Transcript Slide 1

Two C’s of Evidence:
Character
and
Confrontation
Deborah Jones Merritt
Moritz College of Law
www.merrittevidence.com
What Is Character Evidence?
Character Evidence
Shot the Victim
Who Dented the Car?
General Prohibition
• Ohio Rule of Evidence 404(A):
Evidence of a person’s character or a
trait of character is not admissible for
the purpose of proving action in
conformity therewith on a particular
occasion . . . .
Judge reading
motion in limine
to exclude
character
evidence
The Character Evidence Trail
Is It Character Evidence?
• Eyewitness: The defendant spat
on the victim before shooting him.
• Confession to Friend: I felt a thrill
when I shot him.
• DNA Expert: I matched the
defendant’s DNA to blood on the
victim.
Is It Character Evidence?
Defendant shot
the victim
Eyewitness saw defendant
Defendant confessed
DNA links defendant
Does an Exception Apply?
• Character as element
• Mercy rule in criminal cases
• Witness’s character for untruthfulness
• Acts used for non propensity purpose
• Habit
• Prostitution
Character as Element
• Rare
• Defamation,
negligent
entrustment,
child custody, entrapment
• Character is not an element of self
defense. State v. Barnes, 94 Ohio
St. 3d 21 (2002)
The Mercy Rule
• Ohio Rule of Evidence
404(A)(1) & (2)
• Applies only in criminal cases
• The accused must initiate
• Prosecutor may respond in
kind
The Mercy Rule
The accused may . . .
Then the state may . . .
Offer evidence of his
own pertinent trait
Offer rebuttal evidence
on the same trait
The Mercy Rule
The accused may . . .
Then the state may . . .
Offer evidence of his
own pertinent trait
Offer rebuttal evidence
on the same trait
Offer evidence of the
Offer rebuttal evidence
victim’s
pertinent on the same trait
trait
The Mercy Rule
The accused may . . .
Then the state may . . .
Offer evidence of his
own pertinent trait
Offer rebuttal evidence
on the same trait
Offer evidence of the
victim’s pertinent trait
Offer rebuttal evidence
on the same trait
Offer evidence that a
homicide victim was the
first aggressor
Offer evidence of the
victim’s
peaceableness
Witness’s Character for
Untruthfulness
• Ohio Rule of Evidence 404(A)(3)
Acts Used to Prove Something
Other than Propensity
“Bloods” Member:
Violent
Identification
“Bloods” Member:
Motive
Murder
Acts Used to Prove Something
Other than Propensity
Rule of Evidence 404(B)
• Evidence against any
party
ORC 2945.59
• Only evidence
against criminal
defendant
• Evidence for any purpose
other than propensity
• Motive, intent,
absence of
• Including motive,
mistake or
opportunity, intent,
accident, scheme,
preparation, plan,
plan, or system
knowledge, identity, or
absence of mistake or
accident.
Acts Used to Prove Something
Other than Propensity
• “Substantial proof” of other acts
suffices. State v. Carter, 96 Ohio
St. 2d 79 (1971) (syllabus point 2)
Acts Used to Prove Something
Other than Propensity
• State v. Morris, Ohio S. Ct. No. 20101842, reviewing 2010 WL 3528992
(Ohio 9th Dist. Sept. 13, 2010)
– Is review under 404(B) de novo or for
abuse of discretion?
– Oral argument set for November 1
Habit
• Rule 406: Evidence of a person’s
habit or an organization’s routine
practice
• Regardless of corroboration or
eyewitnesses
• Relevant to prove that conduct on a
particular occasion conformed with
habit/routine practice
Habit
Not Habit
• Notifying family
about travel
• Defrauding
purchasers
• Making same-day
call after stress test
• Making false
allegations
• Driving same route
from work to home
• Using excessive
force
• Pattern of mowing
lawn
Prostitution
• ORC § 2907.26
• Reputation evidence related to
brothels, prostitution, and related
acts
• Admissible to prove that the place
is a brothel, person is a prostitute,
etc.
The Character Evidence Trail
Restrictions on the Manner of Proof
Mercy Rule
• Rule 405(A) limits manner of proof
• Proof only by reputation or opinion
evidence
• Cross examination on specific acts
State v. Hale, 119 Ohio St. 3d 118
(2008)
• Hale shot Green
• Hale claimed Green tried to rape
him
• State called character witness:
Green had a reputation as a
peaceful character
• Defense offered witness: “6 years
ago, Green raped me”
Restrictions on the Manner of Proof
Untruthfulness
• Rule 609: Evidence of
convictions
• Rule 608(B): Other proof
only by reputation or opinion
• Cross examination on
specific acts
The Character Evidence Trail
Does the Rape Shield Law Apply?
• ORC § 2907.02(D) and § 2907.05(E)
• Prosecutions for rape or gross sexual
imposition
• Limits evidence for 4 exceptions
Does Rule 403 Dictate a Different
Result?
• Rule 403(A): “evidence is not
admissible if its probative value is
substantially outweighed by the danger
of unfair prejudice . . . .”
• Evidence admitted under Rape Shield
Law satisfies 403(A)
The Second C:
Confrontation
The Sixth Amendment
In all criminal prosecutions,
the accused shall enjoy the
right . . . to be confronted
with the witnesses against
him . . . .
Someone who makes a
testimonial statement
Sixth Amendment Under Crawford
In all criminal prosecutions, the
accused shall enjoy the right
cross-examine
. . . to be
confronted with the
people
whoagainst
make him . . . .
witnesses
testimonial statements
against him . . . .
Applying Crawford:
Two Threshold Questions
•
Admissible under state rules?
•
Offered against a criminal
defendant?
Applying Crawford: Three Steps
1. Is the statement testimonial?
2. If yes, has the state shown that
the speaker is unavailable?
3. If yes again, did the
defendant have a prior
opportunity to crossexamine the witness?
What Statements Are Testimonial?
• Solemn declarations made for the
purpose of establishing a fact
• Statements made under
circumstances that would lead an
objective witness reasonably to
believe that the statement would be
available for use at a later trial
Clearly Testimonial
• Grand jury testimony
• Courtroom testimony
• Affidavits
• Depositions
• Signed confessions
• Responses to conventional police
interrogation
Current Controversies
1. Other statements to police
2. Dying declarations
3. Laboratory reports
4. Expert opinions
1. Other Statements to the Police
• What was the primary purpose of the
statement?
• Testimonial: To establish past
events potentially relevant to
prosecution
• Not Testimonial: To enable
police assistance to meet an
ongoing emergency or some
other purpose
Davis v. Washington, 547 U.S. 813 (2006)
• Operator: What’s going on?
• Caller: He’s here jumpin’ on me again
....
• Operator: Okay, sweetie. I’ve got help
started. Stay on the line with me, okay?
• Caller: I’m on the line.
• Operator: Listen to me carefully.
you know his last name?
Do
Michigan v. Bryant, 131 S. Ct. 1143 (2011)
• Police called to gas station: gunshot
victim
• As police arrived, they asked: “What
happened? Who shot you?”
• Victim identified “Rick”
• Victim died at hospital
Justice Scalia Dissents
• “today’s opinion distorts our
Confrontation Clause jurisprudence
and leaves it in a shambles”
• “Instead of clarifying
the law, the Court
makes itself the
obfuscator of last
resort.”
People v. Clay, 926 N.Y.S.2d 598 (N.Y. App.
Div. 2011)
• Gunshot victim
• Captain McGee: “Who shot you?”
• McGee prompts victim: “I don’t think
you’re going to make it. Who shot
you?”
• Victim: “Tom”
State v. Bulger, 2011 Ohio 3828 (8th Dist.
Ct. App. Aug. 4, 2011)
• Controlled drug buy with CRI
• Two police officers observed
• CRI returned and said “he’s got a gun”
• Bulger ran into house w/ dark object
• Police found gun in house
• Bulger charged with unlawful
possession
2. Dying Declarations
• Dying declarations were admissible
in the eighteenth century
• S Ct dicta: founding era
exception?
• State courts have
unanimously embraced exception
• Several Ohio courts of appeals
have endorsed the exception
3. Laboratory Reports
• Melendez-Diaz v. Massachusetts
(2009): Lab reports are testimonial
• Bullcoming v. New Mexico (2011):
Surrogate analyst may not testify
Open Issues
• Is a lab report admissible if
its primary purpose was non
prosecutorial?
• Is the report admissible if a
supervisor or reviewer testifies?
– State v. Crager, 116 Ohio St. 3d 369
(2007)
4. Expert Opinions
• May an expert witness give an
opinion based on an inadmissible,
testimonial statement?
• FRE 703: Allows experts to base
opinion on inadmissible evidence if it
is “of a type reasonably relied upon
by experts in the particular field”
4. Expert Opinions
• May an expert witness give an
opinion based on an inadmissible,
testimonial statement?
• US Supreme Court will
address in Williams v.
Illinois, No. 10-8505
(cert. granted June 28,
2011)
Expert Opinions and
Confrontation in Ohio
• Ohio Rule of Evidence 703: The facts
or data in the particular case upon
which an expert bases an opinion or
inference may be those perceived by
the expert or admitted in evidence at
the hearing.
• State v. Solomon, 59 Ohio St. 3d 124
(1991): “major part” exception
Expert Opinions and
Confrontation in Ohio
• Ohio experts have some connection
to underlying data
• Opinions are more likely
to survive Sixth
Amendment challenge
—regardless of decision
in Williams
Will Crawford Survive?
• Will the Court revert to the reliability
standard of Ohio v. Roberts?
• Will it adopt a new Sixth
Amendment principle?