COP.
2. to steal; filch. 3. to buy (narcotics). 4. cop out, a. to avoid one's responsibility, the fulfillment of a promise, etc.; renege; back out. 5. cop a plea, a. to plead guilty or confess in return for receiving a lighter sentence. b. to plead guilty to a lesser charge; plea-bargain.
-Random House Unabridged Dictionary
ELIZABETHTON, Tenn. - Records show new East TN constable Barney Brown a felon - The Johnson City Press reports Mathes discovered Brown was convicted of a felony in Washington, D.C., in 1961 on burglary and theft charges.
Why not? THP sold fake ID "Driver Certificates" to 400,000 illegal aliens marked "NOT VALID FOR IDENTIFICATION", then rolls out the red carpet for the illegal alien running the White House. And former Knoxville mayor Victor "Victoria" Ashe was allegedly arrested for soliciting men in public restrooms in DC and Atlanta as a state rep wearing a dress, after being George W Bush's college roommate, fellow cheerleader and gay lover at all-male Yale Skull & Bones. Ashe graduated to running torture death camps for CIA as US ambassador to Poland.
Under TN Rules of Evidence, it is not admissible evidence to question this cop under oath regarding his criminal convictions.
Tennessee Rules of Evidence
Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes. —(a) Character Evidence Generally.-Evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused.-In a criminal case, evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same or, if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of Alleged Victim.-In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged 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 with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice. [As amended by order filed January 31, 2003, effective July 1, 2003.]
Advisory Commission Comments. Part (a) has always been the law in Tennessee for criminal prosecutions.
T.C.A. § 40-17-119 [repealed; see 1991 comments] regulates character evidence offered to prove a rape victim's alleged consent.
In civil actions, Tennessee is one of a minority of jurisdictions admitting character evidence in some situations to prove circumstantially conduct involving "moral turpitude." Spears & Solomon v. International Insurance Co., 60 Tenn. 370 (1872). The proposed rule would change that minority position; character would be inadmissible circumstantially in all civil cases. Of course, if character is directly at issue in a civil action, such as in a defamation action, character evidence necessarily is relevant and admissible under Rule 405(b).
The Commission drafted Part (b) in accord with the Supreme Court's pronouncements in State v. Parton, 694 S.W.2d 299 (Tenn. 1985). There the Court established precise procedures to emphasize that evidence of other crimes should usually be excluded. In the exceptional case where another crime is arguably relevant to an issue other than the accused's character —issues such as identity (including motive and common scheme or plan), intent, or rebuttal of accident or mistake —the trial judge must first excuse the jury. Then the judge must decide what material issue other than character forms a proper basis for relevancy. If the objecting party requests, the trial judge must state on the record the issue, the ruling, and the reason for ruling the evidence admissible. Finally, the judge must always weigh in the balance probative value and unfair prejudice. If the danger of unfair prejudice outweighs the probative value, the court should exclude the evidence even though it bears on a material issue aside from character. Finally, according to Parton, the trial judge must find that the evidence is "clear and convincing"that the defendant committed another crime.
Advisory Commission Comments [1991]. [In place of the second paragraph of earlier language, which is rescinded, insert the following language as the new second paragraph:]
The character of the victim of a sex crime is not governed by Rule 404(a)(2), but rather by T.R.Evid. 412.
Advisory Commission Comment [2003]. The third condition for admitting other crimes, clear and convincing proof, has been required by case law before and after adoption of the Rules of Evidence. This principle was first enunciated in Wrather v. State, 179 Tenn. 666 (1943), reversing a mother’s conviction for murdering her adult son by arsenic poisoning. Evidence that she killed her father-in-law and brother-in-law with arsenic was not clear and convincing. The Supreme Court again approved this standard in State v. Parton, 694 S.W.2d 299 (1985).
Advisory Commission Comment [2005]. The word “person” in Rule 404(b) has been construed to refer solely to the defendant in a criminal prosecution. State v. Stevens, 78 S.W.3d 817 (Tenn. 2002).
Advisory Commission Comment [2009]. If the accused attacks the character of the alleged victim, amended Rule 404(a)(1) allows the prosecution to prove the accused's character for the same trait. This is an additional way the accused"opens the door" to character evidence.
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. After application to the court, inquiry on cross-examination is allowable into relevant specific instances of conduct. The conditions which must be satisfied before allowing inquiry on cross-examination about specific instances of conduct are:
(1) The court upon request must hold a hearing outside the jury's presence,
(2) The court must determine that a reasonable factual basis exists for the inquiry, and
(3) The court must determine that the probative value of a specific instance of conduct on the character witness's credibility outweighs its prejudicial effect on substantive issues.
(b) Specific Instances of Conduct. —In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
Advisory Commission Comments. This proposed rule changes Tennessee law, which does not permit character to be proved by personal opinion.
Cross-examination of character witnesses for the accused raises a delicate problem. The examining lawyer can ask the witness about rumored arrests and charges concerning the defendant, because the witness's knowledge of the rumors might impeach the witness in the eyes of the jurors. If the witness admits having heard unfavorable rumors, the jury may decide that the witness's reputation or opinion testimony is entitled to little weight. If the witness has not heard the rumors, the witness's testimony may likewise be taken with a grain of salt because the witness is unfamiliar with the accused or the accused's community.
The indirect effect of such a cross-examination may be the more damaging to the accused. While the jury will be instructed to consider the rumors only as affecting the character witness's credibility, the practical danger is that such rumors —even if untrue —place the defendant's character in a bad light with the jurors. In an effort to alleviate the problem, the proposed rule sets out detailed procedural safeguards. The cross-examiner must apply to the court for permission to inquire into specific instances of conduct, the jury must be excused, and the court must determine both that a factual basis exists and that probative value for impeachment outweighs prejudicial effect on the accused's character.
Part (b) allows substantive proof of specific acts where the character is an element of a cause of action or a defense. For instance, the defendant who called a defamed plaintiff a "crook"can prove the plaintiff embezzled funds.
Rule 406. Habit; routine practice. —(a) Evidence of the habit of a person, an animal, or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person, animal, or organization on a particular occasion was in conformity with the habit or routine practice.
(b) A habit is a regular response to a repeated specific situation. A routine practice is a regular course of conduct of an organization.
Advisory Commission Comments. Tennessee has long admitted animal habit. Copley v. State, 153 Tenn. 189, 281 S.W. 460 (1925), is the leading case. Authorities supporting admissibility of human habit and business custom are collected in Tennessee Law of Evidence § 30.
The second paragraph defines habit and routine practice, emphasizing the need for a "regular response"when a person, animal, or organization is faced with a given situation.
Rule 607. Who may impeach? —The credibility of a witness may be attacked by any party, including the party calling the witness.
Advisory Commission Comments. The rule would abolish Tennessee's common law prohibition against impeaching one's own witness —the voucher rule. The present rule finds expression in King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948); Record v. Chickasaw Cooperage Co., 108 Tenn. 657, 69 S.W. 334 (1902).
The Commission believed that requiring a lawyer calling a witness to vouch for the witness's credibility too often unfairly restricts proof. Obviously there is no choice over who witnesses facts. In some instances, rigid enforcement of the voucher rule has caused Constitutional error. See Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).
See Rule 611 for the mode and order of interrogation.
Advisory Commission Comments [2000]. Decisional law prohibits a lawyer from calling a witness —knowing the testimony will be adverse to the lawyer's position —solely to impeach that witness by an inconsistent statement. See the June 1999 issue of the Tennessee Bar Journal at page 23 and Cohen et alia, Tennessee Law of Evidence (3d ed.) at § 613.1.
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 or untruthfulness, and (2) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
(b) Specific Instances of Conduct. —Specific instances of conduct of a witness for the purpose of attacking or supporting the witness's character for truthfulness, other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness's character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which the character witness being cross-examined has testified. The conditions which must be satisfied before allowing inquiry on cross-examination about such conduct probative solely of truthfulness or untruthfulness are:
(1) The court upon request must hold a hearing outside the jury's presence and must determine that the alleged conduct has probative value and that a reasonable factual basis exists for the inquiry;
(2) The conduct must have occurred no more than ten years before commencement of the action or prosecution, but evidence of a specific instance of conduct not qualifying under this paragraph (2) is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of that evidence, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conduct before trial, and the court upon request must determine that the conduct's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the witness's privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness.
(c) Juvenile Conduct. —Evidence of specific instances of conduct of a witness committed while the witness was a juvenile is generally not admissible under this rule. The court may, however, allow evidence of such conduct of a witness other than the accused in a criminal case if the conduct 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 in a civil action or criminal proceeding. [As amended by order entered January 25, 1991, effective July 1, 199, and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comments. Part (a) admits opinion as well as community reputation to prove character. Presently Tennessee restricts proof to reputation evidence. Ford v. Ford, 26 Tenn. 91, 100-01 (1846). The proposed change is minimal, however, because Tennessee has allowed a character witness on the credibility issue to opine that the fact witness should or should not be believed. Ford v. Ford, 26 Tenn. 92, 102 (1846).
Part (b) reflects the Supreme Court's view of impeachment by prior bad acts. State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), incorporated F.R.Evid. 608(b) into Tennessee case law. The proposed rule is even more specific than the federal version. It requires a jury-out hearing on probative value and basis for cross-examination, relatively recent misconduct, and notice plus analytical weighing of probative value versus unfair prejudice.
To the extent that State v. Caruthers, 676 S.W.2d 936 (Tenn. 1984), can be construed as allowing cross-examination about a prior act of rape to impeach, the proposal would change that result.
If the witness makes a sweeping claim of good conduct on direct examination, that claim may open the door to cross-examination without pretrial notice and with a lower standard of probativeness, as rebuttal of the broad claim would itself tend to show untruthfulness. Also, there may be instances where the prosecution would not discover the accused's bad acts until after the trial begins, making pretrial notice impossible; in such cases immediate notice and a hearing on the issue before the accused testifies should satisfy the spirit of the rule.
Note that the accused's failure to take the stand in face of an adverse ruling on admissibility of a prior bad act does not waive the right to assign error on appeal.
Part (c) conforms juvenile bad acts admissibility to the principles used with juvenile adjudications. See Rule 609(d).
Advisory Commission Comments [1991]. This is a technical amendment.
Advisory Commission Comments [2005]. Substituting “character for truthfulness” in place of “credibility” at the beginning and end of Rule 608(b) clarifies that contradiction impeachment by extrinsic evidence is permissible.
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 may be admitted if the following procedures and conditions are satisfied:
(1) The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence.
(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.
(b) Time Limit. —Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and 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.
(c) Effect of Pardon. —Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon 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 based on a finding of innocence.
(d) Juvenile Adjudications. —Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, allow evidence of a juvenile adjudication of a witness other than the accused in a criminal case 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 in a civil action or criminal proceeding.
(e) Pendency of Appeal. —The pendency of an appeal of a conviction does not render evidence of that conviction inadmissible. Evidence of the pendency of an appeal is admissible.
Advisory Commission Comments 2001. The Tennessee Supreme Court suggested in State v. Galmore, 994 S.W.2d 120 (1999), and State v. Taylor, 993 S.W.2d 33 (1999), that the accused in a criminal trial may need to make a jury-out offer of proof in order to reverse the trial court for an erroneous ruling that a conviction is admissible to impeach. Such error might otherwise be harmless.
Advisory Commission Comments. The Supreme Court adopted F.R.Evid. 609(a) & (b) in State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), and thereby rejected the old "moral turpitude"criterion for admissibility of convictions to impeach. Proposed Tennessee Rule 609(a) takes Morgan at face value and lists its essential elements:
(1) The time of proof ordinarily is during cross-examination, but the witness's denial triggers extrinsic evidence. This rule does not preclude questions about prior convictions during direct examination.
(2) Only felony convictions or those misdemeanor convictions involving dishonesty are competent for impeachment. See State v. Butler, 626 S.W.2d 6 (Tenn. 1981), for the Supreme Court's view that theft crimes involve dishonesty. The rule is consistent with Butler.
(3) When the witness in a criminal trial is the accused, the prosecution "must"give pretrial notice and the trial judge "must"make a determination before the accused elects to testify or not that the probative value of the conviction "on credibility"is greater than its "unfair prejudicial effect on the substantive issues."To the extent that State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984), is inconsistent, the proposal would change the result.
Note that the accused who does not take the witness stand because of an unfavorable ruling on admissibility of a prior conviction can nonetheless raise error on appeal.
For witnesses not covered by 609(a)(3), the balancing test is different. Rule 403 applies, and a conviction would be admissible to impeach unless "its probative value is substantially outweighed by the danger of unfair prejudice"or other criteria listed in that rule.
Part (b) of proposed Rule 609 restates and hopefully clarifies Morgan language concerning inadmissibility of stale convictions. To avoid the mistaken exclusion of convictions "ten years old,"the rule separates convictions with time served from those where the convict served no prison time. Normally, ten years would be measured from release from jail to commencement of prosecution.
Even old convictions can be used in certain instances, but the proposed rule requires a weighing ("substantially outweighs") of probative value versus undue prejudicial effect, with a specific factual determination by the trial judge.
Part (c) excludes only those convictions of witnesses pardoned because of rehabilitation or innocence.
Part (d) follows the current philosophy expressed in T.C.A. § 37-1-133(b) and State v. Butler, 626 S.W.2d 6 (Tenn. 1981). Constitutional confrontation issues may require admitting the juvenile record of a witness testifying against the criminal accused. See Davis v. Alaska, 415 U.S. 308 (1974).
Part (e) permits impeachment by a conviction undergoing appeal because, under Tennessee law, the convict is presumed guilty after judgment.
No comments:
Post a Comment