Evidence Outline - Professor Tilly - Campbell Law - Part 16

Preserving right to appeal under Rule 609. In order to raise and preserve for review the claim of improper impeachment with prior conviction, a defendant must testify

• In limine ruling where D tried to excuse the admission was not enough, too
• speculative

NC Rule 609

• (a) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 (more than 30 days) misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.
  • (not limited to felonies), majority of crimes are admissible
    • Even just disorderly conduct
• stale (10 y/o) convictions must pass reverse 403 balancing test & prior written notice of intent to use

FRE 615. Excluding Witnesses “Invoking THE RULE” At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

1. a party who is a natural person;
2. an officer or employee of a party that is not a natural person , after being designated as the party’s representative by its attorney;
3. a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
4. a person authorized by statute to be present.
   1. I.E. – may be a statutory right for criminal victim

Lawyer’s choice whether or not to invoke (court has no discretion, but can also do it sua sponte)

• Designed to make sure witnesses don’t collaborate

Applies to trial, depositions, hearings, etc.

Exceptions to sequestration:

• Natural person parties.
• Designated officer/employee of a non-natural person party.
• “person whose presence is essential to presenting claim/defense”
  • I.E. – experts
• Statutory authorized persons.

FRE 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

1. make those procedures effective for determining the truth;
2. avoid wasting time; and
3. protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.

The court may allow inquiry into additional matters as if on direct examination.

(c) Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

1. on cross-examination; and
2. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party

A. Order of witnesses is really just tradition, not mandated

1. Court can change order if good reason but usually requires a compelling reason

B. Scope of cross-exam is limited to what was brought out during direct exam

1. BUT scope ALWAYS allows cross examiner to inquire into issues of credibility too
2. Court may allow inquiry into additional matters as if on direct examination
   1. I.E. – if opposing counsel objects to “outside the scope” you can be like “judge, my guy, if you don’t let me go on with this I’m just going to call this man back to the stand next week. It would save time if we went forward with this” → good shot he’ll let ya go ahead (basis of NC practice)
3. NC: no scope limitation, just must be relevant

C. Leading questions are questions that suggest an answer

1. “Yes or no” type questions is often a bad sign
2. Fine on cross and with hostile/adverse witness

FRE 610. Religious Beliefs or Opinions. Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

• Limited to evidence regarding credibility, does not exclude all evidence of religious belief offered for impeachment
  • Inadmissible only when offered to show that a witness’s character for truthfulness or untruthfulness is influenced by the nature of that belief
    • Admissible for other purpose, even when it affects credibility in some way
      • I.E. – religious belief offered to show the bias of a witness, MO, basis for a claim or defense
• Extends to unconventional beliefs
  • Difficult when having to distinguish b/t religious beliefs and political/philosophical beliefs

FRE 607. Who Can Impeach a Witness. Any party, including the party that called the witness, may attack the witness’s credibility

• Can call witness with the sole purpose of impeaching them
  • BUT, United States v. Hogan, prosecution may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a scheme serves as a subterfuge to avoid the hearsay rule

Methods of Impeachment listed in FRE 607

1. Untruthful character
   1. (Rules 608 and 609 previously stated)
2. Prior Inconsistent statements
   1. (Rule 613)
3. Defects of Capacity
   1. Witness’s capacity to perceive, recall, or relate may be shown to be impaired
      1. I.E. – mental illness that evinces an “impairment” of ability to comprehend, know, and correctly tell the truth; alcohol or drug use; bad eyesight, memory, hearing
   2. Extrinsic evidence generally allowed
4. Contradiction
   1. Substance of witness’s testimony may be contradicted
5. Bias
   1. Witness may be shown to be biased or interested
      1. I.E. – have some reason to slant or fabricate his testimony
   2. Extrinsic evidence is typically admissible to prove bias

No federal rule

Bias: State of mind that may cause a witness to favor or disfavor a party

• I.E. – friends/family, financial relationship, employment, shared beliefs or background, payment of money
• Accused may have constitutional right to attack a Witness for bias (confrontation clause)
• Since no federal rule → standards of 403 and 611 typically apply
  • U.S. v. Abel