WRITINGSAMPLEFRULESEVID607
- 1. Xxxxxxxxxxxxxxxx Memo To: xxxxxxxxxxxxxxxxxx From: Joshua Normand CC: Date: March 1, 2007 Re: Federal Rules of Evidence 608 and 609- Prior Bad Acts and Convictions excluded from evidence The following cases are instances in which the court has excluded prior bad acts and convictions from evidence. 1: U.S. v. Ling, 581 F.2d 1118. In prosecution for violation of federal drug laws, prosecutor should have accepted defendant’s answer to cross-examination question if he had ever fired gun on public street and should not have attempted to impeach defendant’s credibility on that collateral issue by use of police officer’s testimony. It is a general rule that arrest without more does not impeach the integrity nor impair the credibility of a witness because “(i)t happens to the innocent as well as the guilty.” Michelson v. United States, 335 U.S. 469,482, 69 S. Ct. 213, 222, 93 L. Ed. 168 (1948). This rule is based upon a clear recognition of the fact that the probative value of such evidence is so overwhelmingly outweighed by its inevitable tendency to inflame or prejudice the jury against the defendant that “total and complete exclusion is required in order that the right to trial by a fair and impartial jury may not be impaired.” United States v. Pennix, 313 F.2d. 524, 529 (4 Cir. 1963). In United States v. Blackshire, 538 F.2d 569 (4 Cir. 1976),Blackshire’s testimony that he had used mescaline was not useful to impugn his credibility. Rather, it served merely to prejudice the jury. The rebuttal testimony violated the rule, long recognized in this circuit, that extraneous evidence of misconduct cannot be introduced to impeach a witness. 538 F.2d at 572 (citations omitted). See United States v. Morlang, 531 F.2d 183, 190 (4 Cir.
- 2. 1975). 2: The People of the State of Illinois v. Mary Long, 316 Ill. App.3d 919, 738 N.E.2d 216, 250 Ill. Dec. 252. A witness’ credibility may not be impeached by inquiry into specific acts of misconduct which have not led to a conviction. Impeachment which tends to impugn a witness’ general moral character is impermissible. As the direct examination of Millaun Brown was commencing, the court interjected a question about a police officer calling the State’s Attorney’s Office. The state has not provided us with a citation for this “rule”. Even if such a regulation did exist, it was clearly not a proper subject of questioning. It was unrelated to a material issue in the case and the question may have impaired the witness’ credibility. Fugate v. Sears, Roebuck and Co., 12 Ill. App.3d 656, 674, 299 N.E.2d 108, 122 (1973). “In Illinois a witness’ credibility may not be impeached by inquiry into specific acts of misconduct which have not led to a conviction.” Podolsky and Associates L.P. v. Discipio, 297 Ill.App.3d 1014, 1026, 232 Ill.Dec.98, 697 N.E.2d 840 848 (1998). 3: U.S. V. Morlang, 531 F.2d 183. Court erred in permitting evidence as to a prior statement of prosecution witness, which implicated defendant, in order to impeach such witness, since prosecution would thereby by indirection, in the name of impeachment, present testimony to jury not otherwise admissible. While it is the rule in this circuit that a party calling a witness does not vouch for his credibility, United States v. Norman, 518 F.2d 1176 (4 th Cir. 1975), it has never been the rule that a party may call a witness where his testimony is known to be adverse for the purpose of impeaching him. The courts have consistently refused to sanction such a practice. 4:Beasley v. United States, 218 F.2d 366.For impeachment purposes, evidence of witness’ arrest is inadmissible, but evidence of his conviction is admissible. Where time for appeal had not expired following defendants’ prior conviction, and defendant had not been sentenced for such prior conviction, evidence of such prior conviction was not admissible in subsequent criminal proceeding. Appellant testified in his own behalf. He was cross-examined about his arrest for selling narcotics on another occasion. Upon objection the prosecutor said appellant was convicted, meaning that since he not only was arrested but was convicted the evidence was competent. But not so in this instance; for, as soon appeared at a
- 3. bench conference, the conviction referred to was recent and appellant had not yet been sentenced. Since the time for appeal had not expired evidence of the conviction was not admissible. 5: Mary Josephine Rose and Rita Krilcic v. B.L. Cartage Company, 110 Ill.App.2d 260, 249 N.E.2d 199. Evidence that former police officer, who testified for plaintiffs in automobile accident case, had left police force rather than face charges of drinking in uniform, filing false report and committing perjury under oath at an inquest concerning another occurrence was properly excluded. While it is proper to reflect upon credibility of witness by showing that his reputation for truth and veracity in neighborhood where he lives is bad, it is not permissible to reflect upon his credibility by establishing that on former occasion he lied about an entirely unrelated matter. The court finds no error in excluding evidence as to Lindsay’s resignation from the police force. We believe the controlling rule is stated in Elliot v. Brown, 349 Ill.App. 428, 434, 111 N.E.2d 169, 171 (1953): 6: Terry Lynn Asbury v. Bobby Moses and Commonwealth of Virginia, 2003 WL 22111033 (Va. Cir. Ct.)) Plaintiff alleged that she was falsely imprisoned and battered by Moses and that the Virginia State Police Department was responsible for his actions under the doctrine of respondeat superior. Plaintiff denied encouraging defendant’s advances in any way. The court excluded any evidence regarding plaintiff’s claims of prior bad acts, negligent retention, negligent supervision and intentional infliction of emotional distress. 7: The People of the State of Illinois v. Robert P., 354 Ill. App.3d 1051, 821 N.E.2d 1259, 290 Ill. Dec. 685. Defendant was not entitled to impeach child victim in trial for aggravated criminal sexual assault with specific act evidence that she had previously falsely accused him of biting her, where alleged lie about biting had no bearing on whether defendant sexually assaulted victim. Defendant attempted to introduce evidence that A.P. had previously falsely accused him of biting her. This attempt at impeachment was based on a specific bad act: a previous specific lie that is not closely related to the crime with which defendant is charged. Our supreme court recently affirmed that specific-act impeachment is prohibited in Illinois. People v. Santos, 211 Ill.2d 395, 286 Ill.Dec.
- 4. 102, 813 N.E.2d 159 (2004). While the Santos decision dealt with the admissibility of evidence under the rape shield statute, which is not at issue on this point of law in this case, the court’s comment’s are still relevant here. “What defendant wished to do by introducing this evidence was to impeach the victim’s credibility with a specific act of untruthfulness. He wished to show the jury that T.K. had lied on one occasion— when she told medical personnel she had not had sexual intercourse with anyone else in the previous 72 hours—in order to support his argument that when she testified in court she was lying about what had occurred between her and the defendant. Far from being constitutionally required, specific-act impeachment is prohibited in Illinois.” (Emphasis in original.) Santos, 211 Ill.2d at 403-04, 286 Ill. Dec. 102, 813 N.E.2d 159. We hold it was not error to exclude evidence of defendant’s false accusation regarding the biting incident. 8: United States v. Blackshire, 538 F.2d 569. Evidence that defendant charged with distributing and conspiring to distribute heroin had used mescaline was not useful to impugn defendant’s credibility and served merely to prejudice the jury and should not have been admitted. Extraneous evidence of misconduct cannot be introduced to impeach a witness. The district cautioned the jury that this evidence was not any indication of Blackshire’s guilt, but he admitted it for the purpose of testing Blackshire’s credibility. This, we believe, was error that should not be repeated on retrial. Blackshire’s testimony that he had used mescaline was not useful to impugn his credibility. Rather, it served merely to prejudice the jury. Cf. United States v. Pennix, 313 F.2d 524, 528 (4 th Cir. 1963). The rebuttal testimony violated the rule, long recognized in this circuit that extraneous evidence of misconduct cannot be introduced to impeach a witness. See Pullman Co. v. Hall, 55 F.2d 139, 141 (4 th Cir. 1932). See Federal Rule of Evidence 08(b); 3 Weinstein and Berger, Commentary on Rules of Evidence P 08(05). 9: United States v. Garcia, 531 F.2d 1303. A mere arrest without conviction for any offense is inadmissible to show general lack of credibility.
- 5. It is perfectly clear that normally the mere existence of an arrest is not admissible to impeach the credibility of a witness. Jenkins v. General Motors Corp., 5 Cir. 1971, 446 F.2d 377, cert. denied, 405 U.S. 922, 92 S. Ct. 959, 30 L.Ed.2d 793 (1972); Brown v. Coating Specialists, Inc., 5 Cir. 1972, 465 F.2d 340; Truman v. Wainwright, 5 Cir. 1975, 514 F.2d 150, 152. 10: United States v. Lewis, 26 F.2d 940. Prior felony conviction for distributing heroin was inadmissible under rule as pertaining to a crime involving dishonesty or false statement notwithstanding claim that an individual who lived by surreptitiously selling drugs on the street to innocent members of the community engaged in a crime involving dishonesty. Fed. Rules Evid. Rule 609(a)(2), 28 U.S.C.A. It is not the manner in which the offense is committed that determines its admissibility under rule governing evidence of crimes involving dishonesty or false statement, but whether the crime involves dishonesty or false statement as an element of the statutory offense. Fed. Rules Evid. Rule 609(a)(2), 28 U.S.C.A. The Government contended at trial that Lewis’ prior conviction was admissible under both Rule 609(a)(1) and (a)(2). The trial judge first rejected, as we do here reject, the Government’s contention that the crime of heroin distribution involves dishonesty or false statement… While Millings involved a conviction for simple possession of a narcotic drug, we do not discern that a conviction for distributing heroin is any more indicative of dishonesty or false statement. Contrary to the Government’s construction, we do not perceive that it is the manner in which the offense is committed that determines its admissibility. Rather, we interpret Rule 609(a)(2) to require that the crime “involved dishonesty or false statement” as an element of the statutory offense. Therefore, Lewis’ prior felony conviction, involving as it did only “unlawful distribution of a controlled substance”, did not involve “dishonesty or false statement” within the meaning of Rule 609(a)(2).
- 6. PAGE 1 Page PAGE 4 PAGE 1