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A. Aaall classes > Impeachment > Flashcards

Impeachment Flashcards

1
Q

What is substantive evidence

A

Evidence offered to support a fact in issue**, as to the **necessary elements of the case (vs. evidence that goes to procedural or collateral issues).

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2
Q

Ex: hearsay v. nonhearsay

In a defamation case, P offers a statement by D that “P is a thief”.

What type of statement is this?

A

Non-hearsay

P is not offering the statement to prove that he is, in fact, a thief.

Rather, as substantive evidence of slander. As such, the statement is not being offered to prove the TOMA (that plaintiff is a thief), and the statement is therefore non-hearsay.

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3
Q

Ex: hearsay v. nonhearsay

D offers evidence of a statement made by P “D, I am going to attack you!!” as a claim for self-defense.

What type of statement is this? hearsay v. nonhearsay?

A

Non-hearsay

D is not offering the statement to prove the truth of whatever was said to D*, but rather to prove that D believed he would be attacked, and therefore was reasonable in defending himself against the attack –> which is substantive evidence as to why D acted the way he did.

* if it was being offered to prove the TOMA it would be to prove whether it was true that P said that to D

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4
Q

What is impeachment?

A

Evidence used to discredit a witness’s testimony

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5
Q

What is the point of offering evidence to impeach a witness?

A

To show that the witness CANNOT be trusted

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6
Q

Evidence offered to impeach a witness is NOT offered as what type of evidence?

A

it is NOT offered as substantive evidence

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7
Q

What is bolstering?

A

An attempt to strengthen the testimony of a witness

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8
Q

When can a witness’s testimony be strengthened?

A

When the witness has been impeached

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9
Q

When the witness has been impeached their reputation can be ____________________ ?

A

Rehabilitated

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10
Q

Is bolstering permissible?

A

Generally NO

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11
Q

List (2)

When IS bolstering allowed

A

To offer evidence: (1) That witness made a timely complaint (i.e. sexual assault case) (2) of a Prior Statement of Identification (i.e. identify D as perpetrator of crime)

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12
Q

Which party can impeach a witness?

A

Any party!

(even the party that called the witness to the stand)

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13
Q

Old CL

When a party impeaches their own witness AVOID these wrong answer choices

A

CL says witness cannot be impeached unless:

  1. W is an adverse party or identifies with an adverse party
  2. W is hostile/uncooperative
  3. W is one whom party is required by law to call
  4. W gives surprise testimony that is harmful to party calling them
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14
Q

List (2)

Through what methods can witness be impeached

hint: think of when the witness is on the stand and being asked Q

A

W can be impeached by:

  1. Cross-examination
  2. Extrinsic Evidence - sometimes (C-CRISP scenarios)
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15
Q

“CcRISP”

What impeachment methods allow the use of extrinsic evidence?

When can you C-CRISP (aka burn aka impeach) the W?

A

These impeachment methods allow the use of EE

  1. Conviction of crimes
  2. Contradictory facts
  3. Reputation + opinion for untruthfulness
  4. Bias/Interest
  5. Sensory deficiencies
  6. Prior inconsistent statement
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16
Q

If extrinsic evidence is to be used in one of the five CRISP scenarios, then that evidence cannot be:

A

COLLATERAL

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17
Q

How can cross-examination be used to impeach a witness?

A

Elicit facts from W that will discredit the W’s testimony

**Remember** Same party can impeach its own witness in which case it will be through direct examination

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18
Q

List (2)

How can extrinsic evidence be used to impeach a witness?

Hint: who/what can be used?

A
  1. Calling other witnesses or
  2. Introducing certain documents that prove impeaching facts
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19
Q

“FIBS” , “CrOB” list (7)

What are the impeachment methods

A

Fact specific to current case: (“FIBS”)

  1. Contradictory Facts
  2. Prior inconsistent statement *
  3. Bias or Interest to misrepresent*
  4. Sensory Deficiencies

General bad character for truthfulness (“CrOB”)

  1. Conviction of Crime*
  2. Opinion or Reputation for Untruthfulness*
  3. Bad Acts Involving truthfulness or untruthfulness*

* most commonly tested

CIBS - like sibs or FIBS - like lies, which ever one you remember better

CrOB - like Krob, like Rob Jr. Kardashian who posted revenge corn of Blac Chyna, so bad act + untruthful

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20
Q

*foundation*

How is a witness impeached by prior inconsistent statements

and what methods (ie what type of examination) - hint 2 methods

A

Through use of extrinsic evidence or cross-examination to show that W has made prior statements that are inconsistent with the present testimony

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21
Q

When using _______ to impeach a witness through prior inconsistent statements, _________ needs to be laid

A

extrinsic evidence; proper foundation

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22
Q

When using extrinsic evidence to impeach a witness through prior inconsistent statements, need:

A
  1. proper foundation -and-
  2. prior statement relevant to some issue in current case
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23
Q

*hearsay exception*

Are prior inconsistent statements hearsay?

A

Yes unless

  1. made under oath which case become nonhearsay -OR-
  2. used to impeach - still hearsay but permissible for impeachment purposes
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24
Q

When a PIS is made under oath this means that it was made under?

and what does this make the PIS?

A

pains and penalties of perjury at a prior hearing, trial, depo, or other proceeding making it admissible nonhearsay

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25
Q

At deposition: Witness says “Car ran a red light”

On the stand: Witness says “I dont remember if car ran red light”

Prior inconsistent statement?

A

(generally) NO

(unless ct thinks witness is faking memory loss)

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26
Q

If a fact is OMITTED in a prior statement and then MENTIONED in the current testimony, is this an instance of a prior inconsistent statement?

A

It’s a PIS ONLY IF:

  1. it would have been normal/expected to mention that fact in the prior statement and
  2. the witness believed that fact to be true
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27
Q

At deposition: Witness says “I dont remember if car ran red light”

On the stand: Witness says “Car ran a red light”

Prior inconsistent statement?

A

(generally) YES!

PIS ONLY IF:

  1. it would have been normal/expected to mention that fact in the prior statement and
  2. the witness believed that fact to be tru
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28
Q

When can prior inconsistent statements be used?

A

because PIS are hearsay… can only be used

  1. if PIS was made under oath in which case it’s nonhearsay and therefore admissible -OR-
  2. IMPEACH a witness
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29
Q

If prior inconsistent statements are offered under oath then…?

A

they become nonhearsay and are admissible as substantive evidence

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30
Q

List (2)

How is foundation laid to use extrinsic evidence to prove PIS?

A

At some point before or after introducing extrinsic evidence:

  1. Witness is given the opportunity to explain or deny statement - witness = explain or deny
  2. Adverse party given the opportunity to examine the witness about the statement - adverse = examine
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31
Q

list 2

To prove a PIS by extrinsic evidence

the W?

the evidence?

A
  1. The W must be given opportunity to explain or deny
  2. The evidence must be relevant to some issue in the case
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32
Q
A
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33
Q

*exception* List (3)

When is foundation for extrinsic evidence for PIS NOT needed?

A
  1. If PIS is the opposing party’s statement
  2. PIS is that of a hearsay declarant, foundation not need to impeach him
  3. When justice so requires (i.e. witness has left stand and unavailable when inconsistent statement was discovered
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34
Q

How is a witness impeached by bias/interest

A

Through evidence that witness is biased or has an interest in outcome of case (and tends to show W has motive to lie)

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35
Q

Is foundation needed for extrinsic evidence to impeach a witness on bias or interest?

A

FRE are silent - court’s discretion

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36
Q

How is foundation for impeaching a witness on bias or interest laid?

(majority rule)

A

Witness must first be asked about facts** that **show bias or interest during cross-examination

37
Q

💡 TIP, “CRISP”

Can the court admit extrinsic evidence if the witness admits or denies to bias or interest

A

YES

(W says, yes I do have these reasons to slant testimony)

💡 TIP: can use bias/interest to introduce evidence that may otherwise be inadmissible (i.e. arrests, liability insurance)

38
Q

“CRISP”

How is a witness impeached by

sensory deficiencies?

A

Show that witness’s perception or recollection of events was impaired through:

  1. Use of extrinsic evidence -OR-
  2. Questions during cross-examination to

(drunk, drugged, bad eyesight, bad hearing, bad memory etc)

39
Q

Is foundation needed for extrinsic evidence ​to impeach a witness on sensory deficiencies?

A

No

40
Q

How is a witness impeached by contradiction?

A

Cross-examiner can make witness admit they lied or were mistaken about some facts they testified to during direct examination.

ADMIT → CONTRADICTION → IMPEACHMENT

41
Q

“CRISP”

If the witness does NOT contradict themselves, can extrinsic evidence be used to impeach them?

A

YES,

unless the contradictory fact is collateral (aka no significant relevance to case or witness’s credibility)

42
Q

Can specific acts of conduct be used to explain

reputation or opinion evidence for untruthfulness?

A

NO

43
Q

Reputation or opinion testimony; “CRISP”

Can extrinsic evidence be used to prove

reputation or opinion for untruthfulness?

A

YES

44
Q

Bad acts for un/truthfulness

If the W denies the specific bad act for un/truthfulness, can extrinsic evidence be brought in?

A

NO!

45
Q

What types of crimes are permissible to admit as evidence to impeach a witness on the basis of conviction?

A
  1. Crimes involving dishonesty or false statements (i.e.lying that the light was red)
  2. Felonies which DON’T involve dishonesty/false statements
    1. and will likely need to show probative > prejudicial
46
Q

What crimes are considered to involve dishonesty or false statements?

hint: aka crimen falsi

A

Crimes which involve uttering or writing of false words

Examples: perjury, false statements, criminal fraud, embezzlement, false pretenses

47
Q

Felonies not involving crime or dishonesty _________ admissible

A

are NOT automatically admissible

48
Q

What type of test is used to admit felonies which do not include dishonesty or false statement admitted as evidence for conviction of crime to impeach a witness?

A

by using a balancing test

49
Q

For witness who is a defendant what is the balancing test to impeach them based on felonies which do not involve dishonesty/false statement

A

prosecution has to show

probative > prejudicial

if prosection fails to show then inadmissible

50
Q

Hint: this is the standard 403 balancing test

For a witness who is a someone other than a defendant what is the balancing test to impeach them based on felonies which do not involve dishonesty/false statement

A

court exclude if:

probative < prejudicial

probative substantially outweighed by prejudicial, then excluded

51
Q

Are past convictions (crimes of felonies) involving or not involving crime/dishonesty admissible?

A

If more than 10 years have passed, (generally) NO

10 years = since date of conviction or release (which ever is later)

conviction is considered too remote

52
Q

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:

convicted 8 years ago for misdemeanor of tax fraud?

A

YES.

Tax fraud is a crime of dishonesty

53
Q

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:

released 9 yrs ago from prison for misdemeanor of marijuana possession?

A

NO.

not a crime of dishonesty and not a felony

54
Q

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:

convicted 2 yrs ago for misdemeanor of shoplitfing

A

NO.

not a crime of dishonesty and not a felony

55
Q

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:

convicted 5 yrs ago for felony assault

A

Felony assault = Felony

prosecution needs to show that

probative > prejudicial

56
Q

List (2)

Under what conditions may the court admit a prior conviction older than 10 yrs?

A

Under extraordinary circumstances where:

  1. probative >>> prejudicial (reverse 403)
  2. Proponent gives other party reasonable and written notice of intent to use it
57
Q

Is foundation needed for extrinsic evidence to impeach a witness on conviction of crimes?

what are prior convictions shown through?

A

NO

prior conviction usually shown through direct or cross-examination (+ other methods)

58
Q

Why might a party introduce evidence of its own prior conviction?

A

really just to get the upper hand of having the jury hear it from you rather than through cross-examination

59
Q

If a party brings up their own prior conviction what can/can’t they do in regards to its admission?

A

Claim on appeal that it was erroneously admitted

60
Q

Is a prior conviction admissible if it was pardoned?

A

NO. Cannot be used

Need pardon +

  1. pardon based on rehabilitation AND witness has not been convicted of subsequent felonies (bc if subsequent felony then you weren’t rehabbed)
  2. pardon based on innocence (irrespective of subsequent convictions )
61
Q

Are juvenile convictions admissible?

A

(generally) NO

unless…

  1. attacking credibility of adult, and
  2. evidence necessary to determine accussed’s guilt or innocence
62
Q

Is a constitutionally defective conviction admissible?

A

NOOOO!!!

invalid for ALL purposes inc. impeachment

63
Q

How is a witness impeached by

bad acts involving untruthfulness

A

Through cross-examination about an act of misconduct that is probative of truthfulness (act of deceit or lying)

Subj to discretion of judge

64
Q

If the cross examiner wants to impeach a witness based on bad acts involving untruthfulness, what basis is needed?

A

Good-faith basis that the witness committed the misconduct

65
Q

*foundation*

Is foundation needed for extrinsic evidence to impeach a witness on bad acts involving untruthfulness?

A

NOOO!!!!!

Extrinsic evidence NOT allowed

66
Q

Through what method can a witness be impeached regarding bad acts involving untruthfulness?

A

only through cross-examination (extrinsic evidence NOT allowed)

67
Q

When impeaching a witness based on bad acts involving untruthfulness what is the cross-examiner not allowed to refer to

bonus point: explain rationale

A

consequences the W faced bc of those bad acts (i.e. cant say “isn’t it true that you were arrested bc of embezzelement”)*

rationale: consequence is 3rd persons opinion that W committed act aka extrinisic evidence

*can say “isnt it true you embezzeled money from your employer?” but cant ask where you arrested

68
Q

Remember bad acts asking only about the ACT not the consequences

A

–

69
Q

How is impeachment on collateral matters treated?

A

cannot provide extrinsic evidence or use PIS because it’s a collateral matter so prosecution/defense won’t spend time dealing with the collateral info

70
Q

How does impeachment of a hearsay declarant work?

A

Hearsay declarant’s credibility can be impeached through evidence that would be admissible as if the HD had testified as a W.

if HD credibility attacked, can be supported

71
Q

By what impeachment methods can the HD be impeached?

A

ALL!

72
Q

What makes a hearsay declarant different from a witness

A

HD does not need to be given chance to explain or deny a PIS

rationale: the HD previously offered the statement as true and had the opportunity at that time to explain their statement…thus, when impeaching them on credibility/truthfulness the PIS is used to attack the HD’s truthfulness by offering the PIS to show that the HD knowingly offered a false or uncertain statement in the past

73
Q

Who can call the hearsay declarant to cross-examine?

A

The party against whom the HD’s statement was offered

74
Q

delete if needed; list (2)

Who is a hearsay declarant

A

HD is person who’s out of court statement has been admitted

  1. under hearsay exception or
  2. vicarious statement of opposing party
75
Q

List (3)

How can a witness be rehabilitated?

A
  1. Explanation on redirect
  2. Good character for truthfulness
  3. Prior consistent statements
76
Q

How is a witness rehabilitated on explanation on redirect?

A

W explains or clarifies facts that were brought out during cross

77
Q

How is a witness rehabilitated on good character for truthfulness?

A

When W1 attacked for bad character, other W’s can testify to W1 good character through reputation or opinion testimony

*** no specific acts ***

78
Q

Through what type of testimony can a W be rehabilitated using good character for truthfulness?

reputation, opinion, specific acts?

A

through reputation or opinion testimony ONLY

NO specific acts

79
Q

Rehabilitation should rehab same facts as attack

i.e. W attacked for bad eyesight. cannot rehab for good character for truthfulness

A

–

80
Q

list (2)

How is a witness rehabilitated using prior consistent statements?

A
  1. If W is attacked by explict or implicit motive to lie, PCS made before alleged onset of motive can be used
  2. W impeached on other grounds (except general attack on truthfulnes), can use PCS if it has tendency to rehab witness
81
Q

A prior consistent statement admissible to rehab witness is also admissible as what type of evidence?

A

substantive evidence!

82
Q

Are prior inconsistent statements admissible as substantive evidence for their truth?

A

NO comes into only to impeach unless

PIS was given under oath at a legal proceeding → then also comes in as substantive evidence

83
Q

Which impeachment methods require foundation to be laid?

A
  1. Prior inconsistent statements when using extrinsic evidence
  2. Bias/interest - FRE silent; up to courts which have a majority rule (ask about bias/interest during cross before impeaching)
84
Q

List (2); Erou gtrw

Specific acts are NOT allowed for:

  • Even Really Old Uncles*
  • Get* Crazy andToo Rowdy on Wednesdays
A
  1. to explain reputation or opinion evidence for untruthfulness
  2. using good character for truthfulness to rehab a witness
85
Q

Extrinsic evidence is NOT allowed for:

A
  1. impeaching a witness re: bad acts of D involving D’s untruthfulness
  2. collateral matters
86
Q

Although extrinsic evidence is usually NOT allowed of bad acts of D involving D’s untruthfulness, what is the one scenario in which can be used

A

Only if a witness is impeached with a prior conviction (even where the act did not result in a conviction)

87
Q

Who is a hearsay declarant

A

A declarant, generally speaking, is anyone who composes and sing a statement or declaration alleging that the information he has given therein is true.

88
Q

Remember: no foundation required to impeach PIS of a HD

rationale?

A

since the first statement was admitted improperly as hearsay, it is not necessary to establish a foundation to impeach that HD

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