JONES ON EVIDENCE
`CIVIL AND CRIMINAL
`7TH EDITION
`
`PGS Exhibit 1109, pg. 1
`PGS v. WesternGeco (IPR2014-00689)
`
`

`
`JONES ON
`EVIDENCE
`CIVIL AND CRIMINAL
`7TH EDITION
`
`by
`Clifford S. Fishman
`
`Professor of Law
`The Columbus School of Law
`The Catholic University of America
`
`Volume 5
`§§ 32:1-38:4
`
`THOIVISOISI
`*
`WEST
`
`Mat #40097246
`
`PGS Exhibit 1109, pg. 2
`PGS v. WesternGeco (IPR2014-00689)
`
`

`
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`PGS Exhibit 1109, pg. 3
`PGS v. WesternGeco (IPR2014-00689)
`
`

`
`EVIDENCE, 7th Ed
`
`MISCELLANEOUS EXCEPTIONS
`
`§35:49
`
`Massachusetts Ann. Law ch. 233 § 21(A) is also substantively identi­
`cal to the federal rule:
`§ 21 A. Evidence Relating to Reputation in a Group of Habitual As­
`sociates. Evidence of the reputation of a person in a group with the
`members of which he has habitually associated in his work or busi­
`ness shall be admissible to the same extent and subject to the same
`limitations as is evidence of such reputation in a community in which
`he has resided.
`Each of these codifications incorporates the common law while
`recognizing that people now interact with others in a variety of "com­
`munities," not merely the residential community, and therefore permits
`evidence of a person's reputation among those different "communi­
`ties."4
`The following jurisdictions have not codified a provision dealing
`with reputation testimony as character evidence: Connecticut, the
`District of Columbia, Georgia, Missouri, New York, and Virginia. The
`law in those states does not differ significantly from those which have
`codified the rule. See generally Chapters 14-16.
`
`VI. PRIOR CONVICTIONS AND CIVIL JUDGMENTS
`
`In general
`§ 35:49.
`As a general proposition it would be fundamentally unfair to permit
`a litigant in a current trial to introduce a judgment in a prior case as
`proof of the underlying facts at issue in the current case. Unless the
`adverse party in the current trial already had a fair opportunity to
`contest the fact in the previous litigation,1 to allow such evidentiary use
`would interfere with or prevent a litigant in the current case from hav­
`ing his or her "day in court."
`There is a second reason why, as a general proposition, a judgment
`in one case should not be admissible in another case to prove any fact
`essential to that judgment. If offered for that purpose, the judgment is
`
`4- See in Volume 3, see §§ 16:20-
`'5:23, and in this volume, § 35:38, supra.
`!• Where the party has had such an op­
`portunity, the prior judgment is likely to
`satisfy the doctrines of res judicata, col-
`ateral esto ppel or issue preclusion, sub­
`
`jects which are about as far beyond the
`scope of this treatise as the orbit of Pluto
`is beyond the Earth's. But these matters
`are discussed very briefly in § 35:55, for
`readers who want a brief overview and for
`whom Pluto is a bit too much of a trip.
`367
`
`a model for the
`, is substantively
`
`reference to his
`time in the com-
`/ith which he then
`the hearsay rule.
`
`ovided a model for
`
`son's character at a
`'s reputation with
`nunity in which the
`person then habitu-
`puted.
`
`emphasizing that char
`,vcn only by rep J
`expression of op
`
`Committee Note to Fed. R
`F.R.D.185,212.
`
`PGS Exhibit 1109, pg. 4
`PGS v. WesternGeco (IPR2014-00689)
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`

`
`§ 35:49
`
`JONES ON EVIDENCE, 7th Ed
`
`hearsay.2 It is an "assertion" (i.e. a "statement") made by the earlier
`judge or jury, "other than while testifying at the [eurrent] trial or hear­
`ing, offered to prove the truth of the matter asserted."8
`A judgment in a civil case, or a conviction in a criminal case, is not
`hearsay, however, if offered to prove that a judgment was rendered or a
`conviction was entered. If offered for this purpose, (he judgment or
`conviction is an operative legal fact because it directly affects the legal
`rights of the parties. A civil judgment determines which party is entitled
`to money, property, or other relief. A conviction establishes that the
`defendant must submit to sentence imposed by the court, and even af­
`ter the sentence has been served, may have continued legal impact. A
`convicted felon may be ineligible to vote and may be disqualified from
`certain professions, for example, and will be eligible for habitual of­
`fender status if he or she is again convicted of a felony.
`A civil judgment is hearsay, however, if offered to prove the truth of
`a fact which underlies the judgment. That a jury found that D was
`negligent and that her negligence caused an auto collision at a particu­
`lar intersection on January 1, 2002, if offered at a later trial to prove
`that D was negligent that day, would be hearsay, because the jury's
`verdict—its "statement"—was made "other than while testifying" at
`the new trial or hearing at which it i s being offered. Similarly, that D
`was convicted of selling drugs to an undercover officer at 4 p.m. on
`December 1, 2001 at the corner of 14th and Girard in Washington,
`D.C., is hearsay, if offered to prove that D was in Washington and not,
`say, Chicago on that afternoon.
`For both of these reasons—the fundamental unfairness of it, and the
`hearsay nature of a prior judgment when offered in a new trial, former
`judgments are not generally admitted for a hearsay purpose.
`The law in most jurisdictions recognizes two narrow exceptions to
`the exclusion of a prior judgment as proof of the facts underlying the
`judgment. The first exception admits judgments of conviction for a
`serious crimes. Here the underlying theory is that the judgment is so
`trustworthy that the normal qualms are overcome. The second excep-
`
`2. In re Estate of Mask, 703 So. 2d 852,
`857-858 (Miss. 1997).
`
`3. This is the basic definition of hearsay
`codified in Fed. R, Evid. 801(c), Uniform
`Rule of Evidence 801(c), and correspond­
`ing state provisions. See generally Chap­
`368
`
`ter 24, supra. Thus it is inappropriate lo
`permit the general evidentiary use ol »
`judgment in one trial as evidence in a'1
`olher, for the same reasons that it is iiwji
`propriate for a court to accept as true pe
`judicial notice, factual findings made 1
`another case. See § 2:106.
`
`PGS Exhibit 1109, pg. 5
`PGS v. WesternGeco (IPR2014-00689)
`
`

`
`ON EVIDENCE, 7th Ed
`
`") made by the earlier
`[current] trial or hear-
`"3
`a criminal case, is not
`gment was rendered or a
`.lrpose, the judgment or
`directly affects the legal
`es which party is entitled
`tion establishes that the
`y the court, and even af-
`ontinued legal impact. A
`may be disqualified from
`eligible for habitual of­
`' a felony.
`ered to prove the truth of
`i jury found that D was
`uto collision at a particu-
`d at a later trial to prove
`irsay, because the jury's
`than while testifying" at
`offered. Similarly, that D
`over officer at 4 p.m. on
`d G irard in Washington,
`is in Washington and not,
`
`il unfairness of it, and the
`:red in a new trial, former
`:arsay purpose,
`two narrow exceptions to
`f the facts underlying the
`nents of conviction for a
`is that the judgment is so
`come. The second excep-
`
`pra. Thus it is 'naPPr0^(V u
`I general
`in one trial us evi
`jg inil|V
`(fUI,
`•
`the same reasons
`foracourtto acccP - ^ in
`iotice, factual tindmt
`ase. See § 2:1 <16.
`
`MISCELLANEOUS EXCEPTIONS
`
`§ 35:50
`
`tion admits judgments concerning personal, family or general history,
`and boundaries. Each will be examined in turn.
`
`A. JUDGMENT OF PREVIOUS CONVICTION
`
`§ 35:50. In general
`In litigation that occurs subsequent to a person's conviction for a
`crime, the law can treat the conviction in any of several ways.
`1. In some circumstances, the prior conviction "is conclusive under
`the doctrine of res judicata, either as a bar or a collateral estoppel."1
`This use of prior convictions is unrelated to the rules of evidence. It is
`governed by constitutional principles that have nothing to do with
`hearsay.2
`2. "[I]t is admissible in evidence for what it is worth;"3 That is, the
`prior conviction may be treated as substantive evidence (which the
`fact-finder in the subsequent trial may accept or reject) that the
`convicted person in fact did what she was convicted of doing, i.e. that
`she engaged in certain conduct with a certain mental state.4 The various
`evidentiary uses to which a prior conviction may be put are discussed
`in §§ 35:56-35:59, infra.
`3. The prior conviction may be used for the limited purpose of
`impeaching a witness's (or a hearsay declarant's) character for truthful­
`ness. This use of a prior conviction will be covered in a future volume.
`4. Some prior convictions are not admissible or usable for any
`purpose. See §§ 35:58, 35:60 , infra.
`The focus here is on the second of the four categories listed above. It
`involves he arsay, because when a judge or jury in a criminal trial
`convicts the accused of a crime, it is making a statement: ''We, the jury
`l or' the judge) find (i.e. assert), that the defendant guilty of the crime
`of.
`"
`As a general proposition, at common law evidence of a prior convic-
`"'n C0UW not be admitted in subsequent litigation, to prove any of the
`
`'• Advisory Committee Note to Fed. R.
`KviJ. 803(22), 56 F.R.D. 183,313.
`•• Such uses are discussed briefly in
`infra.
`
`3' Advisory Committee Note, supra.
`
`4. West's Key Number Digest: 110
`Criminal Law
`275 (regarding pleas of
`nolo contendere); 157 Evidence
`207
`(4) (regarding use of guilty pleas in subse­
`quent civil litigation)
`
`369
`
`PGS Exhibit 1109, pg. 6
`PGS v. WesternGeco (IPR2014-00689)