1. Two C’s of Evidence: Character and Confrontation Deborah Jones Merritt Moritz College of Law www.merrittevidence.com

2. What Is Character Evidence?

3. Character Evidence Shot the Victim

4. Who Dented the Car?

6. 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....

7. Judge reading motion in limine to exclude character evidence

8. The Character Evidence Trail

9. 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.

10. Is It Character Evidence? Defendant shot the victim Eyewitness saw defendant Defendant confessed DNA links defendant

11. 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

12. 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)

13. 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

14. The Mercy Rule The accused may...Then the state may... Offer evidence of his own pertinent trait Offer rebuttal evidence on the same trait

15. 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

16. 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

17. Witness’s Character for Untruthfulness Ohio Rule of Evidence 404(A)(3)

18. Acts Used to Prove Something Other than Propensity MurderIdentification “Bloods” Member: Violent “Bloods” Member: Motive

19. Acts Used to Prove Something Other than Propensity Rule of Evidence 404(B) Evidence against any party Evidence for any purpose other than propensity Including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ORC 2945.59 Only evidence against criminal defendant Motive, intent, absence of mistake or accident, scheme, plan, or system

20. 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)

21. Acts Used to Prove Something Other than Propensity State v. Morris, Ohio S. Ct. No. 2010- 1842, reviewing 2010 WL 3528992 (Ohio 9 th Dist. Sept. 13, 2010) –Is review under 404(B) de novo or for abuse of discretion? –Oral argument set for November 1

22. 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

23. Habit Not Habit Notifying family about travel Making same-day call after stress test Driving same route from work to home Pattern of mowing lawn Defrauding purchasers Making false allegations Using excessive force

24. 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.

25. The Character Evidence Trail

26. Restrictions on the Manner of Proof Rule 405(A) limits manner of proof Proof only by reputation or opinion evidence Cross examination on specific acts Mercy Rule

27. 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”

28. Restrictions on the Manner of Proof Rule 609: Evidence of convictions Rule 608(B): Other proof only by reputation or opinion Cross examination on specific acts Untruthfulness

29. The Character Evidence Trail

30. 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

31. 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)

33. The Second C: Confrontation

34. In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.... The Sixth Amendment Someone who makes a testimonial statement

35. In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.... cross-examine people who make testimonial statements against him.... Sixth Amendment Under Crawford

36. Applying Crawford: Two Threshold Questions Admissible under state rules? Offered against a criminal defendant?

37. 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 cross- examine the witness?

38. 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

39. Clearly Testimonial Grand jury testimony Courtroom testimony Affidavits Depositions Signed confessions Responses to conventional police interrogation

40. Current Controversies 1.Other statements to police 2.Dying declarations 3.Laboratory reports 4.Expert opinions

41. 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

42. 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. Do you know his last name?

43. 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

44. 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.”

45. 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”

46. 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

47. 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

48. 3. Laboratory Reports Melendez-Diaz v. Massachusetts (2009): Lab reports are testimonial Bullcoming v. New Mexico (2011): Surrogate analyst may not testify

49. 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)

50. 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”

51. 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)

52. 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

53. 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

54. Will Crawford Survive? Will the Court revert to the reliability standard of Ohio v. Roberts? Will it adopt a new Sixth Amendment principle?