Impeachment: In General, Prior Inconsistent Statements, Bias or Interest

Question 1

What is “impeachment”?

Answer 1

“impeachment” means casting adverse reflection on veracity of a witness

Question 2

Who may impeach?

Answer 2

Under Federal rules, a witness may be impeached:
- by ANY party, INCLUDING the party calling him

EXAM TIP –> watch out for false answers that limit impeachment to reflect more traditional rules

Question 3

What is the rule re: bolstering one’s own witness?

What is the CA distinction?

Answer 3

In general –> one may not bolster one’s own witness UNTIL he has been impeached
FOR EXAMPLE –> showing a prior consistent statement

HOWEVER –> in some cases, a party may prove the witness made a TIMELY COMPLAINT or PRIOR IDENTIFICATION.
NOTE –> the prior ID may also count as substantive evidence that the ID was correct

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CA distinction:

1. Civil cases –> SAME as above
2. criminal cases –> Prop 8 allows both the prosecutor and defendant to bolster a witness’s credibility before it has been attacked

Question 4

In general, what are the two major categories of methods that can be used to impeach?

Answer 4

A witness may be impeached EITHER by:

1. cross-examination (by eliciting facts from witness that discredit his own testimony); OR
2. by extrinsic evidence (by calling other witnesses or introducing docs that prove the impeachment facts)

NOTE –>

1. certain grounds for impeachment may be proved by extrinsic evidence without a foundation in cross
   (i) certain prior convictions
   (ii) sensory deficiencies
   (iii) contradictory facts (if not a collateral matter)
   (iv) opinion/reputation for truthfulness (ONLY by calling other witness)
2. certain grounds for impeachment require a foundation to be laid in cross prior to admitting extrinsic evidence
   (i) prior inconsistent statements
   (ii) bias or interest
3. certain grounds for impeachment may be accomplished only by cross, and not by extrinsic evidence
   (i) certain bad acts

• These rules apply to one’s own witnesses on direct or re-direct

Question 5

What is the rule w/ regards to impeachment by “prior inconsistent statements”?

Answer 5

A party may show that witness has previously made a statement INCONSISTENT with this testimony.

HOW –>

1. cross-examination
2. extrinsic evidence (WITH PROPER FOUNDATION & only if relevant)

SEE –> rules for proper foundation for impeachment by prior inconsistent statement w/ extrinsic evidence

Question 6

What is the foundation requirement for using EXTRINSIC evidence for impeachment by prior inconsistent statement?

foundation requirements - (2)

exceptions - (3)

Answer 6

GENERAL RULES –>

1. WITNESS must AT SOME POINT be given opportunity to explain or deny statement; AND
2. ADVERSE must AT SOME POINT, be given opportunity to EXAMINE witness about statement

NOTE –> under FRE, opportunity to explain or deny NEED NOT come before introduction of intrinsic evidence of statement

EXCEPTIONS:
1. foundation requirement does NOT apply if prior inconsistent statement is an OPPOSING PARTY’s statement;

2. inconsistent statement by HEARSAY DECLARANT may be used to impeach despite lack of foundation
3. under FRE, foundation requirements may be dispensed with WHERE JUSTICE REQUIRES
   Example –> witness is unavailable when inconsistent statement is discovered

Question 7

What is the evidentiary effect of “prior inconsistent statements”?

What is the CA distinction?

Answer 7

General rule –> they are hearsay, admissible ONLY for impeachment purposes

Exception –> prior inconsistent statement is admissible NON-hearsay IF statement was made:

1. under oath
2. at prior proceeding

NOTE –> in this case, it is admissible as substantive evidence

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CA distinction –>
- prior inconsistent statements are admissible as NON-hearsay if offered to impeach.
- Not admissible if offered to prove truth
EFFECT –> if they are offered to impeach, then they can be substantive evidence too? And they don’t need to be made under oath at prior proceeding

Question 8

What is the rule w/ regards to impeachment by “bias or interest”?

Answer 8

Evidence that a witness is BIASED or HAS AN INTEREST in the outcome is permissible

HOW:

1. cross-examination
2. extrinsic evidence (if foundation is laid on cross)

Question 9

W/ regards to impeachment by “bias or interest” by extrinsic evidence, how must foundation be laid on cross?

Answer 9

Witness must first be asked about the FACTS that show BIAS or INTEREST on cross