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Legal Relevance

For evidence to be relevant it must have some tendency to make the existence of a fact in issue more or less likely to be true. That being said, there are times when evidence which may be relevant per this general definition will still be excluded by the trial judge. The trial judge may exclude this otherwise logically relevant evidence if he or she finds that evidence to be legally irrelevant. Legal irrelevance pertains to evidence which though logically relevant is not permissible because such evidence carries probative dangers along with it. This is where Federal Rule of Evidence 403 speaks to the court. The court must take into consideration any possible unfair prejudice, confusion, misleading of the jury, delay, cumulative evidence, and the like which is attendant to that same logically relevant evidence. If the court finds that one of these attendant circumstances to be significant then the court should likewise exclude the evidence. The factor of most consequence in most cases will be that of prejudice. More than anything, a trial judge will exclude logically relevant evidence where that evidence presents an opportunity for unfair prejudice. To determine whether an item of evidence may be "prejudicial", consider whether the evidence tempts the jurors to decide the case on an improper basis. If you find yourself on the other side of an objection, based on unfair prejudice, be sure to bring to the court's attention the fact that Rule 403 requires that probative dangers "substantially" outweigh probative value before an objection can be sustained om those grounds. Thus, if there is just some minor risk of unfair prejudice this should not be sufficient for a trial judge to exclude the logically relevant evidence as the clear language of the rule requires that the probative dangers "substantially" outweigh any probative value.

There are times when we will want to impeach an adverse witness's credibility in trial. By the same token there are times when we will want to bolter or rehabilitate our own witness's credibility in trial. There are many ways to impeach a witness and many ways to bolster the credibility of your own witness. Here we will talk about a few. The common law says that generally an advocate should not bolster his own witness's credibility prior to an adverse party putting that credibility in issue. That being said, there are some exceptions to that rule. For instance, while on direct you can have your witness testify to a prior identifications which your witness made of the Defendant. You can do this prior to your witness's credibility being impeached or otherwise put in issue by the other party. If you wish to do this then you will need to know the foundational requirements before doing so. Those requirements are that your witness has previously made an in-court identification of the same person. That your witness had an opportunity to see the person on occasion prior to trial. That your witness had plenty of time to observe the person on the prior occasion. That this pretrial identification was done in a fair setting. Finally you need your witness to testify that at the pretrial encounter your witness identified the same individual whom he or she identifies today in the courtroom.

There is another exception to the rule which prohibits bolstering prior to impeachment and that is what we call the "outcry" doctrine. This doctrine or theory is similar to that of the excited utterance hearsay exception. Essentially, you are allowed to have your witness testify as to a prior and fresh identification of the defendant assuming that this identification occurred shortly after the incident at issue. In this circumstance your foundational requirements are that the victim made a complaint and made that complaint shortly after the alleged incident. That complaint must report the witness as being the victim of the offense and the defendant as the perpetrator of the offense.

Where it sometimes gets tricky, with regard to impeachment of character, is when you simply resort to inquiry of a witness's prior acts. If those were simply untruthful acts then the court is pretty lenient. While conducting cross examination you may inquire of the witness as to prior acts of untruthfulness. Remember, that this line of questioning is limited to acts which go directly to untruthfulness and nothing more. Unfortunately, my understanding at least is that you have to take the witness at his word as he testifies. This means that if the hostile witness gives you an otherwise impeachable answer you can't later call another witness to impeach the hostile witness regarding this statement. Moreover, counsel can't then go on to question the witness about any repercussions of the dishonest act which befell the witness. The courts see this line of questioning as being overly prejudicial. This bar against using outside evidence or testimony to impeach the sitting witness's testimony comes from policy considerations which are that undue expense and time should not be allowed by the examining attorney with regards to acts that have no relevancy to the case other than that of the integrity of the witness's testimony. To lay a foundation for this type of testimony you need to demonstrate where the witness committed this act of dishonesty as well as when the witness committed this dishonest act. Of course the act must go to the witness propensity for truthfulness directly.

Fortunately the rule above which prevents impeachment by use of extrinsic facts has been largely overruled. At least this is my understanding of the current nature of the law. Others may disagree. Per most modern evidentiary rules of evidence, specific contradictions can be made by other witnesses. This means that you can call another witness to impeach the prior witness as to statements regarding specific facts stated by that prior witness while on the stand. This rule definitely goes to facts which are of consequence to the trial as well as facts who's contested nature purely goes to credibility of the witness.

Beyond using prior acts of untruthfulness, the attorney may also introduce evidence that the witness possesses the character trait of untruthfulness. To prove this trait you as counsel will typically call other witnesses to testify as to the individual's reputation. Your testifying witness can satisfy the necessary foundation by demonstrating that he is of the same community as the witness, that he or she has been in that community for a length of time and that the individual has knowledge as to the witness's reputation in that community. In addition to having your witness testify as to reputation you can have your witness testify as to his or her opinion of the individual at issue's propensity for honestly. Here again, you need to have your witness demonstrate how he has formed a relationship with the individual and that as a result of this relationship your witness has developed a solid opinion of the individual at issue. Then have the witness tell the jurors that his or her opinion is that the individual is an untruthful person.

The above article reflects some evidentiary rules as promulgated by the Federal Rules of Evidence. Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent book on this subject matter and the source of the majority of my own information, as outlined above, on this topic.

Categories: Evidence