Charles Burks is charged with assault. Before trial and again after the State rested, the trial court ruled that the prosecution could impeach Burks with evidence of his five prior felony convictions in the event that he testified. Burks chooses not to testify and later appeals his conviction, claiming that the trial court’s rulings were erroneous. How should the court rule? See Burks v. State, 2008 WL 5341296 (Tex. App.-Houston [14 Dist.] 2008); Colin Miller, To Take The Stand Or Not?: Texas Appeal Reveals That Criminal Defendants Must Testify To Appeal Conviction Impeachment Rulings, EvidenceProf Blog, January 12, 2009; http://lawprofessors.typepad.com/evidenceprof/2009/01/to-take-the-sta.html.

Hypothetical 18: Malik El-Alamin is charged with possession with intent to distribute cocaine base and being a felon in possession of a firearm. Before trial, El-Alamin files a motion in limine seeking to preclude any reference to his 1998 aggravated robbery conviction and 1997 drug conviction. The district court denies the motion, and at trial, rather than allowing the prosecutor to impeach El-Alamin on cross-examination through these convictions, defense counsel had El-Alamin testify about the convictions during his own direct examination. After he is convicted, El-Alamin appeals, claiming that the district court erred in denying his motion in limine. How should the court rule? See United States v. El-Alamin, 574 F.3d 915 (8th Cir. 2009); Colin Miller, Preemptive Strike: Eighth Circuit Finds Defendant’s Testimony On Prior Convictions Waives Ability To Appeal, EvidenceProf Blog, August 5, 2009; http://lawprofessors.typepad.com/evidenceprof/2009/08/609a1us-v-el-alamin----f3d------2009-wl-2366384ca8-minn2009.html.

V. Conviction Impeachment Motions

Some concise examples of motions connected to evidence sought to be admitted or excluded under Rule 609 can be found at:

• Del Webb Communities, Inc. Charles Leslie Partington, 2010 WL 1861217 (D. Nev. 2010) (Opposition to Plaintiff’s Motion in Limine No 3) [Rule 609(a)(2); Rule 609(b); Rule 609(c)];

• Veanus v. Northampton County Prison, 2006 WL 736894 (E.D. Penn. 2006) (Brief of Primecare Medical, Inc. in Opposition to Plaintiff’s Motion in Limine) [Rule 609(a)(1); [Rule 609(a)(2)];

• L.C. v. Pennsylvania Youth Ballet, 2010 WL 1723563 (M.D. Penn. 2010) (Brief of Defendant in Support of Motion to Strike) [Rule 609(d)].

Evidence:

Best Evidence Rule

Version 1

Colin Miller

CALI eLangdell Press 2012

Preface

The Best Evidence Rule, contained in Article X of the Federal Rules of Evidence (Rules 1001-1008) and state counterparts, is a Rule that requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original (or a duplicate) or account for its nonproduction. Through a series of cases and hypotheticals drawn from actual cases, this chapter gives readers a roadmap for how to address any Best Evidence Rule issue in practice.

Best Evidence Rule Chapter

Introductory Note

In 2009, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts decided to “restyle” the Federal Rules of Evidence. The goal in this project was to make the Rules more user friendly rather than to enact substantive changes. At the end of each section of this chapter, there is a side-by-side comparison between the prior language of each Rule in Article X and the language of each new “restyled” Rule. Because the changes were intended to be stylistic only, everything discussed in this chapter should continue to be good law after the “restyled” Rules take effect on December 1, 2011.

I. Historical Origins of the Best Evidence Rule

Pre-Roman inhabitants of England, who were mostly illiterate, placed great importance on ceremony and “viewed written documents affecting property or contractual rights not as mere indicia of those rights, but as the rights themselves.” Cynthia A. DeSilva, California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary Evidence, 30 MCGEORGE L. REV. 646, 648 (1999). While this mindset, dubbed the “medieval mind” by John Henry Wigmore[13] eventually dissipated before disappearing entirely in the early 1800s, it permeated evidence law, setting the stage for both the doctrine of profert in curia[14] and the Best Evidence Rule. In courts of law, the ancient pleading doctrine of profert in curia required a party seeking relief based upon a written instrument to allege that he could produce the original. If a party could not produce the original document when its contents were at issue, he literally lost the rights it allegedly created.

Closely related to the doctrine of profert in curia is the Best Evidence Rule, also known as the Original Document Rule. Under the Best Evidence Rule, first enunciated in Ford v. Hopkins, (1700) 91 Eng. Rep. 250, 250-51 (K.B.), the proponent of evidence concerning the contents of a written document had to produce the original document or account for its nonproduction. See Solomon Salako, Chapter 13: The Hearsay Rule, INSITE LAW MAGAZINE, http://www.insitelawmagazine.com/evidencech13.htm (last visited Jan. 13. 2012). If the proponent could neither produce the original document nor provide a satisfactory reason for its nonproduction, he could not prove the contents of the document through secondary evidence such as witness testimony or a handwritten copy. Courts applied this Best Evidence Rule with an understanding of the central position that the written word occupies in the law and the knowledge that “a slight variation of words may mean a great difference in rights.” Johnson v. Sourignamath, 816 A.2d 631 (2003). The requirement that the proponent of a document produce an original or account for its nonproduction was thus an effort to ensure that a party’s substantive rights were not affected by the possibility of fraud or errors of human transcription and memory attendant in handwritten copies and testimony.

The twentieth century witnessed the invention of new technologies, such as the process of xerography[15], invented by attorney Chester Carlson[16] in 1937, which “revolutionize[d] the document reproduction industry” because originals could now be reproduced, ostensibly without the errors inherent in human transcription. SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1197 (2d Cir. 1981). In response to these new technologies, states began enacting exceptions to the Best Evidence Rule that allowed for the admission of “duplicates” or “duplicate originals” created without manual transcription even when proponents could not account for the nonproduction of originals. These changes paved the way for the eventual adoption of Article X, and specifically Rule 1003, of the Federal Rules of Evidence in 1975.

II. Article X: The Modern Best Evidence Rule

Article X of the Federal Rules of Evidence, consisting of Rules 1001-1008, contains the current Best Evidence Rule; most states have modified their Best Evidence Rules to conform to the Federal Rules.

A. Rule 1002: The Rule’s Scope

Federal Rule of Evidence 1002 contains the Best Evidence Rule: “An original writing, recording, or photograph is required in order to prove its contents unless these rules or a federal statute provides otherwise.” An example of a writing triggering a Best Evidence Rule analysis can be found in United States v. Rivera-Carrizosa, 35 F.3d 573 (9th Cir. 1994), in which the defendant was convicted of unlawful reentry or presence in the United States after deportation. At trial, an agent testified that he reviewed the defendant’s birth certificate from his immigration file and that the certificate stated that the defendant was born in Mexico. Id. On the defendant’s appeal, the Ninth Circuit reversed his conviction because the prosecution did not produce his birth certificate at trial, meaning that the agent’s testimony violated the Best Evidence Rule. Id.

For an example of how the Best Evidence Rule applies to photographs, see United States v. Shores, 93 F. App’x. 868 (6th Cir. 2004), where the defendant was charged with being a felon in possession of a firearm and ammunition. Officers seized the firearm and ammunition during a search of the defendant’s residence, during which they saw, but did not seize, a photograph of the defendant with a holstered revolver that appeared identical to the revolver that they recovered from the defendant’s bedroom. See id. The officers testified regarding the photograph at trial, and the Sixth Circuit found that this testimony would have violated the Best Evidence Rule but for the fact that the defendant was placed on notice of the officers’ testimony and had the photograph in his possession during trial, triggering Federal Rule of Evidence 1004(3), which will be discussed infra. See id.

An example involving a recording can be found in Dyer v. State, 26 So. 3d 700 (Fla. Dist. Ct. App. 2010), in which a defendant was convicted of stealing videos from an adult video store. The prosecution’s main evidence against the defendant was the testimony of the store’s manager who reviewed the surveillance video from the night of the robbery. See id. at 701. Because the prosecution did not produce the surveillance video at trial or satisfactorily account for its nonproduction, the appellate court reversed the defendant’s conviction on appeal, concluding that the manager’s testimony violated the Best Evidence Rule. See id. at 703.

On the other hand, the Best Evidence Rule is inapplicable when a party seeks to admit evidence or testimony that relates to a writing, recording, or photograph, but does not seek to prove its contents. For example, in State v. Clark, 377 S.E.2d 54 (N.C. 1989), the defendant allegedly murdered his wife, and the trial court permitted a witness to testify that she discovered a life insurance policy on the wife’s life in the defendant’s personal belongings although the prosecution did not produce the original policy. On the defendant’s appeal, the Supreme Court of North Carolina affirmed the trial court’s decision, concluding that the witness’ testimony “was offered not to prove contents or terms, but simply to show defendant’s knowledge that the policy existed.” Id. at 60.

Furthermore, “[t]he best-evidence rule does not apply where a party seeks to prove a fact which has an existence independent of any writing, even though the fact might have been reduced to, or is evidenced by, a writing.” JAG Consulting v. Eubanks, 72 S.W.3d 549, 555 (Ark. Ct. App. 2002). For instance, in Eubanks, an Arkansas appellate court found in a shop owner’s lawsuit for conversion of his tools and equipment that the trial court properly permitted his wife to testify about his lost income resulting from the conversion because she had personal knowledge of the lost income. The fact that the wife later used this knowledge to prepare his tax returns did not make her testimony inadmissible pursuant to the Best Evidence Rule even though the plaintiff did not produce the tax returns at trial. See id. at 242.

Finally, when evidence qualifies as a writing and as chattel[17], an item of tangible movable or immovable property, a court has discretion to treat it as chattel and beyond the scope of the Best Evidence Rule. Thus, in United States v. Yamin, 868 F.2d 130 (5th Cir. 1989), a prosecution for conspiracy and trafficking in counterfeit watches, the Fifth Circuit found no error with the admission of testimony by a witness that she purchased watches with counterfeit trademarks from the defendant even though the prosecution did not produce those watches at trial. See id. at 134-35. The Fifth Circuit found that the watches constituted both chattel and writings and that the dangers of inaccuracy and fraud that the Best Evidence Rule are designed to protect against were not implicated by the admission of the testimony because “[t]he viewing of a simple and recognized trademark is not likely to be inaccurately remembered.” Id. This was especially true because the prosecution did produce other counterfeit watches sold by the defendant and seized from the defendant’s store. See id. In United States v. Buchanan, 605 F.3d 518 (8th Cir. 2010), the Eighth Circuit reached the same conclusion with regard to testimony concerning an inscription in a safe. See also Colin Miller, “Safety in Numbers: Eight Circuit Finds Best Evidence Rule Not Triggered by Inscription on Safe.” EVIDENCEPROF BLOG, (May 6, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/05/1002-chattel--us-v-buchanan----f3d------2010-wl-1753346ca8-iowa2010.html

Hypothetical 1

Chris Vagenos files an action pursuant to The Fair Debt Collection Practices Act against LDG Financial Services, LLC, alleging that the company engaged in deceptive practices in connection with the collection of a consumer debt. His claims are based upon a telephone message left on his cell phone by LDG. Vagenos claims, however, that the original message was destroyed when he switched his cellular telephone provider. If Vagenos wants to testify about the contents of the telephone message, does his testimony trigger a Best Evidence Rule analysis? Cf. Vagenos v. LDG Financial Services, LLC, 2009 WL 5219021 (E.D.N.Y. 2009); Colin Miller, “Adverse (Dis)Possession: Eastern District Of New York Order Adverse Inference Instruction In Best Evidence Ruling.” EVIDENCEPROF BLOG, (Jan. 17, 2010), http://lawprofessors.typepad.com/evidenceprof/2010/01/10041-adverse-inference-instructionvagenos-vldg-financial-services-llcslip-copy-2009-wl-5219021edny2009.html.

Hypothetical 2

Dennis is on trial for robbing a bank in Virginia on August 2, 2011 at 3:42 P.M. Dennis’ defense is that it was impossible for him to be robbing a bank in Virginia at that time because he was at a post office in North Carolina mailing a letter on August 2, 2011 at 3:45 P.M. At trial, as Dennis begins to testify about mailing the letter, the prosecutor objects that Dennis’ testimony will violate the Best Evidence Rule because he did not produce the letter at trial. Should the judge sustain the objection?

Hypothetical 3

Joseph Churchill is charged with safecracking and related crimes after allegedly stealing money and checks from a lock-box type safe at Joseppi’s Pizza at 2:25 A.M. Later that morning, Detective Sergeant Dale Parrish viewed a surveillance camera videotape of the parking lot adjacent to the pizza parlor, which showed a van in the lot at 2:24 A.M. that then left approximately 4 minutes later. Parrish later arrested Churchill that same day while he was driving a van. At trial, the prosecution did not introduce the videotape into evidence, but Parrish testified that the vehicle in the video was “a van like the one Churchill was driving.” After he is convicted, Churchill appealed, claiming that this testimony violated the Best Evidence Rule. Is he right? See State v. Churchill, 2002 WL 598315 (Ohio Ct. App. 2002).

Hypothetical 4

Officer Angela Timmerman pulls over a car believed to be involved in a road rage incident. Officer Timmerman asks the driver of the car for his name, and he responds, “Michael Lee Johns.” Officer Timmerman then asks the driver for something to verify his identity, and he gives her a sales receipt for the vehicle, which contains the name “Carl Wiskow.” Officer Timmerman then takes the receipt to her cruiser to run a records check. Before Timmerman can arrest the driver, he starts his car and drives away at a high rate of speed, but Officer Timmerman eventually catches and arrests the driver, who turns out to be Carl Wiskow. Wiskow is charged with fleeing a police officer and giving a false name to the police. At trial, when Officer Timmerman is asked what led her to run the records’ check after she pulled over the driver, she starts to testify regarding the receipt. Defense counsel objects that the prosecution had not offered the receipt into evidence, meaning that the testimony violates the Best Evidence Rule. Should the judge sustain the objection? See State v. Wiskow, 2009 WL 3172156 (Minn. Ct. App. 2009); see also Colin Miller, “Can I Get a Receipt For That?: Court of Appeals of Minnesota Finds Best Evidence Rule Not Violated by Testimony Regarding Receipt Not Offered to Prove its Contents.” EVIDENCEPROF BLOG, (Oct. 7, 2009), http://lawprofessors.typepad.com/evidenceprof/2009/10/best-evidence-receiptstate-of-minnesota-respondent-v-cain-lee-wiskow-appellant----nw2d------2009-wl-3172156minnapp.html.

Hypothetical 5

Store patrons who were arrested after an altercation with store employees at a Wal-Mart brought a Section 1983 claim against Wal-Mart, the city, the police department, and several individual police officers. In response, the defendants move for summary judgment. Wal-Mart has a surveillance video of the altercation, but it does not present it at the summary judgment hearing. Instead, it presents the affidavits of several individuals who were present at the altercation and described what they saw. The patrons claim that these affidavits are inadmissible pursuant to the Best Evidence Rule because the surveillance video is the original, and the defendants have not accounted for its nonproduction. Are they right? See Jackim v. Sam’s East Inc., 2010 WL 2101962 (6th Cir. 2010).

Prior Rules Language:

Restyled Rules Language:

Rule 1002. Requirement of Original

Rule 1002. Requirement of the Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

B. Rule 1001: Defining the Relevant Terms

Federal Rule of Evidence 1001 defines the relevant terms contained in Rule 1002 and sets forth the definition of a “duplicate” as used in Rule 1003. According to Rule 1001(a)-(b), “[a] ‘writing’ consists of letters, words, numbers, or their equivalent set down in any form,” and “[a] recording’ consists of letters, words, numbers, or their equivalent recorded in any manner.” Under this definition, the Best Evidence Rule covers a wide range of evidence, such as title records (See White Indus., Inc. v. Cessna Aircraft Co., 611 F. Supp. 1049 (W.D. Mo. 1985)), claim forms (See United States ex rel. El-Amin v. George Washington Univ., 522 F. Supp. 2d 135 (D.D.C. 2008)), bills (See Oliver v. Sioux City Community School Dist., 389 NW 2d 665 (Iowa 1986)), deeds (See Gleason v. Galvin, 374 Mass. 574, 373 NE.2d 357, (Mass. 1978)), and sound recordings (See Hall v. Texas, 829 S.W.2d 407 (Tex. Ct. App. 1992)).

Moreover, courts have given the phrase “their equivalent” an expansive reading, capturing an even broader range of items under the purview of the Best Evidence Rule. For instance, in Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), the plaintiff, graphic artist Lee Seiler, “claimed that creatures known as ‘Imperial Walkers’[18] which appeared in The Empire Strikes Back infringed Seiler’s copyright on his own creatures called ‘Garthian Striders.’” Seiler, however, did not obtain his copyright until after the movie was released in 1980, but he alleged that he first published his “Garthian Striders” in 1976 and 1977. Id. at 1317-18. At trial, Seiler could not produce his original drawings and instead sought to prove his case through “reconstructions” he created for trial. Id. at 1318. Seiler alleged that the Best Evidence Rule did not apply to his drawings because they did not consist of letters, words, or numbers. Id. at 1318-19. The Ninth Circuit disagreed, finding that his drawings “consist[ed] not of letters, words, or numbers” but of “their equivalents.” Id. at 1318-19. It found that the drawings were “equivalents” because “[j]ust as a contract objectively manifests the subjective intent of the makers, so Seiler’s drawings are objective manifestations of the creative mind.” Id. at 1320.

Federal Rule of Evidence 1001(c) more clearly defines the term “photograph.” According to the Rule, the term “‘photograph’ means a photographic image or its equivalent stored in any form.” Federal Rule of Evidence 1001(d) indicates that “[a]n ‘original’ of a photograph includes the negative or any print from it.” Furthermore, before Rule 1001(d) was restylized, it stated that “if data are stored on a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original.” Therefore, if the proponent of the evidence creates data, such as work logs, not on paper, but on a computer, any printout from the computer is admissible as an original and the proponent does not have to introduce the computer or hard drive at trial. The “output readable by sight” portion of the prior Rule covers evidence such as computer-generated displays.

Rule 1001(d) also defines “[a]n ‘original’ of a writing or recording [as] the writing or recording itself or any counterpart intended to have the same effect by a person who executed or issued it.” Therefore, when a person executes a document such as a contract, will, or deed, the writing that he executed is clearly an original. Moreover, under the Rule there can be multiple originals. To wit, “[i]f each party to a contract, lease, sale or other transaction receives or retains a copy of the instrument that embodies or evidences the transaction, each copy is considered an original, regardless of the mechanism or the chronology of their creation.” Olin Guy Wellborn III, The “Best Evidence” Article of the Texas Rules of Evidence, 18 St. Mary’s L.J. 99, 105 (1986).

Finally, Federal Rule of Evidence 1001(e) defines a “duplicate” as “a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.” Rule 1001(e) thus refers to four kinds of duplicates: “same impression (such as carbon or so-called ‘carbonless’ or ‘formpack’ copies), same matrix (such as offset printing, often called ‘multilith’; stencil duplication or ‘mimeograph’; or hectograph or ‘ditto’), photography (such as micrography or microfiche), and chemical reproduction (such as electrostatic or xerographic ‘photocopies’).” Courts have used the “other equivalent techniques” language of Rule 1001(e) to qualify, inter alia, facsimiles as duplicates. Essentially, then, “any mechanically created reproduction is a duplicate; a manually created production, because of the risk of human error, is not.” Wellborn, supra at 107.

Hypothetical 6

James Kodadeck claims that he made numerous drawings of two cartoon characters called “Beavis and Butthead” in 1991. He alleges that he gave one of the drawings to a man who identified himself as Mike Judge. In 1993, MTV aired a TV show entitled “MTV’s Beavis and Butthead,” with creative credit going to Mike Judge. Kodadeck brings a claim sounding in copyright infringement and unfair competition against Judge. Kodadeck does not produce his 1991 drawings in response to the defendant’s motion for summary judgments, but he does produce illustrations that he drew after the premiere of MTV’s show that allegedly closely approximate his 1991 drawings. Can the illustrations be admitted, or would their admission violate the Best Evidence Rule? Cf. Kodadeck v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998).

Hypothetical 7

Vincent Bennett is charged with possession with intent to distribute and importation of marijuana. At trial, the prosecution wants to have U.S. Customs Officer Malcolm Chandler testify that he discovered a global positioning system (“GPS”) while searching Bennett’s boat and that the GPS revealed that Bennett’s boat had traveled from Mexican waters to the San Diego Bay. Is Chandler’s testimony admissible in the absence of the GPS? See United States v. Bennett, 363 F.3d 947 (9th Cir. 2004).

Hypothetical 8

The Canyon County Prosecuting Attorney files a Petition under the Child Protective Act requesting that the court take jurisdiction over the children of John and Jane Doe. At trial, the prosecution seeks to present several photographs of injuries to the children produced from data downloaded from a camera to a computer system and printed out at the police station. An expert witness testifies that the colors of the prints were not “neutrally balanced” and reflected color biases toward red and yellow hues. Are these prints originals for Best Evidence Rule purposes? See Idaho Dept. of Health and Welfare v. Doe, 2010 WL 4342147 (Idaho Ct. App. 2010); Colin Miller, “Color Me Surprised: Court of Appeals of Idaho Finds No Problem with Color Biased Photos Under Best Evidence Rule.” EVIDENCEPROF BLOG, (Nov. 10, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/11/best-evidence-idaho-dept-of-health-and-welfare-v-doe-p3d-2010-wl-4342147idaho-app2010.html.

Prior Rules Language:

Restyled Rules Language:

Rule 1001. Definitions

Rule 1001. Definitions That Apply to This Article

For purposes of this article the following definitions are applicable:

In this article:

(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.

(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.

(4) Duplicate.  A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.

(c) A “photograph” means a photographic image or its equivalent stored in any form.

(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

(e)  A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

C. Rule 1003: The Duplicate Exception

Federal Rule of Evidence 1003 is consistent with the emerging state trend finding mechanically produced duplicates admissible even when proponents could not account for the nonproduction of originals. It states that “[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” Under Rule 1003, duplicates are thus admissible as long as they can meet the liberal authentication test laid out in Rule 901(a), unless one of the exceptions applies. Every state has either adopted a counterpart to Rule 1003 or some version of the similar Uniform Photographic Copies of Business and Public Records as Evidence Act. 28 USC § 1732.

The exception contained in Federal Rule of Evidence 1003 applies when there are questions about whether the original ever really existed, whether a signature on the original was actually the signature of a party or a forgery, or whether the original was altered before it was copied, such as through photoshopping or the use of white out. See, e.g., Opals on Ice Lingerie v. Bodylines, Inc., 320 F.3d 362, 371 (2nd Cir. 2003) (“Bodylines contends that Opals ‘whited out’ the note below Sautter’s signature…Accordingly, Bodylines has raised a genuine question as to the authenticity of the original.”)

For instance, in Boswell v. Jasperson, 266 F. Supp. 2d 1314 (D. Utah 2003), in 1974, Marsden and Melva Larsen sold land, including a feed yard, to Garth Boswell. Garth later obtained loans on the property from the Zions First National Bank and the Farmers Home Administration. Id. at 1316. In 1983, Garth filed a bankruptcy petition, which listed the feed yard as part of his real estate property holdings, and his son, William P. Boswell, sought to establish that he had an ownership interest in the feed yard. Id. As support for his claim, William introduced an alleged copy of the original deed from the Larsens to his father, which he claimed was altered with the consent of all parties “to substitute his name, William P. Boswell and his d/b/a Rafter ‘B’ Ranch, as grantees.” Id. William admitted, however, that the loan holders were never notified of this alleged alteration. Id. Meanwhile, Garth contradicted himself, alternatively contending that the original deed was and was not altered. Id. at 1316-17. Although the court failed to set forth a test for determining whether there was a genuine question raised as to the original’s authenticity, it concluded that “there [wa]s a genuine question as to the authenticity of the proffered altered deed.” Id. at 1321.

That said, it is the rare case in which a court has found that an opposing party has successfully raised a genuine question concerning the authenticity of an original. See Wellborn, supra at 114. For example, in Alderson v. Bonner, 132 P.3d 1261, 1264-66, the Idaho Appellate Court found no problem with the prosecution’s introduction of a 35-minute copy of a videotape despite the fact that the officer who made the copy previously reported that the original video was 45 minutes long. In Amin v. Flagston Hospitality Mgmt., 2005 WL 3054599 (D. Minn. 2005), the court found no problem with the admission of a copy of a declaration that a witness denied signing despite the fact that the last page of the copy had printing across the top indicative of a fax while the rest of the document did not.

The second exception contained in Rule 1003 applies where only part of an original document or recording is reproduced in a duplicate, and the remainder is needed for some purpose cross-examination. Courts have consistently found that the second exception contained in Rule 1003 applies when duplicates fail to fully reproduce important or critical parts of an original document or recording. Such was the case in Amoco Production Co. v. United States, 619 F.2d 1383 (10th Cir. 1980), in which the Tenth Circuit found that the district court properly excluded the photocopy of a deed that did not reproduce the reservation clause.

Hypothetical 9

E.G. Lewis purchases a car and reaches an oral agreement with Edward Smith, under which Smith and his wife will pay Lewis $222 in exchange for use of the car. Lewis claims that this oral agreement was later reduced to a written contract under which the Smiths would continue paying him $222 a month until his car loan was paid off. Smith claims that he never signed such an agreement and that he only agreed to make the monthly payment as long as he needed the car. Lewis sues Smith for breach of contract and produces a photocopy of the alleged written contract at trial. His handwriting expert compared the signature on the photocopy with other documents signed by Smith and testified that the signature on the photocopy was “probably” by Smith but he could not be sure without examining the original. The expert testified that it is possible to scan a signature on to a document but that he found no evidence of tampering. But he also found that the signature on the photocopy was not an exact match with any of Smith’s other signatures that he examined. Is the photocopy admissible? See Lewis v. Smith, 2003 WL 578619 (Ohio Ct. App. 2003).

Hypothetical 10

John Galvan, a USPS employee, is injured on February 11, 2004, after a chair and table apparatus he was seated in collapsed. Galvin brings a negligence and strict liability action against Krueger International Inc., the manufacturer of the chair and table apparatus. Krueger brings a motion for summary judgment dismissing the complaint, claiming that Illinois product liability statute of repose, which prevents a plaintiff from bringing a strict product liability claim ten years after the date that the product was sold, expired on December 3, 2003. In support, Krueger presents photocopies of invoices and shipping manifests indicating that Krueger’s chair table apparatus was scheduled to arrive at Galvan’s USPS office in December 3, 1993. Galvan counters that these photocopies violate the Best Evidence Rule because they only reproduce the fronts of these invoices and shipping manifests and not the backs, which contain terms and conditions. Galvan claims that these backs could alter the court’s decision. Is Galvan correct? See Galvan v. Krueger International Inc., 2011 WL 111576 (N.D. Ill. 2011).

Prior Rules Language:

Restyled Rules Language:

Rule 1003. Admissibility of Duplicates

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

D. Rule 1004: Excusing Nonproduction of Originals

Federal Rule of Evidence 1004 states that there are four circumstances under which the proponent of evidence concerning the contents of a writing, recording, or photograph is not required to produce the original and instead can prove its contents through secondary evidence. Secondary evidence includes any type of evidence besides the original, “ranging from photographs and handwritten copies to oral testimony of a witness whose credibility is suspect.” United States v. Gerhart. 538 F.2d 807 (8th Cir. 1976). Indeed, courts have even held that when the opponent of a duplicate has made a successful challenge to it under Rule 1003, the proponent can still introduce the “duplicate” if he establishes one of the Rule 1004 circumstances. Furthermore, courts have relied upon the Advisory Committee’s Note to Rule 1004 in concluding that there are no “degrees” of secondary evidence. Accordingly, once the proponent meets his burden of proof in establishing one of the Rule 1004 circumstances, he is free to submit any type of secondary evidence; there is no requirement, for instance, that a “copy be introduced in preference to…oral testimony” on the ground that the former is ‘better’ evidence. Unfortunately, while most courts have placed the burden of proof on proponents to establish one of the Rule 1004 circumstances, they have consistently failed to flesh out the nature of that burden.

The first circumstance is triggered under Rule 1004(a) when “[a]ll originals are lost or have been destroyed, and not by the proponent acting in bad faith.” An example of this circumstance can be found in United States v. McMahon, 938 F.2d 1501 (1st Cir. 1991), where the First Circuit found that the district court properly allowed testimony about the contents of a note allegedly written by the defendant. The court came to this conclusion under Rule 1004(a) because the defendant did “not suggest that the government lost or destroyed the document in bad faith.” It is a difficult task for the opponent of secondary evidence to prove that the proponent of secondary evidence lost or destroyed the original in bad faith. Courts have determined that the proponents of secondary evidence satisfied Rule 1004(a) even when they acknowledged negligently destroying documents (See Estate of Gryder v. CIR, 705 F.2d 336 (8th Cir. 1983)), using a process to copy a tape which they knew would destroy the original (See United States v. Balzano, 687 F.2d 6 (1st Cir. 1982)), and erasing tapes in the ordinary course of business (See United States v. Workinger, 90 F.3d 1409 (9th Cir. 1996)).

Furthermore, a couple of recent court decisions have heightened the hurdle the opponents of secondary evidence must leap in opposing the admission of secondary evidence pursuant to Rule 1004(a). As noted, courts typically require the proponent of secondary evidence to establish one of the Rule 1004 circumstances such as proving that the original was lost or destroyed without bad faith. In two 2007 decisions, however, the District Court for the Eastern District of Michigan indicated that the opponent of secondary evidence “has the burden of establishing bad faith” under Rule 1004(a), shifting the burden from the proponent to the opponent. See United States v. Culberson, 2007 WL 1452902 (E.D. Mich. 2007); United States v. Culberson, 2007 WL 1266131 (E.D. Mich. 2007).

The second circumstance applies under Rule 1004(b) when “an original cannot be obtained by any available judicial process.” For instance, in Allegra v. Bowen, 670 F. Supp. 465 (E.D.N.Y. 1987), the plaintiff applied for disability insurance because she allegedly suffered from muscular dystrophy since early childhood. The plaintiff claimed that her childhood physician in Italy diagnosed her with this condition and attempted to prove this diagnosis through a sworn physician’s letter rather than the original clinical documents in which the diagnosis was made. Id. at 468. An Administrative Law Judge denied the plaintiff’s application, finding that the letter was inadmissible under the Best Evidence Rule, but the District Court for the Eastern District of New York reversed, concluding that the original clinical documents were unobtainable “by available process or procedure” under Rule 1004(b) because they were Italy, allowing the plaintiff to prove their contents through secondary evidence such as the letter. Id. at 468-69. Courts have made clear that the proponents of secondary evidence need not take Herculean efforts to try to obtain the original for Rule 1004(b) to apply. When, however, proponents of duplicates fail to engage in “diligent” efforts to establish that originals are lost, destroyed, or unobtainable, courts will find that they cannot introduce secondary evidence pursuant to Rule 1004(a) or 1004(b).

The third circumstance applies under Rule 1004(c) when “the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing.” The District Court for the Eastern District of California found this portion of the Rule applied in United States v. Cuesta, 2997 WL 2729853 (E.D. Cal. 2007), where the defendant appealed his conviction for being a minor knowingly driving a vehicle containing alcohol. At the defendant’s trial, the prosecution requested that the defendant produce his driver’s license to prove his age, but he refused; thereafter, the magistrate judge allowed the prosecution to call the ranger who arrested the defendant to testify as to the defendant’s date of birth on his driver’s license. Id. at *20. The court rejected the defendant’s argument that this testimony violated the Best Evidence Rule, finding pursuant to Rule 1004(c) that the driver’s license was in the defendant’s possession and that he failed to produce it at his trial. Id.

Finally, under the “collateral matters” circumstance enunciated in Rule 1004(d), secondary evidence is admissible when “[t]he writing, recording, or photograph is not closely related to a controlling issue.” In Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), a movie theater patron who was arrested for public intoxication and resisting arrest brought a Section 1983 action against the municipality and his arresting officer for excessive force. On appeal, after the district court awarded damages to the plaintiff, the arresting officer alleged that the district court erred by allowing Jackson to question a witness about the contents of a flyer describing the arrest and “asking any witnesses to contact the person named on the flyer.” Id. at 1109-10. The Eighth Circuit determined that the Best Evidence Rule did not preclude the testimony despite the nonproduction of the flyer because, inter alia, the contents of the flyer were “collateral to the principal issue in the trial.” Id. at 1110.

Hypothetical 11

Keith Lanzon is charged with attempting to persuade, entice, or coerce a minor to engage in sexual activity after he allegedly sent instant messages to an undercover officer posing as a 14 year-old girl. The government produced transcripts of these messages before they were deleted after the agent logged out of the instant message program. At trial, when the prosecution seeks to admit the transcripts at trial, Lanzon objects that their admission would violate the Best Evidence Rule. Should his objection be sustained? See United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011); Colin Miller, “Word Perfect?: 11th Circuit Finds Prosecution Properly Authenticated IMs Cut-and-Pasted Into Word Document.” EVIDENCEPROF BLOG, (May 7, 2011) http://lawprofessors.typepad.com/evidenceprof/2011/05/text-message-word-authenticate-us-v-lanzon-f3d-2011-wl-1662901ca11-fla2011.html.

Hypothetical 12

Kevin Murray met with Police Chief Vincent Carlone to arrange a controlled purchase of cocaine from John Grullon. The police supplied Murray with a $100 bill to purchase the cocaine. At a meeting at Grullon’s condominium, Grullon agreed to sell Murray a small amount of cocaine for $60, which Grullon retrieved from the hemline of a curtain covering a sliding glass door. Murray paid Grullon with the $100 bill and received $40 in change plus a bag of cocaine. Grullon is charged with possession with intent to distribute cocaine. At trial, the prosecution claims that by the time the police obtained a search warrant, Grullon had already used the $100 bill, so it was in general circulation and could not be recovered. The prosecution seeks to admit a photocopy of the front side of the $100 bill under Rule 1003, but the court deems it inadmissible under Rule 1003(2) because the photocopy fails to completely reproduce the original. Can the prosecution still get the photocopy admitted? See State v. Grullon, 984 A.2d 46 (R.I. 2009); Colin Miller, “Better Evidence or Best Evidence?: Supreme Court of Rhode Island Engages in Detailed Analysis of Best Evidence Rule.” EVIDENCEPROF BLOG, (Jan. 10, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/01/ristate-v-grullon----a2d------2009-wl-4722264ri2009.html.

Hypothetical 13

Tim Cooper reached an agreement with Publishing Group, pursuant to which Publishing Group would print an advertisement for Cooper’s financial planning business in one of its magazines. A Publishing Group employee mailed a copy of the agreement to Cooper, who signed it and faxed it back to Publishing Group. Cooper retained possession of the original agreement. Publishing Group printed the advertisement in the November/December issue of the magazine, and when Cooper failed to pay for the advertisement, Publishing Group sued Cooper for breach of contract. Cooper’s defense was that the agreement he signed provided that if he did not pay for the advertisement by October 2nd, Publishing Group would not print it and both parties would be relieved from their obligation to perform under the agreement. Publishing Group does not produce the agreement at trial but does have several of its employees testify concerning the terms of the agreement. Cooper claims that this testimony violated the Best Evidence Rule. Is he right? See Publishing Group, Ltd. v. Cooper, 2011 Ohio 2872 (Ohio Ct. App. 2011).

Hypothetical 14

David Winn is charged with aggravated burglary and related crimes based upon a burglary at the house of Treva Hummons. Winn admits to committing the burglary but claims that he committed it under duress. At trial, several witnesses testify that Winn was friends with Hummons’ grandson. The prosecution also introduces into evidence a crime scene photograph of Hummons’ living room. In the photograph, there is a barely visible photograph on top of Hummons’ television. The girlfriend of Hummons’ grandson testifies that the photograph is a photograph of Winn and Hummons’ grandson. Winn objects that this testimony violates the Best Evidence Rule because the prosecution did not produce this second photograph at trial. Should the court sustain his objection? See State v. Winn, 877 N.E.2d 1020 (Ohio Ct. App. 2007).

Prior Rules Language:

Restyled Rules Language:

Rule 1004. Admissibility of Other Evidence of Contents

Rule 1004. Admissibility of Other Evidence of Content

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters.  The writing, recording, or photograph is not closely related to a controlling issue.

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

(b) an original cannot be obtained by any available judicial process;

(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(d)  the writing, recording, or photograph is not closely related to a controlling issue.

E. Rule 1005: Public Records

Federal Rule of Evidence 1005 covers public records and indicates that “[t]he proponent may use a copy to prove the content of an official record – or of a document that was recorded or filed in a public office as authorized by law – if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original.” Rule 1005 also provides that “[i]f no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.” In other words, the proponent can introduce a properly certified copy of a public record without accounting for the original, and, if a public record is lost or destroyed without bad faith or is not available through any judicial process, the proponent may prove its contents through secondary evidence, similar to the way that secondary evidence can be offered pursuant to Rule 1004(a) and (b).

Hypothetical 15

James Phillips, a partner at a law firm, is charged with willingly making a false statement to a federal agent and immigration fraud. According to the prosecution, Phillips forged signatures on forms called “Applications for Alien Employment Certifications” or “ETA-750s,” the means by which foreign workers initiate the process to obtain an employment-based visa from the United States Department of Labor. At trial, the prosecution seeks to introduce handwritten copies of these ETA-750s, claiming that the United States Citizenship and Immigration Office in Nebraska had such a high backlog of ETA-750 applications following the Legal Immigration Family Equity Act deadline that it was forced to ship many ETA-750s, including those coming from Phillips’ firm, to the Dallas office. The prosecution claims that these forms were not recoverable from the Dallas office before trial. Are the handwritten copies admissible? See United States v. Phillips, 543 F.3d 1197 (10th Cir. 2008).

Prior Rules Language:

Restyled Rules Language:

Rule 1005. Public Records

Rule 1005. Copies of Public Records to Prove Content

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

F. Rule 1006: Summaries

Federal Rule of Evidence 1006 states that “[t]he proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” For this rule to apply, however, the proponent must make the originals or duplicates “available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.” Rule 1006 is thus not an exception to the rule that proponents must produce originals or duplicates pursuant to Rules 1002 and 1003; instead, it merely states that proponents who have already made lengthy originals or duplicates available for examination, copying, or both can later prove their contents through charts, summaries, or calculations. Finally, it is important to note that courts have found that under Rule 1006, proponents merely must make the originals or duplicates available for examination and/or copying; no such obligation applies with regard to the charts, summaries, or calculations admitted under the Rule. See, e.g., Colon-Fontanez v. Municipality of San Juan, 2011 WL 4823189 at *8 (1st Cir. 2011) (“Regarding Colón’s first argument, Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party.”)

Hypothetical 16

Mark Isaacs is charged with fraudulently using unauthorized access devices. 15 months before trial, the prosecution provides defense counsel with CDs containing underlying data connecting Isaacs with the crime charged. Three days before trial, the prosecution provides defense counsel with a new set of CDs containing the same underlying data. The prosecution produced this new set of CDs before trial because the earlier set of CDs contained extraneous and inadmissible information, and one set of data lists was difficult to read. The new CDs contained 25,000 pages of underlying data. At trial, the prosecution sought to introduce summary exhibits created from the new sets of CD’s. Defense counsel objects that the prosecution failed to comply with Rule 1006. Is he correct? See United States v. Isaacs, 2010 WL 252278 (7th Cir. 2010); Colin Miller, “Reasonable Doubt: Seventh Circuit Finds That Data Disclosure Was Reasonable for Rule 1006 Purposes.” EVIDENCEPROF BLOG, (Feb. 2, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/02/1006us-v-isaacs----f3d------2010-wl-252278ca7-ill2010.html.

Prior Rules Language:

Restyled Rules Language:

Rule 1006. Summaries

Rule 1006. Summaries to Prove Content

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

G. Rule 1007: Admissions

Federal Rule of Evidence 1007 allows for proof of the contents of a writing, recording, or photograph “by the testimony, deposition, or written statement of the party against whom the evidence is offered.” As an example, in Vigil v. Division of Child and Family Services, 107 P.3d 716 (Utah Ct. App. 2005), an issue at the trial of David R. Vigil was whether he possessed material harmful to a child in his home. At trial, a detective gave testimony and introduced into evidence a report concerning the contents of pornographic magazines and photographs seized from Vigil’s house pursuant to a search warrant. Id. at 719. On appeal, Vigil claimed that the testimony and report violated the Best Evidence Rule because the magazines and photographs were not produced. Id. The Court of Appeals of Utah rejected this argument, noting that Vigil “testified at trial that he had Playboy magazines and some videotapes that could be considered pornographic in [his] house.” Id. Because Playboy magazine met the definition of material considered harmful to a child pursuant to the Division of Child and Family Services Manual, the court found that Virgil had admitted the contents of the seized items pursuant to Rule 1007, precluding any Best Evidence objection. Id.

Hypothetical 17:

Joseph Koncel is on trial for first-degree murder and first-degree kidnapping. After Koncel was arrested in connection with these crimes, officers interrogated Koncel, who made several incriminatory statements. The interrogation was recorded, but the prosecution only introduced a written transcription of the audiotape of the interrogation at trial, rather than the audiotape itself. After he was convicted, Koncel appealed, claiming that he received the ineffective assistance of counsel because the transcript was inadmissible under the Best Evidence Rule, yet his attorney failed to object to its admission. Koncel’s attorney responds that, at the time that the transcript was admitted, Koncel planned to testify, and the attorney believed that the substance of the statements in the transcript would be admitted through Koncel’s own testimony. Will Koncel be successful? See Koncel v. State, 2009 WL 4842502 (Iowa Ct. App. 2009); Colin Miller, The Price of Admission: Court of Appeals of Iowa’s Best Evidence Ruling Depends Upon Rule 1007 but Doesn’t Cite it. EVIDENCEPROF BLOG, (Jan. 6, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/01/best-evidencekoncel-v-stateslip-copy-2009-wl-4842502-tableiowa-app2009.html.

Prior Rules Language:

Restyled Rules Language:

Rule 1007. Testimony or Written Admission of Party

Rule 1007. Testimony or Statement of a Party to Prove Content

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

H. Rule 1008: Functions of the Court and Jury

Federal Rule of Evidence 1008 sets forth the respective functions of the judge and the jury in applying the Best Evidence Rule. Rule 1008 indicates that the judge must resolve preliminary issues of fact in accordance with Federal Rule of Evidence 104 while it is for the jury to determine whether “(a) an asserted writing, recording, or photograph ever existed, or (b) another one produced at the trial or hearing is the original; or (c) other evidence of content accurately reflects the content.” The Advisory Committee specifically noted that “the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge” to resolve as a preliminary issue of fact. Commentators and judges have determined that the issue of whether the party opposing the admission of a duplicate has raised a genuine question as to the authenticity of the original under 1003 is also a preliminary issue of fact to be resolved by the judge.

Hypothetical 18

A former tenant sues Andrew Klopman, his former landlord, for personal injuries connected to exposure to lead paint at the property the tenant rented from Klopman. Klopman brings a declaratory judgment action against Zurich American Insurance Company of Illinois, seeking a declaration that the insurance company is obligated to defend and indemnify him in the lead paint lawsuit pursuant to his insurance policy. The insurance company claims that it never issued such an insurance policy to him, and Klopman claims that the insurance policy was destroyed in a basement flood, meaning that he can testify about the contents of the policy pursuant to Rule 1004(a). The action proceeds to a jury trial. Who decides whether the insurance company issued a policy to Klopman, the judge or the jury? Cf. Klopman v. Zurich American Ins. Co. of Illinois, 233 Fed. App’x. 256 (4th Cir. 2007).

Hypothetical 19

Gary Hermsdorf is charged with Medicaid fraud based upon billing the New Hampshire Division of Health and Human Services as if brand-name drugs had been dispensed when he in fact dispensed generic drugs to customers. Undercover members of the New Hampshire Attorney General’s Medicaid Fraud Control Unit bought drugs from Hermsdorf, and an investigator with the Unit took notes regarding whether the labels on those drugs classify the drugs as brand name or generic and compares those notes with the bills submitted by Hermsdorf. At Hermsdorf’s jury trial, the prosecution seeks to admit the notes under Rule 1004(a)v, claiming that it lost the original labels in good faith. Hermsdorf counters that the labels were lost in bad faith. Who decides the question of whether the notes are admissible, the judge or the jury? See State v. Hermsdorf, 605 A.2d 1045 (N.H. 1992).

Prior Rules Language:

Restyled Rules Language:

Rule 1008. Functions of Court and Jury

Rule 1008. Functions of the Court and Jury

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

I. The Best Evidence Framework

Article X, consisting of Rules 1001-1008, thus sets up the following framework for how a party can prove the contents of a writing, recording, or photograph. First, if the party produces the original at trial, it can introduce it consistent with Federal Rule of Evidence 1002. Second, if the party does not have the original, it can introduce a “duplicate” that satisfies Federal Rule of Evidence 1003, even if it cannot account for its nonproduction of the original; alternatively, if the original is a public record, the party can introduce a certified copy in compliance with Rule 1005. Third, if the party cannot produce the original or a “duplicate,” but it can account for the nonproduction of the original under Rule 1004(a), (b), or (c), it can prove its contents through any type of secondary evidence; moreover, if the party can prove that the original is not closely related to a controlling issue, it can do the same under Rule 1004(d). Furthermore, if the original is a public record, and the party cannot obtain a certified copy of it, the party can prove its contents through secondary evidence pursuant to Rule 1005. Fourth, if the party does not produce the original or a “duplicate” and cannot account for the original’s nonproduction, it may still be able to prove its contents through admissions by the opposing party under Rule 1007.

J. Best Evidence Pleadings

Some concise examples of motions connected to evidence sought to be admitted or excluded under the Best Evidence Rule can be found at:

• Autochina Limited v. Huang, 2009 WL 5566956 (S.D. Fla. 2009) (motion in limine);

• Autochina Limited v. Huang, 2009 WL 5566960 (S.D. Fla. 2009) (response to motion in limine); and

• Autochina Limited v. Huang, 2009 WL 5566949 (S.D. Fla. 2009) (reply to response to motion in limine).

Footnotes

1 Courts also allowed parties to present character evidence, not to prove character, but to prove other purposes, such as motive, intent, and knowledge. This common law practice was eventually codified in Federal Rule of Evidence 404(b) and state counterparts and will not be addressed in this chapter.

2 Some states have exceptions to their character evidence rules, pursuant to which prosecutors in domestic violence cases can present evidence of prior acts of domestic violence by a defendant before the defendant injects the issue of character into trial. See, e.g., Colin Miller, A Matter Of Character: Alaska Case Reveals State’s Domestic Violence Character Evidence Exception, EvidenceProf Blog, May 30, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/05/alaska-404b4-jackson-v-statenot-reported-in-p3d-2011-wl-2084075alaska-app2011.html.

3 Some states do not allow defendants to attack the character of alleged victims. See, .e.g, Colin Miller, Character of the Matter: Michigan Case Reveals Different Character Rules for Crime Victims, EvidenceProf Blog, February 23, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/02/federal-rule-of-evidence-404a2bprovides-that-subject-to-the-limitations-in-rule-412-a-defendant-may-offer-evidence-of.html.

4 While reputation is technically hearsay because it is the aggregation of the statements of several individuals offered to prove that truth of the matter asserted (e.g., that the victim was violent), they are admissible under Federal Rule of Evidence 803(21), which provides an exception to the rule against hearsay for “[a] reputation among a person’s associates or in the community concerning the person’s character.”

5 The First Circuit was confronted with a case-in-chief waiver in United States v. Newbert, 504 F.3d 180 (1st Cir. 2007), but found that the waiver was not triggered.

6 Colin Miller, New Zealand’s New Rule?: NZ’s Justice Ministry Proposes Rape Shield, EvidenceProf Blog (Aug. 27, 2008) http://lawprofessors.typepad.com/evidenceprof/2008/08/nz-rape-httpwww.html.

7 Jason M. Price, Constitutional Law—Sex, Lies and Rape Shield Statutes: The Constitutionality of Interpreting Rape Shield Statutes to Exclude Evidence Relating to the Victim’s Motive to Fabricate, 18 W. New Eng. L. Rev. 541 (1996), http://digitalcommons.law.wne.edu/lawreview/vol18/iss2/5

8 The court’s order is available as a PDF at: http://www.courts.state.co.us/userfiles/File/Court_Probation/5th_Judicial_District/Cases_of_Interest/People_v_Bryant/07-04/ShieldOrder.pdf

9 In State v. Jones, 2012 WL 2368839 (Minn.App. 2012), however, the Court of Appeals of Minnesota found that an extended-jurisdiction juvenile adjudication by a juvenile court was not a “juvenile adjudication for Rule 6099d) purposes. See Colin Miller, It’s So Juvenile: Court Of Appeals Of Minnesota Finds An Extended-Jurisdiction Juvenile Adjudication Not Covered By Rule 609(d), EvidenceProf Blog, July 9, 2012; http://lawprofessors.typepad.com/evidenceprof/2012/07/ejj-609d-state-of-minnesota-respondent-v-prince-antonio-jones-appellant-nw2d-2012-wl-2368839minnapp2012.html.

10 Most states still deem convictions per se admissible under their counterparts to the federal rule as long as they are for crimes “involving dishonesty or false statement.” See, e.g., Washington Rule of Evidence 609(a)(2).

11 Some state counterparts do not contain this notice requirement. See Colin Miller, Going Unnoticed: Texas Appeal Illustrates Difference Between Texas And Federal Rule Of Evidence 609(b), EvidenceProf Blog, June 23, 2009; http://lawprofessors.typepad.com/evidenceprof/2009/06/609-txkeelan-gore-appellant-v-the-state-of-texas-appellee----sw3d------2009-wl-1688196texapp-hous-1-dist2009.html.

12 Most federal circuit courts have held that the rationale of Luce extends to any ruling allowing for any type of impeachment or refusing to limit the scope of cross-examination. See Colin Miller, Self Preservation Instinct: 3rd Circuit Finds Defendant’s Failure To Testify Precludes Review Of Cross-X Ruling, EvidenceProf Blog, August 14, 2011; http://lawprofessors.typepad.com/evidenceprof/2011/08/611-luce-us-v-ferrerslip-copy-2011-wl-3468319ca3-pa2011.html.

13 See John Henry Wigmore, WIKIPEDIA, http://en.wikipedia.org/wiki/John_Henry_Wigmore (last visited Jan. 13, 2012).

14 See Definition of Profert in Curia L, BLACK’S LAW DICTIONARY, http://blackslawdictionary.org/profert-in-curia-l/ (last visited Jan 13, 2012).

15 See Xerography, WIKIPEDIA, http://en.wikipedia.org/wiki/Xerography (last visited Jan. 13, 2012).

16 See Chester Carlson, WIKIPEDIA, http://en.wikipedia.org/wiki/Chester_Carlson (last visited Jan. 13, 2012).

17 For definition see Chattel, LEGAL INFORMATION INSTITUTE’S WEX, http://www.law.cornell.edu/wex/chattel (last visited Jan. 17, 2012).

18 For image see Walker (Star Wars), WIKIPEDIA, http://en.wikipedia.org/wiki/Walker_%28Star_Wars%29 (last visited Jan. 17, 2012).