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Evidence > Credibility > Flashcards

Credibility Flashcards

1
Q

rule

ACCREDITING/BOLSTERING CREDIBILITY

A

RULE = Generally prohibited before it has been attacked

Objection = impermissible bolstering

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2
Q

exceptions

ACCREDITING/BOLSTERING CREDIBILITY

A

= rule against accrediting subject to exception where timeliness may raise an inference on the substantive issues of the case

  1. timely complaint
  2. prior identification of a person
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3
Q

timely complaint

ACCREDITING/BOLSTERING CREDIBILITY

A

= Certain cases, party may prove that the witness made a timely complaint

EXAMPLE = Evidence of a prompt complaint of a rape victim is admissible to bolster the complainant’s credibility in a subsequent criminal prosecution
EXAMPLE = Where a defendant in a criminal trial claims that a confession offered against him was obtained by coercion, he may show that he complained of mistreatment at the first suitable opportunity
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4
Q

prior identification of a person

ACCREDITING/BOLSTERING CREDIBILITY

A

Evidence of any prior statement of identification made by a witness is admissible both

  1. To bolster the witness’s testimony AND
  2. As substantive evidence that the ID was correct

Example = saying the witness picked D out of lineup two weeks after murder

RULE 801(d)(1)(C)

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5
Q

who may impeach?

IMPEACHMENT

A

Any party may impeach
(Contrary to traditional rule = a party could not impeach his own witness)

RULE 607

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6
Q

methods

IMPEACHMENT

A
  1. Cross-examination

2. Extrinsic evidence

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7
Q

cross-examination

IMPEACHMENT

A

= by eliciting facts from the witness that discredit his own testimony

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8
Q

extrinsic evidence

IMPEACHMENT

A

= by putting witness on the stand who will introduce facts discrediting his testimony

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9
Q

6 impeachment devices

IMPEACHMENT

A
  1. Prior inconsistent statements
  2. Bias interest of motive to misrepresent
  3. Sensory deficiencies
  4. Bad reputation character for truthfulness
  5. Criminal convictions
  6. Bad uncharged acts
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10
Q

procedural questions

IMPEACHMENT

A
  1. Can the impeaching fact be proven with extrinsic evidence
    (Or do you just have to accept the witness’ answer)
  2. Assuming extrinsic evidence is permissible, must i first confront the witness with the impeaching fact
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11
Q

proof

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

Can be proved by

  1. Cross-examination
  2. Extrinsic evidence
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12
Q

foundational requirements

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A
  1. the witness is, at some point, given an opportunity to explain or deny the allegedly inconsistent statement; and
  2. the adverse party is, at some point, given an opportunity to examine the witness about the statement
    UNLESS opp to examine witness not required either
    a. where “justice so requires”
    b. when the prior inconsistent statement qualifies as an opposing party’s statement = RULE 613(b)
    c. when inconsistent statements are made by a hearsay declarant = RULE 806
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13
Q

proof - extrinsic evidence

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

Requirements for extrinsic evidence

  1. Proper foundation
  2. Statement must be relevant to some issue in the case (= cannot be collateral matter)
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14
Q

evidentiary effect

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

admissible
1. generally, only to
impeach witness
2. as substantive proof of facts stated ONLY where statement was made under oath at a prior trial, hearing, or other proceeding, or in a deposition ( = admissible nonhearsay)

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15
Q

proof

IMPEACHMENT BY BIAS, INTEREST, MOTIVE TO MISREPRESENT

A

can be proved by

  1. cross examination
  2. extrinsic evidence ONLY with proper foundation
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16
Q

foundational requirements

IMPEACHMENT BY BIAS, INTEREST, MOTIVE TO MISREPRESENT

A
  1. before a witness can be impeached by extrinsic evidence of bias or interest, he MUST FIRST be asked about the facts that show bias or interest on cross-examination
  2. If the witness on cross-examination admits the facts claimed to show bias or interest = within the trial judge’s discretion to decide whether extrinsic evidence may be introduced as further proof of bias or interest
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17
Q

justification for bias

IMPEACHMENT BY BIAS, INTEREST, MOTIVE TO MISREPRESENT

A

rule = no evidence may be admitted to show that he was justified in his bias

b/c not relevant to whether bias makes him less credible

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18
Q

use

IMPEACHMENT BY BAD REPUTATION CHARACTER FOR TRUTHFULNESS

A

Way to show witness has bad character for truthfulness

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19
Q

bad character for truthfulness - definition

IMPEACHMENT BY BAD REPUTATION CHARACTER FOR TRUTHFULNESS

A

= witness has a propensity to lie

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20
Q

means of proof

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

Can be proved by
1. Fact that the witness has been convicted of a crime may usually be proved by either
a. Eliciting an admission on direct examination
b. Eliciting an admission on cross-examination
c. By the record of conviction
Does not require foundation

RULE 609

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21
Q

foundational requirements

IMPEACHMENT BY CRIMINAL CONVICTIONS

A
  1. actual conviction of crime

2. must not be too remote

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22
Q

requirement - actual conviction of crime

IMPEACHMENT BY CRIMINAL CONVICTIONS

A
  • Fact that witness has been arrested or indicted may not be elicited here
  • Constitutionally defective conviction invalid for all purposes
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23
Q

requirement - must not be too remote

IMPEACHMENT BY CRIMINAL CONVICTIONS

A
  • Conviction is usually too remote if more than 10 years have elapsed since the date of conviction or the date of release from sentence, whichever is later
  • Such conviction can be admitted in extraordinary circumstance if
    1. Trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect AND
    2. The adverse party is given notice that the conviction is to be used as impeachment

RULE 609(b)

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24
Q

types of crimes

IMPEACHMENT BY CRIMINAL CONVICTIONS

A
  1. crime involving dishonesty or false statement

2. any felony

25
Q

crime involving dishonesty or false statement

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

Interpreted narrowly to encompass only offense in the nature of crimen falsi

  1. Perjury
  2. False statement
  3. Criminal fraud
  4. Embezzlement
  5. False pretense
26
Q

any felony

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

If not involving dishonesty or false statement, judge may exercise discretion to exclude it

27
Q

eliciting an admission on cross-examination

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

Questions must be asked in good faith

= with a reasonable belief as to the existence of the conviction

28
Q

any felony - accused in a criminal case

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

standard = admitted in criminal case to impeach accused only if the government shows its probative value outweighs prejudicial effect

(standard favors exclusion)

29
Q

any felony - witness other than accused in criminal case

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

standard = admitted in criminal case to impeach witness other than accused unless probative value is substantially outweighed by danger of unfair prejudice

(standard favors admission)

30
Q

juvenile adjudication

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

Discretion to admit if

  1. Evidence would be admissible to attack credibility of an adult
  2. AND IF if the evidence is necessary to a determination of the accused’s guilt or innocence
31
Q

effect of pardon

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

Conviction may still be shown unless

  1. Pardon was based on innocence OR
  2. The person pardoned has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year

RULE 609(c)

32
Q

pending appeal

IMPEACHMENT BY CRIMINAL CONVICTIONS

A

= Does not affect admissibility

RULE 609(e)

33
Q

rule

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

Any witness can be impeached by showing on some prior occasion they made an an inconsistent statement either orally or in writing

34
Q

admissibility as substantive evidence - rule

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A
  • Cannot be presented as substantive evidence
    b/c do come in for truth of matter asserted
  • If they do come in for truth of matter asserted = probably hearsay
35
Q

admissibility as substantive evidence - exception

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

If given orally, under oath, as part of prior trial or proceeding
= can come in as substantive statement

36
Q

timing of confronting the witness - rule

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

Timing of confronting the witness = FLEXIBLE

  • Witness has to be given opp at some point
  • But doesn’t necessarily have to be before impeaching with extrinsic evidence
37
Q

timing of confronting the witness - exception

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

A

Witness is the opposing party

= don’t have to give witness opp to explain inconsistent statement

38
Q

general rule

IMPEACHMENT BY SPECIFIC INSTANCES OF MISCONDUCT/BAD ACTS

A

Witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act that may affect his character and show him to be unworthy of belief in discretion of the court even though the witness was never convicted

39
Q

requirements

IMPEACHMENT BY SPECIFIC INSTANCES OF MISCONDUCT/BAD ACTS

A
  1. the act of misconduct is probative of truthfulness (AKA is act of deceit or lying)
  2. Cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act”
  3. Can be elicited only on cross-examination (extrinsic evidence not permitted to refute answer)
  4. Cannot reference consequences of bad act

RULE 608

40
Q

methods

IMPEACHMENT BY EVIDENCE OF UNTRUTHFULNESS

A
  1. by proof of reputation

2. by opinion evidence

41
Q

proof of reputation

IMPEACHMENT BY EVIDENCE OF UNTRUTHFULNESS

A

= Permissible

  • usual method of impeachment = to ask other witnesses about her general reputation for truth and veracity in the community in which she lives
  • modern view = to allow evidence of reputation in business circles as well as in the community in which the witness resides
42
Q

opinion evidence

IMPEACHMENT BY EVIDENCE OF UNTRUTHFULNESS

A

= Permissible for an impeaching witness to

  1. state her personal opinions
  2. based upon acquaintance
  3. as to the truthfulness of the witness sought to be impeached

RULE 608(a)

43
Q

rule

IMPEACHMENT BY SENSORY DEFICIENCIES

A

A witness may be impeached by showing

a. that he had no knowledge of the facts to which he testified, or
b. that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts

44
Q

lack of knowledge - expert witnesses

IMPEACHMENT BY SENSORY DEFICIENCIES

A

may be attacked by cross-examining him as to

  1. his general knowledge of the field in which he is claiming to be an expert, and
  2. his particular knowledge of the facts upon which his opinion is based
45
Q

lack of knowledge - opinion witnesses

IMPEACHMENT BY SENSORY DEFICIENCIES

A
  • may be attacked by showing lack of knowledge

Example = a witness who gives opinion evidence on the value of land may be cross-examined regarding her knowledge of land values and may be asked about sales of other land

46
Q

lack of knowledge - character witnesses

IMPEACHMENT BY SENSORY DEFICIENCIES

A
  • may be cross-examined regarding the basis of his statement that the defendant’s character is good
    = testimony of the character witness may be discredited by asking him about specific criminal or immoral acts committed by the defendant, on the theory that if the witness has no knowledge of these acts, he does not really know the defendant’s character
    —- Rep = have you heard Q
    —- Opinion = do you know Q

RULE 405(a)

47
Q

defects of capacity - types

IMPEACHMENT BY SENSORY DEFICIENCIES

A
  1. Perceptive disabilities
  2. Lack of memory
  3. Mental disorders
48
Q

lack of memory

IMPEACHMENT BY SENSORY DEFICIENCIES

A

= showing that he has a poor memory of the events about which he testifies

49
Q

methods

IMPEACHMENT BY SENSORY DEFICIENCIES

A

Can be made either

  1. On cross-examination or
  2. By use of extrinsic evidence
50
Q

extrinsic evidence permitted

IMPEACHMENT BY CONTRADICTORY FACTS

A

Extrinsic evidence of contradictory facts to impeach is permitted

a. where the witness’s testimony on a particular fact is a material issue in the case,
b. where the testimony on a particular fact is significant on the issue of credibility, or
c. where the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence

51
Q

extrinsic evidence not permitted

IMPEACHMENT BY CONTRADICTORY FACTS

A

Extrinsic evidence of contradictory facts to impeach is NOT permitted
to prove contradictory facts that are collateral

52
Q

collateral

IMPEACHMENT

A

= not relevant to any material issue in the case OR

= insignificant on the issue of credibility

53
Q

rule

REHABILITATION

A
  1. Witness who has been impeached may be rehabilitated
    a. On redirect examination with explanation OR
    b. By extrinsic evidence
  2. When the witness’s general character for truthfulness and veracity has been attacked, the party for whom the impeached witness has testified may
    - call other witnesses
    a. to testify to the good reputation for truthfulness of the impeached witness OR
    b. to give their opinion as to the truthfulness of the impeached witness
54
Q

rule

REHABILITATION BY PRIOR CONSISTENT STATEMENTS

A

= generally not permitted

Party may not ordinarily rehabilitate a witness by showing a prior consistent statement
b/c it seldom enhances credibility

55
Q

exceptions

REHABILITATION BY PRIOR CONSISTENT STATEMENTS

A
  1. To rebut charge of fabrication based on improper motive

2. When witness impeached on other non-character ground

56
Q

to rebut charge of fabrication based on improper motive

REHABILITATION BY PRIOR CONSISTENT STATEMENTS

A
  • where opposing counsel impeached credibility of witness
  • by making an express or an implied charge that the witness is lying or exaggerating
  • b/c of some improper motive

= counsel may introduce into evidence

  1. Prior consistent statement
  2. Made by the witness
  3. Before the onset of the alleged motive
57
Q

when witness impeached on other non-character ground

REHABILITATION BY PRIOR CONSISTENT STATEMENTS

A

Where opposing counsel has impeached credibility of a witness
- On some non-character ground
- Other than a charge of recent motive to lie or exaggerate
= Counsel may introduce into evidence
- Prior consistent statement
- Made by the witness
IF under the circumstances
- It has a special tendency to rehabilitate the witness’s credibility

NOTE = Cannot be used to rehabilitate witness whose general character for truthfulness has been impeached

58
Q

use

REHABILITATION BY PRIOR CONSISTENT STATEMENTS

A

Prior consistent statement that is admissible to rehabilitate a witness’s credibility is also admissible as substantive evidence of the truth of its content

RULE 801(d)(1)(B)

Evidence (10 decks)

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