Motion in Limine: “Victim”

The newest motion to many jurisdictions is a motion in limine to prevent the prosecution from referring to the alleged victim as a “victim”.  This motion is met with eye-rolls from both the prosecution and judges alike, but it has merit. 

The prosecution in a case, such as one alleging domestic violence, states that reference to the “alleged victim” as “the victim” is part of the prosecution’s theory of the case; however, such a reference is merely argument and should be left for closings.

While the motion does little more than rack up legal fees or make the defendant feel like they have a zealous advocate in their corner, it stands the test in terms of the rules of evidence.

Prosecutors feel that they should be able to present the alleged victim to the jury in a context of being a “victim”.  This is not because prosecutors are trying to gain an edge or are attempting to game the system, but instead because such a term is inherently ingrained in a prosecutor’s trial preparation.

In reality, however, a determination of whether the alleged victim is in fact a victim is left for no one other than the jury.  The jury decides whether a crime occurred – and therefore, whether the person the prosecution is presenting as the one who has been wronged by the defendant is in fact a victim.  We will dive into this topic further in future posts. 

Rule 403: Misuse

Why is Rule 403 so difficult?  Well, it is not any more difficult than any other rule, but judges still manage to make it so. 

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

F.R.E. 403.

Judges fail to properly administer Rule 403 in two contexts.  First, they misunderstand what is meant by “unfair prejudice”.  Second, they fail to properly balance the probative value in relation to the potential ill-effects that Rule 403 contemplates.

First, the term “unfair prejudice” is of utmost importance.  The notes to Rule 403 state that “unfair prejudice” is defined as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”  As the common argument goes, almost all evidence presented by one side is prejudicial to the other side.  That is very much the point of a trial.  The question is not whether the evidence is highly prejudicial to the other side, but rather whether the evidence is unfairly prejudicial.  At the root of this determination is whether the finder of fact with make a determination on an improper basis. 

Second, the test as to whether the evidence is admissible is whether the probative value is substantially outweighed by the danger of such unfair prejudice.  There are a couple key terms in this test that are all too often overlooked.  First, the term “danger”.  Rule 105 allows for a limiting instruction to be given to the finder of fact.  This will limit the danger (to some degree) in almost every circumstance.  Will it limit the danger enough?  That depends on the balancing itself.  This brings us to the second term - “substantially”.  In order to bar such evidence, the gatekeeper must find that the danger of unfair prejudice substantially outweighs the probative value.  Inherently, this gives discretion to the judge.  What is a substantial amount?  What is substantial to one may not be to another. 

However, all too often judges find that the “probative value does not outweigh the prejudicial effect” or that the “prejudicial effect outweighs the probative value.”  This finding is wrong on both levels: not only is it suppose to be a question of probative value vs. unfair prejudice, but also the balancing of the test is suppose to be that of the probative value being substantially outweighed by the danger of unfair prejudice. 

Rule 403 is meant to serve as a residuary rule of evidence.  It is meant to be used in the infrequent circumstance where the proffered evidence is sound in every other way but creates to large of a risk for an improper determination.  Unfortunately, this is not how the rule is used.  Based on the discretion that it gives judges, it is used time and time again to allow the judge to prohibit otherwise admissible evidence when the judge sees fit.

Hearsay: Out of Court Statement by the Witness on the Stand

It has become a regular practice, by many sitting judges, to allow hearsay testimony when the out of court statement is one belonging to the witness on the stand. Hearsay is defined as an out of court statement made by a declarant and offered for the truth of the matter asserted. While this rule has many exceptions, no such exception exists for the general admission of out of court statements belonging to the testifying witness. This is for good reason.

First, let’s address the logic that judges use to allow for the admission of such testimony. It is generally thought that a witness, who is testifying under oath, should be permitted to testify to things within the witness’ personal knowledge, barring some other evidentiary limitation. Many judges believe that a witness can testify to prior statements that the witness made out of court because it is within the witness’ personal knowledge and does not fall victim to any other limitation. While a hearsay objection is often (and appropriately) raised in such a situation, many judges believe that the policy implications of hearsay are not present in this scenario.

The exclusion of hearsay testimony is based on the belief that such testimony is inherently unreliable. This is, in part, because the opponent of such evidence does not have the ability to cross examine the declarant on the statement. The lack of ability to cross examine a witness, in some cases, is a violation of the Confrontation Clause. Additionally, hearsay testimony is deemed unreliable because the statement itself is not made under oath and before the trier of fact.

Judges that allow for the admission of out of court statements offered by the declarant who is now a witness find that these two reasons that make hearsay inherently unreliable are not present if the declarant is now on the stand, under oath, and subject to cross examination. While such reasoning may be correct on the surface, it is certainly shortsighted.

The current rules of evidence favor in court testimony. While there are many hearsay exceptions, they are just that: exceptions. Judges should rethink their leniency to allow witnesses to testify to their own out of court statements offered for the truth of the matter asserted because it creates a judicial exception with little safeguard for consistency.
The following examples make this point clear:

Example One: A police officer is on the stand giving sworn testimony regarding his investigation of the defendant on a charge of DUI. He testifies that he told his sergeant, about a week after the traffic stop, that the defendant had bloodshot and watery eyes. Assume that the officer has not testified that he remembers the defendant having such indicia. Additionally, assume that the officer has not needed his memory refreshed. Instead, the district attorney asked: “what indicia of alcohol did the defendant have?” And the officer testified, “I told my sergeant about a week later that the defendant had bloodshot and watery eyes.” While the witness could have potentially testified that the defendant had bloodshot and watery eyes on the date of the stop, or had his memory refreshed if he could not remember, assume that the witness’ answer was just this sloppy. The defense could put forth a proper objection to this testimony, as it is hearsay. The testimony involves an out of court statement offered for the truth of the matter asserted. Many judges would allow such testimony nonetheless. Whether this be because it is thought that the witness can testify to his own out of court statements or simply an effort to save time, many judges would allow such an answer into evidence to prove that the defendant was intoxicated. No matter the rational, such testimony is hearsay that does not fall within any hearsay exception and should therefore be excluded. But since we are making assumptions, let’s assume that the judge finds the testimony admissible. Example two shows why this could become a game-changer as far as the rules of evidence are concerned…

Example Two: The same officer is on the stand and being examined by the same prosecutor – the questioning continues. The prosecutor asks, “other than bloodshot watery eyes, what other indicia of alcohol consumption did the defendant have?” The officer hits a blank. While the officer’s report lists out a long and detailed list of all of the different signs the defendant had to suggest his intoxication that evening, the officer cannot recall any additional details under the pressure of sworn testimony. Based on a proper use of the rules of evidence, the DA could lay foundation to have the witness’ memory refreshed by use of the officer’s report. Depending on the lack of the witness’ memory and the complexity of the investigation (a DUI is not all that complex), this song and dance can take a good deal of time. Based on the judge’s previous ruling as to out of court statements of the declarant/witness, however, the DA sees a short cut. Based on this prior ruling, the DA could simply lay the foundation that the witness is familiar with (and is the author of) the report. The DA could then simply lay the foundation that this report is accurate. At this time, the DA could move to admit the report into evidence. While the report is hearsay, based on the logic that many judges use, the report would be admissible nonetheless. The judge would think: (1) the defense can confront the witness as to these out of court statements; and (2) the witness is now under oath and has stated that the report is accurate. The judge may think that, based on these two conditions being met, such admission will speed up a long and monotonous memory refreshment regimen. The shortfalls of this logic is becoming clear, yet let’s take it to the next extreme…

Example Three: Assume that the officer remembered all of the indicia of intoxication and that the report did not need to be either admitted by or even referred to by the DA. Nearing the end of testimony, the DA asks the witness, “did you create a report on this case?” “Yes.” “Are there relevant details in that report beyond what you testified to here today?” “Yes.” At this time, based on the logic used as to the judicially created hearsay exception, the report could be admitted. The report would not be deemed cumulative, nor irrelevant, nor hearsay. Instead, the court, if it was to stay true to its own nonsensical logic, would have to admit such a report.

What would stop all witnesses from creating detailed written statements, authenticating said statement on the stand, testifying to its truth and accuracy, and having said statements admitted? Hearsay. Out of court statements made by a declarant and offered for the truth of the matter asserted are hearsay, no matter the identity of the witness.

Impeachment for the Truth

The federal rules of evidence allow for the admission of a prior inconsistent statement for the purpose of impeaching the credibility of a witness. However, the federal rules do not allow for such a statement to be offered for the truth of the matter. This distinction presents itself in closing arguments.

For example, say an eye witness makes a statement to police that the light was green when the defendant entered the intersection. While on the stand, this same witness testifies that the light was red, not green. Defense counsel may cross examine the witness as to the prior inconsistent statement so show that the witness’ testimony is not credible. According to the federal rules, defense counsel may only argue that the witness’ credibility should be strongly questioned by the jury, given the inconsistencies in the witness’ statements. In states such as Colorado, this limitation does not exist.

Pursuant to C.R.S. 16-10-201:
(1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:
(a) The witness, while testifying, was given an opportunity to explain or deny the statement or the witness is still available to give further testimony in the trial; and
(b) The previous inconsistent statement purports to relate to a matter within the witness's own knowledge.

In other words, defense counsel may argue that the light was actually green. While non-practitioners hardly see a difference, it is substantial nonetheless. This statutory hearsay exception fails to question the reliability of such a prior statement. While the statute allows the witness the opportunity to explain the prior inconsistent statement (to say, for example, that it was a mistake or misquoted), the jury is able to hear the statement without further consideration of its reliability or lack of reliability.

This statutory loophole allows for a wide variety of out of court statements to be offered for the truth of the matter asserted; however, it is used most often for a recanting domestic violence victim. In many circles, the thought is that one cares little as to what the victim actually says on the stand, so long as he/she takes the stand, as the victim can be impeached and the testimony can be offered for the truth (and not just credibility). This is troublesome. While recanting victims do threaten to mislead a jury from the truth, the proffer of non-sworn testimony for the truth risks the same. We will dive into this topic more in the future, as there are many alternatives that are available for Colorado and other similarly legislated states.

Admissibility: Curriculum Vitae

The admissibility of a Curriculum Vitae (CV) for a tendered expert has become commonplace in courtrooms throughout the country. This practice questions the very purpose of the hearsay rules.

Hearsay is defined as "[a] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FRE 801(c). A "statement" includes both oral and written assertions. FRE 801(a).

A CV admitted as an exhibit is offered for the purpose of proving a witness' qualifications aside from those offered in testimony. Many judges fail to consider CVs as hearsay because they are out of court statements by the witness who is now under oath on the witness stand. Unfortunately, this common misconception makes the rest of this discussion moot in many courtrooms. While the cumulative nature of such an exhibit is often met with an objection, careful questioning and properly laid foundation can resolve such an issue. There should be no question that a CV received into evidence is hearsay (but see below). The question is whether it properly falls within a hearsay exception: The answer should be "not without more foundation."

Before diving into why a CV does not properly meet any hearsay exception, it is important to point out the policy rational that is shared by the numerous exceptions. The various exceptions to the hearsay rule, found in FRE 803, 804, and 807, share one common theme: reliability. While out of court statements are inherently unreliable, it is thought that under certain circumstances such a statement can be deemed reliable enough. Of note is that the finder of fact can still assess the credibility of such a statement, but hearsay is a question of admissibility first, then credibility. So why is a CV, a document that persons routinely exaggerate, more reliable than any other out of court statement?

Many trial attorneys lay foundation for a CV under the business record exception of FRE 803(6). For an out of court statement to meet the business record exception, it must be: (1) made at or near the time of the event; (2) by a person with personal knowledge; (3) kept in the ordinary course of business; and (4) created as part of the regular course of that business. See See Id. The rule also safeguards against the admissibility of such a document that indicates a lack of trustworthiness. Id. The policy behind this specific exception is the idea that it is in a business' (or other organization's) best interest to create accurate documents and records. In other words, documents that are created for the purpose of a business are thought to be reliable enough to get over the admissibility hurdle because any intent to deceive in order to achieve a different trial outcome is not present at the time the record was created. FRE 803(6) requires the document to be made at or near the time of the reported truth for this very purpose. The rule requires a showing that the record was created by a person with personal knowledge as a means to this same end. Additionally, the rule requires that the document be made and kept in the ordinary course of business to exclude documents that are created in trial preparation and further differentiate such a document from inadmissible hearsay. Furthermore, it must be shown that the document does not have a lack of trustworthiness that would exclude it from the business record exception. So, let's see how a CV describing the qualifications of a tendered expert witness stacks up:

(1) Made at or near the time of the event?
Some persons update their CVs routinely. One would suppose that a person that makes at least part of their living as an expert witness is sure to update their CV at or near the time of the new accomplishment. For lay persons updating an employment CV, it is not uncommon to additionally edit the description of past accomplishments as well. Such editing well after the fact on the part of an expert witness, however, is not proper. Proper foundation, therefore, would require the proponent of the CV to establish that each entry on the CV was made at or near the time of the event. Foundation requirement: "Were each of the entries on your CV made at or about the time of the event or accomplishment?" "Have any of the entries been updated or changed since they were made?"

(2) By a person with personal knowledge?
There is no question that a person has personal knowledge to the events and accomplishments on their own CV. Foundation requirement: "Is this your CV?"

(3) Kept in the ordinary course of business?
This foundation component is tricky and depends on the expert. In order for an expert to keep such a record in the ordinary course of business, the expert needs to have a business purpose for which they keep such a CV. Most experts tailor their witness CVs to be much different from employment CVs. Therefore, there are many ways to lay a foundation for this element of the rule. Unfortunately, witnesses are all too often asked, "Is this CV kept in the ordinary course of business?," and the expert is trained to reply, "Yes." A further foundation should be made as to which course of business. For example, an expert may keep this CV in order to show curious patients, or for the portion of their business that includes expert witness testimony, or for employment purposes. Foundation requirement: "Do you keep this CV in the ordinary course of your business?" "For what course of business is this CV kept?"

(4) Created as part of the regular course of that business?
This goes hand-in-hand with #3. Foundation requirement: "Did you create the entries on this CV in the regular course of the business you described?"

Whether a CV has inherent questions as to its reliability makes admissibility even more problematic. CV are mini-autobiographies. The temptation to expand on certain accomplishments either through deception or creative polish tends to place in question the trustworthiness of the document even before the opponent has an opportunity to voir dire. Foundation requirement: "Does this CV truly and accurately describe each of the listed accomplishments?"

Given a proper foundation, a CV may be admissible under FRE 803(6), but such a foundation is not laid in present day courtrooms.

Some courts have found that a CV falls within the mysterious residual hearsay exception of FRE 807. The rule requires: (1) circumstantial guarantees of trustworthiness equivalent to Rule 803 and 804; (2) the statement is to a material fact; (3) the statement is more probative on the point than any other evidence from the proponent; (4) the interests of both justice and the rules of evidence are best served by the admission of the statement; and (5) proper notice is given to the adverse party. See FRE 807.

A CV should not fall within the Rule 807 exception because of requirement #3 (a CV is not more probative than other available evidence). The witness should be able to testify to each of the items on his or her CV; if not, there is a personal knowledge problem pursuant to Rule 602. While the witness’ memory may have to be refreshed, the witness can testify to each of the items. This type of testimony is not unreasonable. Therefore, the 807 exception should not apply to a CV, which can be alternatively used to refresh the witness’ memory.

Some courts have found that a CV is not hearsay at all. The theory goes that an out of court statement made by a witness now available for cross examination in front of the trier of fact is not hearsay if the witness acknowledges its truth on the record. However, a judge must still determine admissibility based on FRE 104(a). Additionally, if the claim that a CV is not hearsay is relied upon for admissibility, why have we made it our practice to lay foundation in an attempt to comply with the business record exception? Furthermore, if prior written statements that are tendered through the author/witness are admissible over a hearsay objection, why don't all witnesses prepare written statements of their testimony prior to trial and admit the statement at the end of live testimony? To say that prior statements by a witness are admissible over a hearsay objection just because the witness is currently under oath would allow for a wide and wild variety of possibilities - we'll get into these on another day.

Overall, the robotic nature of laying foundation for the admissibility of a CV should be questioned. Further foundation should be required before the admission of a CV, as it may be the very thing that the hearsay rules attempt to exclude... unreliable evidence.