Class 6: Refreshing Witnesses' Memory, Impeaching Witnesses and Using Prior Statements to Impeach - Jan. 25 Flashcards
If a witness is having trouble remembering a fact or prior statement, can the witness refresh his or her memory? (Q)
Yes. If a witness is having trouble remembering a fact or prior statement, the witness can refresh his or her memory.
(FRE 612)
Which two things must an attorney show in order to be permitted to refresh a witness’s recollection while the witness is testifying? (Q)
To refresh a witness’s recollection during testimony, the attorney must show that:
(1) the witness once knew, but now cannot recall, a fact or event and that
(2) an item (usually, but not always, a writing) will help the witness recall the fact or event.
(FRE 612)
Which four rights does an adverse party have after a witness uses a writing to refresh his memory? (Q)
If a witness uses a writing to refresh his memory while testifying, an adverse party is entitled to:
(1) have the writing produced at the hearing,
(2) inspect it,
(3) cross-examine the witness on it, and
(4) introduce into evidence those portions relating to the witness’s testimony. (FRE 612(b))
However, if the witness uses the document before testifying, the court may deny these entitlements and allow only if justice requires the party to have these options. (FRE 612(a)(2))
There is an exception for writings that fall under the Jencks Act. In a federal criminal case, the Jencks Act bars disclosure of a government witness’s reports or statements until the witness has testified on direct examination. Once the witness has testified, the defense can view the witness’s reports or statements, including any used to refresh the witness’s recollection during the direct examination.
(FRE 612(b))
At trial, an undercover officer testified that she made a number of controlled purchases of cocaine from the defendant but she could not recall the dates on which she made the purchases. The officer said that she recorded the dates in her daily notes. The officer also said that if she was allowed to see those notes, she would be able to remember.
Did the prosecutor lay the proper foundation for refreshing the officer’s recollection? (Q)
Yes. The prosecutor laid the proper foundation for refreshing the officer’s recollection. An attorney must show that:
(1) the witness once knew but cannot now recall a fact or event and
(2) the writing will help the witness recall the fact or event.
Here, the officer testified that she once knew the exact dates of the controlled purchases but cannot remember them now. She also testified that her daily notes would help her accurately recall the dates. The prosecutor can then allow the witness to review the notes. After the officer reviews the notes, she will return them to the prosecutor and testify from her newly refreshed memory. The notes themselves will be marked for identification and shown to opposing counsel but not admitted into evidence.
What is witness impeachment? (Q)
Witness impeachment is the questioning or discrediting of a witness’s veracity or reliability. A witness may be impeached by examination or by the introduction of extrinsic evidence.
What are the methods of witness impeachment? (Q)
A witness may be impeached by introducing:
(a) prior inconsistent statements,
(b) evidence of bias,
(c) prior convictions,
(d) character evidence of untruthfulness, and
(e) inability to observe, recall, or relate facts or events accurately
A witness may also be impeached by contradiction. After a witness has been impeached, the non-impeaching party may rehabilitate that witness’s credibility.
What is impeachment by prior inconsistent statements? (Q)
Impeachment by prior inconsistent statements is a method of impeachment in which evidence is introduced of statements the witness made in the past that are inconsistent with part or all of the witness’s current testimony.
(FRE 613)
Can an attorney question a witness about a prior inconsistent statement without any prior warning? (Q)
Yes. An attorney can question a witness about a prior inconsistent statement without any prior warning. However, the attorney must show or disclose the prior inconsistent statement to the adverse party’s attorney upon request.
(FRE 613(a))
Must a party introduce extrinsic evidence of a prior inconsistent statement in order to ask about the prior statement? (Q)
No. The introduction of extrinsic evidence of a prior inconsistent statement is not a prerequisite to asking about the prior statement; however, a court may require a good faith basis for asking.
(FRE 613(b))
Which three requirements must an attorney meet to introduce extrinsic evidence to show that a witness made a prior inconsistent statement? (Q)
An attorney can introduce extrinsic evidence (i.e., any evidence beyond the witness’s own testimony at trial) to show that a witness made a prior inconsistent statement if:
(1) the prior inconsistent statement relates to a non-collateral matter (i.e., facts of consequence in the trial),
(2) the witness has an opportunity to explain or deny the statement, and
(3) the adverse party has an opportunity to examine the witness about the prior inconsistent statement.
The judge can waive these requirements if justice requires.
(FRE 613(b))
In a criminal case for possession and distribution of cocaine, a defense witness testified on direct examination that she had never seen the defendant selling drugs. On cross-examination, the prosecutor asked, “Didn’t you tell the investigator that you saw the defendant selling coke on the corner daily?” The witness denied this. During rebuttal, the prosecutor called the investigator who testified, “The witness told me she saw the defendant selling coke on the corner daily.” The defense requested the following limiting instruction: “The testimony of a witness can be attacked by showing that the witness previously made statements that are different from the witness’s testimony here. The earlier statements are admissible only to discredit or impeach the credibility of the witness and not to establish the truth of these earlier statements.”
Should the judge issue the limiting instruction? (Q)
Yes. The judge should issue the limiting instruction. If a party uses a prior inconsistent statement to impeach the witness, the prior statement is usually inadmissible hearsay. A jury can use the prior inconsistent statement only to help determine the witness’s credibility but not as substantive evidence.
Here, the witness’s out-of-court statement to the investigator (i.e., the prior inconsistent statement) is inadmissible hearsay. The jury can use this prior inconsistent statement to conclude that the witness is either lying or mistaken, but it cannot use the statement as substantive evidence that the defendant actually did sell cocaine on the corner daily. The prosecutor needs to offer admissible evidence if she wishes to prove that point. Thus, the judge should issue the limiting instruction.
What is the difference between impeaching a witness’s character for truthfulness and impeaching a witness for a prior inconsistent statement? (Q)
The difference between impeaching a witness’s character for truthfulness and impeaching a witness for a prior inconsistent statement is that impeaching a witness’s character for truthfulness is a general attack on the witness’s character, while impeaching a witness for a prior inconsistent statement is impeachment of the witness’s ability to tell the truth about this matter specifically. In other words, impeaching a character for truthfulness is an attempt to characterize the witness as a liar, whereas impeaching a witness for a prior inconsistent statement is merely suggesting that with respect to a particular topic, the witness’s testimony is faulty. This distinction is important because extrinsic evidence can only be used to prove a prior inconsistent statement, not to prove the witness’s character for truthfulness. (Move?)
May a witness be impeached based on the witness’s inability to observe, recall, or relate facts or events accurately? (Q)
Yes. A witness may be impeached based on the witness’s inability to observe, recall, or relate facts or events accurately; although this is not explicitly mentioned in the FRE. The witness may be impeached by examination or extrinsic evidence.
Who may impeach a witness? (Merritt)
Any party, including the party that called the witness, may attack the witness’s credibility.
(FRE 607)
What is extrinsic evidence? (Merritt)
Extrinsic evidence is any evidence other than testimony from the witness currently on the stand.
(224)
