Impeachment

Question 1

Impeachment
Approach & Overview

Answer 1

Impeachment casts an adverse reflection on the veracity of W’s testimony
* Any party may impeach any W

Methods of Impeachment
1. Contradiction
2. Prior inconsistent statement (PIS)
3. Bias or interest
4. Sensory deficiencies
5. Reputation and/or opinion of untruthfulness
* Admissible to impeach W’s veracity by use of extrinsic evidence
6. Prior acts of misconduct
7. Prior criminal conviction

Evidence supporting witness credibility - inadmissible unless credibility has been attacked (i.e., W has been impeached)
* Exception - W’s prior consistent statement is admissible if the statement was made before W had a motive to fabricate

Question 2

Collateral Matters & Extrinsic Evidence

Answer 2

Extrinsic evidence may not be used to impeach W on collateral matters

Extrinsic evidence = any evidence other than W’s testimony at the current proceeding
* Includes evidence of out-of-court prior inconsistent statements

Collateral matter = a fact not material to issues in the case
* Says nothing about W’s credibility; only used to contradict W
* E.g., W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress - this is collateral (i.e., not material) to the issue of what W1 saw
* Test - to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?
* If not, it is likely collateral

Note - extrinsic evidence is admissible on non-collateral matters and for non-impeachment purposes (e.g., to show bias)

Question 3

Impeachment by Contradicition or Prior Inconsistent Statement (PIS)

Answer 3

Contradiction - any evidence may be used to show W has made contradictory statements on material issues

Prior inconsistent statement - W’s prior inconsistent statements may be used to impeach W’s present testimony
* Establishing PIS - may be established through cross-exam or extrinsic evidence
* Extrinsic evidence is inadmissible if the PIS relates to a collateral matter
* Foundation requirement - W must have an opportunity to explain or deny the statement
* Not required for PIS by a hearsay declarant

Prior inconsistent statements & hearsay - if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)
* I.e., a hearsay PIS may only be considered for its bearing on W’s credibility
* If the PIS is not hearsay or it falls under a hearsay exemption / exception, it may be considered for any purpose

Question 4

Impeachment by Bias, Misconduct, or Reputation for Untruthfulness

Answer 4

Evidence of W’s bias, prior misconduct, or reputation for untruthfulness may be used to impeach W

Impeachment by establishing bias - may be established through cross-exam or extrinsic evidence
* Foundation requirement - W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny

Impeachment by prior instances of misconduct - W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e. lying or deceit)
* Arrests not equal to misconduct - must be an act of lying
* No extrinsic evidence permitted - W may only be asked about prior misconduct; questioning attorney must accept W’s answer

Impeachment based on opinion or reputation for untruthfulness
* W may be impeached by testimony describing his reputation for untruthfulness in the community

Question 5

Impeachment by Prior Conviction

Answer 5

Admissibility of impeachment by type of prior conviciton:
Prior conviction:
Felonies not involving dishonesty / false statements:
* If W is the D - admissibile if govt. shows probative value outweighs prejudicial effect
* If W is non-D - admissible but court can exclude under 403 balancing
Misdemeanors: inadmissible unless it involves dishonesty / false statements

Prior conviction involving act of dishonesty
Always admissible - court has no discretion to exclude under 403 (rare exception to 403)
* Includes felonies and misdemeanors
Acts of dishonesty - prior conviction required proof or admission of an act of dishonesty or false statement (e.g., perjury, fraud)

Convictions more than 10 years old (Felonies and Misdemeanors)
Not admissible, unless:
* Probative value substantially outweighs unfair prejudice (inverse 403) and adverse party is given notice
Determining 10-year date - more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later (need specific facts)