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The Problem with Problems.

memorySo do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see.  We all have a tendency to ignore our problems and procrastinate.  This is fatal thinking or à total lack of thinking.

Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office.  Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument.  This is often too late and provides little time to use your creativity as an attorney and advocate for the client.

I always keep an electronic document with a list of inspirational quotes, analogies and arguments.  I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial.  For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.

So how do you deal with such problems?  You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802.  If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).

If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s  impact with the jury.  See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it.  If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case.   See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.

I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly.  If possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.

I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred.   I don’t wait for redirect and give my opponent the first shot at framing the issue.

Honesty, is the best policy in dealing with such problems.   Remember, everyone is human and no one is perfect.   The jury will understand if you admit your problems and you don’t run away from them.  Just deal with it.   Likewise,  if I receive inspiration for a good argument, analogy or quote,  I will  send myself an e-mail or text message so that I don’t forget it.

So don’t let your problems, be the problem.  Be proactive and creative.  Do not procrastinate and brood.

Why Character Matters

Such evidence is generally not admissible unless “character” is at issue. Ind. R. Evid. 404(a). Indiana Rules of Evidence 404, 405, 607, 608 and 609 deal with this area of law. Reputation of a person’s character among associates or in the community is a noted exception to the hearsay rule. Ind. R. Evid. 803(21). These rules provide as follows:

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence Generally. 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, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 405. Methods of Proving Character
(a)Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. Upon reasonable pre-trial notice by the accused of the intention to offer character evidence, the prosecution in a criminal case shall provide the accused with any relevant specific instances of conduct to be used in cross-examination.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element.

Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of the Conduct of a Witness. For the purpose of attacking or supporting the witness’s credibility, other than conviction of a crime as provided in Rule 609, specific instances may not be inquired into or proven by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
The general rule is that evidence of a person’s character is not admissible to prove action in conformity therewith on a particular occasion. Brooks v. State, 683 N.E.2d 574, 576 (Ind.1997) (citing Evid. R. 404(a)). However, “[a]n exception to this rule is that a defendant is permitted to introduce `evidence of a pertinent trait of character of the victim of the crime.'” Id. (citing Evid. R. 404(a)(2)). Ind. Evidence Rule 405(b) “applies when a person’s character is a material fact that determines the parties’ rights and liabilities under the substantive law.” 
In re J.L.V., 667 N.E.2d 186, 190 (Ind.Ct.App.1996) (citing Wanke v. Lynn’s Trans. Co., 836 F.Supp. 587, 597 (N.D.Ind.1993)). 
 For example, “[a] person’s character may be a material fact in deciding who should have custody of children as fitness to provide care is of paramount importance. When character has been put in issue by the pleadings in this type of case, evidence of character must be brought forth.” Id. However, the Indiana Supreme Court has held that the fact that a defendant asserts self-defense does not make the victim’s character an essential element of his defense. See Brooks, supra, 683 N.E.2d at 577 (“Nor was the victim’s character an essential element of Brooks’ claim of self-defense. Whether or not [the victim] had violent propensities, the jury could still determine that Brooks did not act in self-defense.”).
The admission or exclusion of such evidence is a matter left to the sound discretion of the trial court, and is subject to review only for an abuse of that discretion. Hackney v. State, 649 N.E.2d 690, 692 (Ind.Ct.App.1995), trans. denied. Ind. Evidence Rule 404(b) governs the admission of uncharged misconduct, also referred to as prior bad acts. The Rule permits the admission of such evidence as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ind. Evid. R. 404(b). Such evidence, however, is not admissible to prove a person’s character for the purpose of showing action in conformity therewith. Evid.R. 404(b).
Before admitting evidence of prior bad acts, the trial court must determine:
(1) whether the evidence may be admitted for the purpose acceptable under Rule 404(b) (proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident); and, if so,
(2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under Ind. Evid. R. 403. Brown v. State, 659 N.E.2d 652, 655 (Ind.Ct.App.1995), trans. denied (1996). Exceptions to the general rule against uncharged misconduct must be applied with caution. Penley v. State, 506 N.E.2d 806, 808 (Ind.1987). In Penley, our Supreme Court warned of the danger associated with admitting evidence of uncharged misconduct, stating:
“The notion that the State may not punish a person for his character is one of the foundations of our system of jurisprudence. Evidence of misconduct other than that with which one is charged (‘uncharged misconduct’) will naturally give rise to the inference that the defendant is of bad character. This, in turn, poses danger that the jury will convict the defendant solely on this inference.”
Id. See also Edward J. Imwinkelried, Uncharged Misconduct Evidence § 1:02 at 4 (1984-1991) (noting that uncharged misconduct evidence could weigh heavily against a defendant even becoming a dispositive factor in conviction).
Rule 608(b) specifically states that specific instances of conduct may neither be inquired into nor proven by extrinsic evidence. Indiana cases have consistently held that Evidence Rule 608(b) prohibits the introduction of evidence regarding specific instances of misconduct. See, e.g., Johnson v. State, 832 N.E.2d 985 (Ind.Ct.App.2005) (holding that trial counsel’s performance was not defective for failing to proffer evidence that State’s witness allegedly kidnapped and robbed another party because Evidence Rule 608(b) would have prohibited the admission of such), trans. denied. There is an exception to this rule with regard to a conviction for a crime under Rule 609. 
 The limited exception mentioned in the last sentence of Rule 608(b) is applicable if there is testimony regarding the truthfulness of a witness in the form of opinion testimony as to character or reputation for truthfulness and veracity. In such instances an attorney may in the discretion of the court, if probative of truthfulness or untruthfulness, inquire on cross-examination about specific instance of conduct of the witness rendering the opinion on a person’s veracity. See, e.g., Johnson v. State, 832 N.E.2d 985 (Ind.Ct.App.2005, trans. denied.
Likewise in a defamation case, evidence of bad character could become relevant as part of the issue of damages. However, evidence of specific instances of misconduct would be limited to asking questions on cross-examination of reputation witness as to whether the bad act would impact the opinion of the person’s character or reputation. Ind. Evid. Rule 405(b).
Evidence of convictions for certain felonies and crimes of dishonesty would be admissible provided they met the requirements of Ind. Rule of Evidence 609. The conviction has to be for a crime or an attempt of a crime involving (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement. The conviction must less than 10 years old, absent approval by the court of older convictions.

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