Evidence Flashcards
(10 cards)
Is the detective properly qualified as an expert, and if so, is his anticipated testimony properly admitted as expert testimony?
The detective’s expert testimony is admissible because (1) the detective is qualified as an expert witness, (2) the detective’s testimony will be helpful to the jury, (3) the detective’s testimony will be based on sufficient facts, and (4) the detective will reliably apply reliable principles to the facts.
Detective’s expert testimony
A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702
Is the photograph of Defendant’s tattoo and the former gang leader’s anticipated testimony about the tattoo inadmissible character evidence or admissible non-character, other act evidence?
The photograph of Defendant’s tattoo and testimony about it is inadmissible if offered as propensity character evidence but may be admissible to prove Defendant’s membership in the gang and motive to harm its enemies.
FRE 404
The second issue is whether the photograph of Defendant’s tattoo and the former gang leader’s testimony about it is admissible to establish that Defendant was a member of The Lions gang. Federal Rule of Evidence 404(a)(1) states that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Under this rule, evidence of a defendant’s propensity to engage in criminal behavior is inadmissible to establish the defendant’s likely conformity with that propensity at the time of the crime charged. Moreover, Rule 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Defendant’s propensity for committing crimes
Courts have held that evidence of a defendant’s gang tattoos is inadmissible when used by the prosecution to establish the defendant’s gang membership as a means toward establishing the defendant’s propensity for committing crimes. When offered for such purposes, such evidence is propensity character evidence under Rule 404(a)(1) and its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403. See, e.g., United States v. Thomas, 321 F.3d 627, 631 (7th Cir. 2003) (quoting United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996) (“[W]e have found tattoos inadmissible when they are only admitted to show membership in a gang, because [of] ‘the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury’s negative feelings toward gangs will influence its verdict.’”)).
Evidence of other crimes
Conversely, Rule 404(b)(2) states that evidence of other crimes, wrongs, or acts “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Courts have held that evidence of a defendant’s gang tattoos to establish the defendant’s membership in a gang is admissible under Rule 404(b)(2) and Rule 403 to show that the defendant was the member of a joint venture or conspiracy (the gang). See United States v. Suggs, 374 F.3d 508, 517 (7th Cir. 2004) (“Tattoos that help to establish gang membership are admissible to support a showing of a joint venture or conspiracy.”); United States v. Lewis, 910 F.2d 1367, 1372 (7th Cir. 1990) (finding evidence of the defendant’s gang tattoos admissible “to establish a joint venture”). There is also case support for the prosecutor’s argument that evidence of gang membership may be relevant and admissible to show motive. See United States ex rel. Hairston v. Warden, 597 F.2d 604, 607–08 (7th Cir. 1979) (finding evidence of the defendant’s gang membership relevant and admissible to help establish motive for a murder).
If the prosecution offers the tattoo as “other act” evidence under Rule 404(b)(2) to prove Defendant’s membership in a particular gang (The Lions), as explained through the former gang leader’s trial testimony, such evidence would help to establish Defendant’s potential motive as a result of his role in the gang (see Point Three), and his identity as the shooter. In such circumstances, if the Court finds, under Rule 403 that the probative value of the photograph of the tattoo is not substantially outweighed by the danger of unfair prejudice, the court may admit the evidence as other act, non-propensity identity evidence under Rule 404(b)(2).
Is Victim’s anticipated testimony describing his dispute with a gang boss and the boss’s head nod to Defendant relevant to Defendant’s motive, intent, and/or identity?
Victim’s anticipated testimony describing his dispute with a gang boss and the boss’s head nod to Defendant is relevant to show that Defendant had the mens rea for attempted murder (intent to kill). It also circumstantially helps prove Defendant’s identity as the perpetrator of the attempted murder.
Relevant evidence
The third issue is whether Victim’s anticipated testimony about his dispute with the gang boss and the gang boss’s subsequent head nod to Defendant is relevant. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “Relevant evidence is admissible” unless otherwise inadmissible pursuant to constitutional provisions or some other rule. Fed. R. Evid. 402.
Evidence of motive
The anticipated evidence helps establish a possible motive for Defendant’s alleged violence against Victim: enforcement of gang loyalty or resolution of a gang dispute. Evidence of motive is generally admissible in murder and attempted murder cases because the question of whether the defendant intended to kill the victim is a fact of consequence in determining the action, and the defendant’s motive to kill the victim makes this fact more probable. Cf. State v. Matthews, 471 N.E.2d 849, 852 (Ohio Ct. App. 1984) (“Motive is generally relevant in all criminal cases since it is assumed that human behavior is prompted by a desire to achieve specific results.”). In addition, evidence of motive is circumstantially relevant to prove identity because it has some tendency to make it more probable that Defendant rather than another individual (i.e., someone not in the gang) shot Victim.
