How To Impeach A Witness In A Court Case

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“I need a memo, quick!”:

Using Short, Timed Memos To Motivate Student Learning

Laurel Currie Oates Mimi Samuel

Seattle University School of Law

Western Regional Legal Writing Conference September 20, 2014

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2 Legal Writing I

Spring 2014

Assignment Sheet: Memo 6 (In-Class Research and Writing Exam)

Assignment:

On Monday, April 14, 2014, you will take an in-class research and writing exam (Memo 6). The exam will consist of one question for you to research and answer during class. The exam is open book: You may bring any materials that you wish with you, and you may use fee-based and free internet sites in your research. In particular, I suggest that you bring your Bluebook and Washington Style Sheet. You may not, however, contact any other person, electronically or otherwise, during the exam.

Practice Questions:

In class on Wednesday, April 9, we will walk through the research and analysis of two sample questions. I will provide sample answers for these questions. In addition, I will post one more question and sample answer for you to use as a practice test. The sample answers to the practice questions are representative of the length and depth of analysis that would receive an “A” on the in-class exam.

Grading:

The exam will be graded on (1) the thoroughness of the research, (2) the quality of the analysis, and (2) the presentation of the answer including writing style and citation. The grade on this memo constitutes 5% of your course grade.

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3 Legal Writing I

Spring 2014

Name: ____________________________

Memo 6: In Class Research Exam

Instructions: Research the questions set out below and send me an e-memo with the answers. You may use any resources that you wish; however, you may not contact any other person for assistance. Email me your e-memo (msamuel@seattleu.edu) no later than the end of class today. Please compose your e-memo as a Word document and send it as an attachment. In addition, please return this sheet to me after you have submitted your e-memo.

Assignment: We are representing Olga Kleyner, a 16-year-old who has been charged with simple assault in juvenile court in Cowlitz County. Her trial is coming up next month. Her mother, who is not a witness in the case, is hearing impaired. She wants to attend the trial and is concerned that she will not be able to follow the proceedings without a sign language

interpreter.

Would you please check the RCW as well state and local court rules to determine whether we can have a sign language interpreter appointed for Ms. Kleyner’s mother during the trial. If so, please determine (1) how far in advance we need to request the interpreter and if there are any special procedures we need to follow, and (2) whether she has to pay for the interpreter.

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SAMPLE ANSWER

You have asked me to determine whether we can have a sign language interpreter appointed for Ms. Kleyner’s mother during the trial. Specifically, you have asked me to determine (1) how far in advance we need to request the interpreter and if there are any special procedures we need to follow, and (2) whether she has to pay for the interpreter.

A sign language interpreter may be appointed for Ms. Kleyner’s mother pursuant to RCW 2.42.120, which provides that “[i]f the parent … of a juvenile brought before a court is hearing, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings.” RCW 2.42.120 (2).

Although the state court rules provide for the use of interpreters for hearing impaired individuals, they do not provide any specific procedures. GR 11. Therefore, we must look to the Cowlitz County Local Rules. Moreover, the Juvenile Court State Rules state that the Superior Court rules will govern when they are not inconsistent with relevant statutes or the Juvenile Court Rules. JuCR 1.4.

In order to request for an interpreter in Cowlitz County, we must submit a written request to the Interpreter Coordinator at least two weeks in advance. CCLAR 11(a).

Alternatively, the request could be sent via email. In our request, we must include the date, time, estimated length, and type of hearing. CCLAR 11(b).

Moreover, Ms. Kleyner’s mother would not have to pay for the interpreter. As

mentioned above, the RCW provides that the appointing authority must pay for the interpreter. RCW 2.42.120 (2). State and local rules do not vary this statute.

If you have any further questions or would like me to do additional research, please let me know.

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Professor Laurel Currie Oates Legal Writing I

Spring 2014

Samples from 2014

In-Class Research and Writing Assignment

I am trying to whether we should call Amanda Nickerson as a witness is our upcoming products liability trial. Unfortunately, she has several prior convictions and, if I am

remembering correctly, some but not all prior convictions can be used to impeach the credibility of a witness. Her prior convictions are as follows:

1999: Assault in the second degree under RCW 9A.36.021. (Class B felony punishable by no more than 10 years in prison)

2006: DUI conviction under RCW 46.61.502 (gross misdemeanor punishable by no more than 364 days in jail.)

2009: Possession of stolen property (third degree) conviction under RCW 9A 56.170 (gross misdemeanor punishable by no more than 364 days in jail.)

Ms. Nickerson was over the 18 when she committed the offenses. However, she has not been required to serve any jail time. Instead, she received suspended sentences and performed community service.

Can you please check the Washington Rules of Evidence and determine whether any of these prior convictions can be used to impeach Ms. Nickerson’s credibility as a witness. I need just a short memo.

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6 Instructions:

1. In researching this question, you can use free sources, Westlaw, WestlawNext, Lexis, or Lexis Advance. In writing the memo, you may refer to your Handbook, your Bluebook, and your Washington Style Sheet. However, you may not consult with any person, either face to face or through any media. Your work must be your own.

2. In grading your memo, I will be looking to see if you found the applicable rule, whether you read that rule correctly, whether you correctly applied the rule to the facts of your case, and whether you presented your analysis clearly and concisely using correct grammar and punctuation. You should also use the correct citation form for your citations. In citing to the evidence rules, use ER [rule number], and use the Washington rules in citing to cases and the RCW.

3. Use the typical format for an e-memo. Include an introductory paragraph followed by your analysis. Do not include a separate statement of facts.

4. There is no word limit. However, be concise.

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Student Examples Example 1:

You have asked me to determine whether Amanda Nickerson’s prior convictions can be used to impeach her credibility as a witness under the Washington Rules of Evidence. After researching the relevant law, I have determined that Ms. Nickerson’s third degree possession charge would likely be admissible. Her other two charges would likely be barred.

The Washington Rules of Evidence allow for two ways in which evidence of a prior conviction may be used to impeach a witness: (1) if the crime was punishable by death or more than one year in prison and the court determines that the probative value of admitting this evidence outweighs the prejudice of the party against whom the evidence is offered; or (2) if the crime involved dishonesty or false statement, regardless of the punishment. ER 609(a).

However, evidence of a conviction is not admissible if more than 10 years has passed since the conviction unless the court determines that the probative value of the conviction outweighs any prejudicial effects in the pursuit of justice. ER 609(b). Additionally, opposing counsel must give sufficient advance notice that it intends on using such evidence so that fair notice is given to contest the use of such evidence. Id.

Accordingly, although Ms. Nickerson’s assault conviction could be punishable by more than one year in prison, because it is well over 10 years old, it will be inadmissible. Courts have concluded that the older a conviction is, the less probative it is of the witness’ credibility. See e.g. State v. Gomez, 75 Wn. App. 648, 652, 880 P.2d 65 (1994). In order to admit this conviction, the court would balance the following six-factors to determine the probative value: (1) the length of the defendant's criminal record; (2) remoteness of the prior conviction; (3) nature of the prior crime; (4) the age and circumstances of the defendant; (5) centrality of the credibility issue; and (6) the impeachment value of the prior crime. State v. Ong, 153 Wn. App. 1016, pinpoint, add the parallel cite. (2009). As a result, it is likely that the assault will not be admissible because the conviction is 14 years old, it was Ms. Nickerson’s only violent felony, and it is not central to her credibility as a witness.

Second, although both the DUI and the possession convictions fall within the 10-year time limitation, it does not automatically follow that they are admissible. See Gomez, 75 Wn. App at 652. Instead, the court will generally exclude this evidence if the substance of the conviction has little bearing on the witness’ credibility. Id. As a result, because each of these convictions do not meet the requirement of ER 609(a)(1), the focus turns to whether the crime involved dishonesty or a false statement.

Dishonesty is defined as the act or practice of telling a lie, or of cheating, deceiving, and stealing. State v. McKinsey, 116 Wn. 2d 911, 914, 810 P.2d 907 (1991). It is reasonable to conclude that the DUI conviction does not entail dishonesty as defined by the courts; however, a conviction for possession of stolen property does involve dishonesty and is admissible. Id. at 913. Although McKinsey dealt with a conviction of first-degree possession of stolen property, the court explicitly overruled a prior case that held third-degree possession as inadmissible. See State v. Zibell, 32 Wn. App. 158, 165, 646 P.2d 154 (1982), overruled by McKinsey, 116 Wn. 2d at 914.

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As a result, it is likely that Ms. Nickerson’s prior third degree possession charge could be admitted because the courts consider it to involve dishonesty and it is within the 10 year time period.

Example 2:

TO: Supervising Attorney FROM:

RE: Nickerson witness credibility

You have asked me to research the Washington Rules of Evidence to determine whether any of Amanda Nickerson’s three prior convictions could be used to impeach her credibility as a witness. Neither of Ms. Nickerson’s first two convictions could be used to impeach her credibility; however, her conviction for possession of stolen property could be used.

Rule ER 609 – Impeachment by Evidence of Conviction of Crime

The rule that governs the impeachment of a witness’ credibility is ER 609, which states that evidence that a witness has committed a crime can be admitted:

if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the

probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

ER 609(a).

However, evidence of a conviction is not admissible if more than 10 years has elapsed since the time of conviction or since release from imprisonment (whichever is longer). ER 609(b). Therefore, to be admissible, the conviction in question must have occurred within the last 10 years and must have been punishable by imprisonment in excess of 1 year, or the conviction must have involved dishonesty or false statement.

1999 Assault in the second degree conviction

Ms. Nickerson’s conviction for second degree assault in 1999 is a conviction that is punishable by no more than 10 years in prison. RCW 9A.36.021. This would meet the first requirement of ER 609(a); however, the conviction is more than ten years old. Because Ms. Nickerson had her sentence

suspended, she was never released from confinement, so only the date of her conviction applies for the 10 year time limit. See ER 609(b). Therefore, the assault conviction would only be admissible if “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.” Id. In State v. Gomez, the Court states that the factors that a trial court are required to balance before admitting prior convictions are “(1) the length of the defendant's criminal record; (2) the remoteness of the prior conviction; (3) the nature of the prior crime(s); (4) the age and circumstances of the defendant; (5) the centrality of the credibility issue; and (6) the impeachment value of the prior crime(s).” State v. Gomez, 75 Wn. App.

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648, 651-52, 880 P.2d 65, 67 (1994). Because Ms. Nickerson’s criminal record is not long, her conviction for assault was over 10 years ago, and the fact that assault has little to do with a products liability trial, it is likely that Ms. Nickerson’s assault conviction could not be used to impeach Ms. Nickerson’s credibility.

2006 DUI Conviction

Ms. Nickerson’s DUI conviction in 2006 is punishable by no more than 364 days in jail. RCW 46.61.502. With a punishment of less than 1 year in jail, this conviction fails the first part of the ER 609(a) test. A DUI conviction also does not involve dishonesty or false statement; therefore, it would not meet the second part of the test, making it so that Ms. Nickerson’s DUI conviction could not be used to impeach her credibility.

2009 Possession of Stolen Property Conviction

The punishment for a third degree possession of stolen property conviction is also less than one year. See RCW 9A 56.170. However, in State v. McKinsey, the Court held that a possession of stolen property conviction (regardless of the degree) “involves dishonesty.” State v. McKinsey, 116 Wn.2d 911, 913, 810 P.2d 907, 909 (1991). This case specifically overruled another case where third degree possession of stolen property was found not to involve dishonesty. Id. at 914. Since her possession of stolen property conviction involves dishonesty, Ms. Nickerson’s conviction in 2009 could be used to impeach her

credibility as a witness.

Conclusion

Ms. Nickerson’s 1999 assault conviction could not be used to impeach her credibility as a witness because it does not fall within the 10 year time limit. Ms. Nickerson’s 2006 DUI conviction was not punishable by more than 1 year in jail, which made it inadmissible. However, because the 2009 conviction of possession of stolen property involves dishonesty, it will likely be admissible as evidence against Ms. Nickerson’s credibility as a witness. If you have any additional question, or need me to do further research, please let me know.

Example 3:

TO: Supervising Attorney FROM: Intern

RE: Amanda Nickerson, Admissibility of Prior Convictions for Purpose of Impeachment

You have asked me to determine whether any of Ms. Nickerson’s prior convictions can be used to impeach her credibility as a witness in our upcoming products liability trial. I have

determined that Ms. Nickerson’s conviction for the possession of stolen property is admissible for purposes of impeachment.

The Washington Rules of Evidence state that, for the purpose of attacking the credibility of a witness in a civil case, evidence of a prior criminal conviction can be used to impeach the credibility of a witness if the information is elicited from the witness or established by public record during examination of the witness. ER 609(a). However, evidence of a prior conviction

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can only be used for the purpose of impeachment only if

[T]he crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

ER 609(a)(1) – (2).

The Washington Rules of Evidence have also imposed a time limit on the admissibility of criminal convictions for the purposes of impeachment of a witness. The Rules of Evidence declare:

[E]vidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, 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.

ER 609(b).

1. Assault Charge

Ms. Nickerson’s assault charge was an offense punishable by more than one year; assault in the second degree is punishable by no more than ten years in prison. RCW 9A.36.021. Ms.

Nickerson’s assault conviction occurred more than ten years ago and she did not serve any jail time; therefore, evidence of the conviction is not admissible unless the court determines that the probative value of the conviction substantially outweighs the prejudicial effect of admitting the evidence. The court would most likely not admit evidence of Ms. Nickerson’s prior assault conviction. The probative value of Ms. Nickerson’s prior assault conviction is likely small for the purposes of a products liability trial; however, it could have a large prejudicial effect on Ms. Nickerson’s case.

2. DUI Conviction

Ms. Nickerson’s DUI conviction is not admissible for the purposes of impeachment. The conviction was not punishable by more than one year and the conviction did not involve dishonesty or false statement.

3. Possession of Stolen Property

Ms. Nickerson’s conviction of stolen property in 2009 could be used to impeach her credibility. Although Ms. Nickerson’s conviction for possession of stolen property was not punishable by

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more than one year in jail, it is considered a crime involving dishonesty or false statement. The court has held that the possession of stolen property is per se admissible for impeachment purposes under ER 609(a)(2) as it a crime of dishonesty. State v. McKinsey, 116 Wn.2d 911, 912, 801 P.2d 908 (1991). Finally, Ms. Nickerson’s possession of stolen property conviction occurred within the last ten years, so it is not barred from admission under the Rules of Evidence. In conclusion, Ms. Nickerson’s assault charge and DUI charge are likely not admissible in the upcoming products liability trial. However, Ms. Nickerson’s possession of stolen property conviction is likely admissible. The rule states that information regarding a witness’s prior conviction is admissible if it is elicited from the witness or established by public record during examination of the witness. If it is damaging to our case to have information regarding Ms. Nickerson’s possession of stolen property charge revealed, it is possible that we could have Ms. Nickerson refrain from taking the stand during trial.

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TO: Extern

FROM: Supervising Attorney, Public Defender’s Office DATE: March 31, 2014

RE: Access devices

We represent Ms. Carol Reem, who has been charged with three counts of Possession of Stolen Property in the Second Degree under RCW 9A.56.160. Please assume the following facts.

 At 11:45 p.m. on March 21, 2014, Ms. Carol Reem was arrested on an outstanding warrant on an unrelated charge.

 During a valid search incident to the arrest, the police found the following items in Ms. Reem’s coat pocket:

 Two Visa cards. One card had the name “Courtney Lee” on the front of the card, and the other card had the name “Kerry Harrison.” Both cards had an

“activation sticker” on the front. Neither card was signed.  A AAA membership card in Ms. Lee’s name.

 The police contacted the credit card company and learned that the cards were

replacement cards. According the credit card company, the cards could only have been activated via phone calls placed from Ms. Lee’s and Ms. Harrison’s home phone

numbers. Neither of the cards had been activated.

 Both Ms. Lee and Ms. Harrison told the police that they had ordered replacement cards but had never received those cards. Neither Ms. Lee nor Ms. Harrison had reported the replacement cards as missing or stolen or de-activated or cancelled their accounts.  There is no evidence that the AAA card had been used.

 The police believe that all three cards were stolen from unlocked mailboxes.

Can you please determine whether the credit cards and the AAA card are “access devices” as that term is defined in 9A.56.010(1)? At this point, do not research or discuss any of the other elements of the crime or any other issues.

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13 To: Laurel Oates, Supervising Attorney

From:

Date: March 31, 2014

Re: Carol Reem – Access Devices Defined per RCW 9A.56.010(1)

You have asked me to determine whether credit cards that have not been activated and a AAA membership card belonging to others are “access devices” as defined by RCW 9A.56.010(1). It is likely that a court will find that these items are “access devices.”

A person is guilty of Possession of Stolen Property in the Second Degree if “[h]e or she is possess a stolen access device.” RCW 9A.56.160(1)(c). An access device is defined in part as “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value.” RCW

9A.56.010(1).

Non-Activated Credit Cards. While it may be a close call, a court will likely find that the two credit cards found in the possession of our client are access devices. The Washington Court of Appeals has held that the statutory definition of an access device only requires that the device “can be used to access anything of value.” State v. Clay, 144 Wn. App. 894, 898, 184 P.3d 674 (2008). A credit card is a device that can be used to obtain something of value. Additionally, “the statute does not require that that the access device be activated.” Id. In coming to this conclusion, the court stated that RCW 9A.56.010(1) “focuses exclusively upon the capacity of the device to be used in the manner described and does not include within its definition of access device any reference to the status of that device with its issuer.” Id. at 898-99.

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On the other hand, there is Washington State Supreme Court case that could potentially aid our client. In that case, the court held that a non-activated credit card found in the possession of another individual was not an access device. State v. Rose, 175 Wn.2d 10, 18, 282 P.3d 1087 (2012).

However, the court made clear that Rose could be distinguished from Clay in that the credit card in question in Rose was not tied to an active account, therefore, it could not be used to gain anything of value. Id.

Our client was found to have two credit cards in her possession that were issued to other individuals. Unlike the credit card in Rose, the credit cards in our case are tied to existing accounts. While they may not have been activated, this fact does not preclude the court from determining that the cards are access devices. See Clay, 144 Wn. App at 898-99. We may be able to distinguished fClay,because the cards in our case could only be activated from the home phone numbers of the true owners. This fact may make it highly improbable that our client would have been able to activate the cards. Thus she would have likely been unable to obtain anything of value. That being said, this would be a very difficult argument to win, and the court would likely consider that fact as irrelevant and the credit cards as access devices.

The AAA Membership Card. The AAA membership card found in our client’s possession would also likely be considered an access device. RCW 9A.56.010(1) states that an access device is any “card” that can be used to obtain anything of value. Individuals who are members of AAA use their

membership cards to access roadside assistance services as well as other benefits such as merchant discounts. These facts would satisfy the “anything else of value” element of the statute. RCW

9A.56.010(1). The fact that there is no evidence that the card was used is irrelevant because the statute states that an access device is one that “can be used” and not actually used. Id.

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In conclusion, a court will likely find that the credit cards and the AAA membership card found in our client’s possession are access devices as defined by RCW 9A.56.010(1). Please let me know if you have any other questions or would like me to do any additional research

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16 Professor Laurel Currie Oates

Legal Writing I Spring 2014

Practice Questions Question 1:

Our client, Phronh Chan, reports that he found a summons and complaint in his private mailbox at Mailboxes R Us. Because Mr. Chan lives in Cambodia from September through March of each year, he uses the mailbox to receive mail when he is out of the country. Although Mr. Chan has a Seattle address on his Washington driver’s license, that address is his sister’s

address. Under the Washington statutes governing service of process, is service valid when the documents are left at the defendant’s private mailbox?

Question 2:

Our client operates a series of meatpacking plants around the state and is very interested in the outcome of a land-use case that was just filed in Division II of the Court of Appeals. The client would like us to file an amicus curiae brief on its behalf. Could you please check the court rules to determine whether we need permission from the court to file an amicus brief, and if so, how we obtain that permission, and when the brief is due? The hearing on the appeal is currently scheduled for May 7, 2013. Thanks very much.

Question 3:

We have a contested divorce proceeding coming up next month in Cowlitz County Superior Court. Our client, who was a “mail order bride,” is from Laos and speaks limited English, so we will need to have an interpreter for her. Would you please check the RCW and state and local court rules to determine (1) what procedures are necessary to ensure that the court appoints an interpreter for her and (2) whether we have pay for the interpreter? Thanks very much.

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