1015

 

Item 6 -- the drug selling -- seems the most likely to be sustained. There is nothing in common experience that says people in the drug-selling business are fiercely loyal to each other (indeed, they routinely sell each other out) so probative value is low, and it has both a prejudicial effect by bringing up drugs and crime, but also a confusion of the issues effect because the defendant is not charged with a drug crime.

I’d go with item 2 next, although I’ll bet most of you did not. The evidence does not suggest they even knew the other was a member of the club, or that it is the kind of association that fosters loyalty, and bringing up guns has an obvious prejudicial effect.

Maybe also item 5. I think most lawyers would object, but that most judges ultimately will let it in. Membership in a gang, especially one that was raided by police, tends to breed loyalty to other members, there are a lot of distracting facts being raised that confuse the issues. Gang membership is a classic impeachment issue, and most courts allow the evidence because common sense says gang members, like members of less controversial close-knit organizations (fraternities, marine corps squads, families), are loyal to fellow gang members and will lie, or at least slant the truth, in their favor.  

Note also that bias can work both ways -- bias in favor of one party or against the other. The probative value in item 5 is relevant both to show bias based on gang membership, and also bias against the state and the police based on their actions.

Questions? Email tanford@indiana.edu, and refer to 1015.

Look at items 6 through 8. If the defense objected to question 8 as irrelevant and confusing, what argument should the prosecution make in response? When you have decided, click here .