IMPEACHMENT

Question 1

GENERAL CONCEPTS

Answer 1

• Impeachment refers to discrediting a witness.
• When evidence is admissible only to impeach, it is not being offered as substantive evidence (to prove some fact at issue in the case) but to show that witness can’t be trusted.

Question 2

Accrediting or Bolstering Generally Prohibited

Answer 2

• Generally, party is not permitted to bolster/accredit testimony of their witness (ex. by introducing a prior statement by witness that is consistent w/ their testimony) until witness has been impeached.

Question 3

Exceptions to Rule Against Bolstering

Answer 3

• In certain cases, party may offer evidence that witness
  made a timely complaint/a prior statement of ID (usually,
  identifying D as perpetrator of charged crime) even if this tends to bolster their in-court testimony.
• Prior ID may also serve as substantive evidence that ID was correct (see the Hearsay module).

Question 4

Any Party May Impeach

Answer 4

• Witness may be impeached by any party, including party who called them.

Question 5

Tip

Answer 5

• When a question involves party impeaching their own witness, be sure to avoid the following wrong answer choices reflecting CL, which prohibited impeaching your own witness unless the witness:
  (1) Is an adverse party/identified w/ adverse party;
  (2) Is hostile & affirmatively uncooperative;
  (3) Is one whom party is required by law to call; or
  (4) Gives surprise testimony that is affirmatively harmful to party calling them.

Question 6

IMPEACHMENT METHODS

Answer 6

• Witness may be impeached either by
  (1) cross (eliciting facts from witness that discredit their own testimony) or
  (2) extrinsic evidence (calling other witnesses/ introducing docs that prove impeaching facts).
• Certain grounds for impeachment require foundation be laid during cross b/f extrinsic evidence can be introduced.
• Other grounds allow impeachment to be accomplished only by cross & not by extrinsic evidence. (Note: The term “cross-examination” is used for convenience b/c it is usually an adverse witness who is impeached. But remember that a party may impeach their own witness, which would be on direct/redirect examination.)
• In the discussion that follows:
• Impeachment methods 1-4 (prior inconsistent statements; bias; sensory deficiencies; contradiction) involve impeaching a witness w/ facts that are specific to the current case; and
• Impeachment methods 5-7 (opinion/reputation evidence of untruthfulness; prior convictions; bad acts) involve impeaching witness w/ their general bad character for truthfulness

Question 7

Prior Inconsistent Statements
MED

Answer 7

• Party may show, by cross/extrinsic evidence, that witness has, on another occasion, made statements inconsistent w/ their current testimony.
• To prove statement by extrinsic evidence, a proper foundation must be laid & statement must be relevant to some issue in the case.

Question 8

Tip

Answer 8

• Most inconsistent statements are clearly contradictory
  (ex. witness testifies that light was red, but previously told someone that light was green).
• A prior statement that omits a fact asserted during the current testimony may constitute an inconsistency
  if it would have been natural for witness to include fact in statement if they believed it to be true. On its own, witness’s present lack of memory of a fact is generally not inconsistent w/ a prior statement relating that fact (however, ct may find an inconsistency where witness’s memory loss appears to be feigned). On the other hand, if witness remembers fact on the stand, but didn’t remember fact in prior statement, the earlier
  lack of memory is generally considered inconsistent.

Question 9

When Admissible as Substantive Evidence

Answer 9

• Usually, prior inconsistent statements are hearsay,
  admissible only for impeachment purposes.
• If, however, testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay & may be admitted as substantive evidence of the facts stated (see the Hearsay module).
• The rationale is that statement is reliable b/c of oath, & b/c witness is now subject to cross about statement.

Question 10

Foundation for Extrinsic Evidence

Answer 10

• Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point:
  (1) Witness is given opportunity to explain/deny statement; and
  (2) Adverse party is given opportunity to examine witness about statement; and
  (3) is relevant to material issue (one other than witness’s credibility)

Question 11

Tip

Answer 11

• Opportunity to explain/deny can be given before/after intro of extrinsic evidence.

Question 12

Exceptions to Foundation Requirement

Answer 12

• Foundation requirement above (giving witness opportunity to explain/deny; allowing adverse party to examine them) does not apply:
• If prior inconsistent statement is OP’s statement
• An inconsistent statement by a hearsay declarant can be used to impeach hearsay declarant despite lack of a foundation.
• Ct may dispense w/ foundation requirement where justice requires (ex. when witness has left stand & is unavailable when their inconsistent statement is discovered).

Question 13

Bias or Interest
MED

Answer 13

Evidence that a witness is biased/has an interest in outcome of case tends to show that witness has motive to lie.

Question 14

Foundation for Extrinsic Evidence

Answer 14

• Much is left to ct’s discretion.
• Majority rule: B/f witness can be impeached by extrinsic evidence of bias/interest, they must first be asked about facts that show bias/interest on cross.
• Ct has discretion to permit extrinsic evidence even if witness admits bias.

Question 15

Tip

Answer 15

Watch for facts indicating that foundation requirement for extrinsic evidence of bias/interest has been fulfilled. Evidence that is otherwise inadmissible (like arrests/liability insurance) may be introduced if relevant to bias, provided proper foundation is laid.

Question 16

Sensory Deficiencies

Answer 16

• Witness may be impeached by showing, either on cross/by extrinsic evidence, that their faculties of perception & recollection were so impaired as to make it doubtful that they could have perceived those facts.
• Witness may also be impeached by showing they had
  no knowledge of facts to which they testified.
• No foundation requirement for proving sensory deficiency
  w/ extrinsic evidence (witness does not need to be confronted w/ impeaching fact).

Question 17

Contradictory Facts

Answer 17

• Impeachment by contradiction is a method of impeachment.
• Cross-examiner, while questioning witness, can try to make witness admit they lied/were mistaken about some fact they testified to during direct examination.
• If witness admits mistake/lie, they have been impeached by contradiction.
• However, if witness sticks to their story, issue becomes whether extrinsic evidence may be used to prove contradictory fact.
• The answer is yes, extrinsic evidence is permitted unless contradictory fact is collateral (it has no significant relevance to case/witness’s credibility)

Question 18

Opinion or Reputation Evidence of Untruthfulness

Answer 18

• Witness can be impeached w/ reputation/opinion
  evidence of their own bad character for truthfulness, to
  suggest that they were not telling the truth while on the
  stand.
• Done by calling a character witness to testify about target witness’s bad reputation/character witness’s low opinion of target witness.
• Evidence of witness’s truthful character is admissible only after witness’s character for truthfulness has been attacked.

Question 19

Conviction of Crime
HIGH

Answer 19

• Witness may be impeached by proof of conviction (arrest/ indictment is not sufficient) for certain crimes.
• Pending review/appeal does not affect use of a conviction for impeachment.

Question 20

Type of Crime: Any Crime Involving Dishonesty or False Statement

Answer 20

• Witness may be impeached by any crime, felony or
  misdemeanor, requiring dishonesty
• Ct has no discretion to bar impeachment by these crimes.

Question 21

Tip

Answer 21

Although many crimes are arguably dishonest in nature, cts interpret this category narrowly to include only crimes in the nature of “crimen falsi” (ex. perjury, false statement, criminal fraud, embezzlement, false pretense). Simple theft, is not
considered a crime of dishonesty/false statement. Look
for a crime that involves some “uttering/writing of false
words.”

Question 22

Felony Not Involving Dishonesty or False Statement

Answer 22

• Witness may also be impeached by a felony that does not involve dishonesty /false statement, but ct has discretion to exclude these convictions.
• Balancing test depends on whether witness is D in a criminal case, or someone else:
  (1) If witness being impeached is a criminal D, ct will exclude conviction if prosecution has not shown that its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.)
  (2) For all other witnesses, ct will exclude conviction if it determines that its probative value is substantially outweighed by its prejudicial effect.
• This is standard Rule 403 balancing test, which favors admitting evidence.

Question 23

Remote Convictions Generally Not Admissible

Answer 23

• Generally, if more than 10 years have elapsed since conviction/release date from confinement (whichever is later), conviction is inadmissible.

Question 24

Court May Admit in Extraordinary Circumstances

Answer 24

• Ct may admit an older conviction if:
  (1) its probative value substantially outweighs its prejudicial effect (reverse-Rule 403 balancing test that strongly favors exclusion); and
  (2) proponent gives adverse party reasonable written notice of their intent to use it.

Question 25

No Foundation Required for Extrinsic Evidence

Answer 25

• Prior conviction is usually shown by either direct /cross of witness/by introducing a record of the judgment, although other methods of proof (like testimony from witnesses) may be permitted.
• No foundation is necessary.
• If party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross), they cannot later claim on appeal that conviction was erroneously admitted

Question 26

Effect of Pardon

Answer 26

• Conviction cannot be used to impeach witness if conviction was subject to a pardon/equivalent procedure, and either:
  (1) Pardon was based on rehabilitation, & witness has not been convicted of subsequent felony; or
  (2) Pardon was based on innocence (irrespective of any subsequent convictions)

Question 27

Juvenile Convictions Generally Not Admissible

Answer 27

• Juvenile offenses are generally not admissible for impeachment purposes.
• However, in criminal case, judge has discretion to admit evidence of a juvenile offense committed by witness other than accused if evidence would be admissible to attack credibility of an adult & if evidence is necessary to a determination of accused’s guilt/innocence.

Question 28

Constitutionally Defective Conviction Cannot Be Used

Answer 28

Conviction obtained in violation of Dt’s con rights is invalid for all purposes, including impeachment.

Question 29

Bad Acts Involving Untruthfulness
HIGH

Answer 29

• Subject to trial judge’s discretion, witness may be cross-examined about act of misconduct if act is probative of truthfulness (an act of deceit/lying).
• Cross-examiner must have a good-faith basis to believe witness committed misconduct.

Question 30

Extrinsic Evidence Not Permitted

Answer 30

• Extrinsic evidence of bad acts is not permitted.
• In other words, this method of impeachment can be accomplished only by cross of witness.
• Additionally, cross-examiner cannot refer to any consequences witness may have suffered as a result of their bad act.
• Rationale is that consequence (like arrest, termination,
  etc.) is, in essence, a 3rd person’s opinion that witness committed act, & thus a form of extrinsic evidence.

Question 31

Tip

Answer 31

Remember that asking about bad acts does not include inquiring about arrests. An arrest itself is not a bad act. Thus, it is permissible to ask witness whether they embezzled money from their employer. It is not permissible to ask them whether they were arrested for embezzlement.

Question 32

IMPEACHMENT ON COLLATERAL MATTER

Answer 32

• Where witness makes statement not directly relevant to the issue in the case, rule against impeachment on a collateral matter prohibits party from proving statement untrue either by extrinsic evidence/prior inconsistent statement.

Question 33

IMPEACHMENT OF HEARSAY DECLARANT
MED

Answer 33

• Credibility of hearsay declarant may be attacked (& if attacked, may be supported) by evidence that would be
  admissible if declarant had testified as witness.
• In other words, b/c hearsay declarant functions as a sort of witness— jury has heard their statement, even if they aren’t present at trial— hearsay declarant can be impeached by any impeachment methods that we have discussed.
• In particular, hearsay declarant need not be given opportunity to explain/deny a prior inconsistent statement.
• In addition, party against whom out-of ct statement was offered may call hearsay declarant as witness & cross them about statement.
• For purposes of this rule, a “hearsay declarant” means person whose out-of-court statement has been admitted into evidence: (1) under an exception to hearsay rule, or (2) as vicarious statement of opposing party

Question 34

REHABILITATION

Answer 34

Witness who has been impeached may be rehabilitated by:

Explanation on Redirect
- Witness on redirect may explain/clarify facts brought out on cross

Good Character for Truthfulness
- When witness’s general bad character for truthfulness
was attacked (by reputation/opinion testimony, prior
convictions, or prior acts of misconduct), other witnesses may
be called to give reputation/opinion testimony about impeached witness’s good character for truthfulness.
- Character witness cannot testify about specific acts of truthful conduct by impeached witness; only reputation & opinion are allowed.

Question 35

Tip

Answer 35

Remember that rehabilitation must meet the attack. Ex. if a witness was impeached w/ their bad eyesight, it would not make sense to rehabilitate them with evidence of their good character for truthfulness. This method of rehabilitation is available only where witness’s general bad character for truthfulness has been attacked.

Question 36

Prior Consistent Statement

Answer 36

There are 2 situations in which a party can rehabilitate a
witness by introducing witness’s prior consistent statement.
(1) If witness’s testimony has been attacked by express/ implied charge that witness is lying/exaggerating b/c of some motive, a previous consistent statement made by witness b/f onset of alleged motive is admissible to rebut this evidence.
(2) If witness’s testimony is impeached on some different ground (other than a general attack on witness’s character for truthfulness), such as an inconsistency/charge of faulty memory, counsel may introduce witness’s prior consistent statement if, under the circumstances, it has a tendency to rehabilitate witness’s credibility.
- Prior consistent statement that is admissible to rehabilitate witness’s credibility also is admissible as substantive evidence of the truth of its contents (see the Hearsay module).