Impeachment Flashcards
(13 cards)
Impeachment (Generally & Bolstering)
Impeachment = Discrediting a witness
* Any party may impeach any witness
* Bolstering witness’s testimony generally prohibited (strengthening witnesses credability before it has been attacked)
Exceptions to Rule Against Bolstering:
* In certain cases, a party may offer evidence that the witness made a timely complaint (in a sexual assault case, for example) or a prior statement of identification (usually, identifying the defendant as the perpetrator of the charged crime) even if this tends to bolster their in-court testimony.
* The prior identification may also serve as substantive evidence that the identification was correct (see the Hearsay module).
2 Forms of Impeachment
- Cross-Examination
- Extrinsic Evidence (other witnesses or documents)
- Certain grounds for impeachment require that a foundation be laid during cross-examination before extrinsic evidence can be introduced.
- Other grounds allow impeachment to be accomplished only by cross-examination
Impeachment Methods (7 Types)*
Facts specific to Case:
1. Prior inconsistent statements
2. Bias
3. Sensory deficiencies
4. Contradiction
General Bad Character for Untruthfulness:
5. Opinion or reputation evidence of untruthfulness
6. Prior Convictions
7. Prior bad acts involving untruthfulness
Prior Inconsistent Statements (Impeachment)*
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case
* Generally admissible for impeachment purposes only
* But admissible as substantive evidence when made under oath at prior proceeding
Extrinsic Evidence Foundation Requirements:
* Give witness opportunity to explain or deny
* Give adverse party opportunity to examine witness about statement
When Foundation Requirements Don’t Apply:
* Opposing party’s statement (used against them)
* Hearsay declarant is being impeached
* Justice Requires
Bias or Interest (Impeachment)
Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie.
Foundation for Extrinsic Evidence:
* Because impeachment with bias is not specifically addressed by the Federal Rules, much is left to the court’s discretion.
* The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination.
* Note that the court has discretion to permit extrinsic evidence even if the witness admits the bias.
Sensory Deficiencies (Impeachment)
Witnesses faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts.
* A witness may also be impeached by showing that they had no knowledge of the facts to which they testified.
* Admissible on cross-examination or by extrinsic evidence
* No foundation requirement
Contradictory Facts (Impeachment)
Although not specifically addressed in the Federal Rules, impeachment by contradiction is a recognized method of impeachment.
* cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination.
* If the witness admits the mistake or lie, they have been impeached by contradiction.
* If the witness sticks to their story, extrinsic evidence is permitted unless the contradictory fact is collateral (meaning, it has no significant relevance to the case or to the witness’s credibility).
Opinion or Reputation Evidence of Untruthfulness (Impeachment)
Testimony from character witness admissible to show impeached witness has poor character for truthfulness
* accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.
* Can’t refer to specific instances of conduct (only reputation/opionion)
Conviction of Crime (Impeachment)*
A witness may be impeached by proof of a conviction (an arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.
* No foundation requirement for extrinsic evidence
* Constitutionally defective conviction cannot be used
Types of Crimes:
* Any crimes involving dishonesty or false statement (court has no discretion to exlude)
* Court has discretion to exclude felony not involving dishonesty or false statement
* Criminal Defendant: Court excludes conviction unless probative value outweighs prejudicial effect (more difficult to get evidence in)
* Any other Witness: Court Excludes conviction if probative value substantially outweighed by prejudicial effect (Standard 403 balancing test)
Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible.
* The court may admit an older conviction if: (1) its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion); and (2) the proponent gives the adverse party reasonable written notice of their intent to use it.
Effect of Pardon: Conviction cannot be used to impeach if:
* Pardon based on rehabilitation and no subsequent felony conviction
* Pardon based on innocence
Juvenile convictions = Generally not admissible
* In a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence.
Bad Acts Involving Untruthfulness (impeachment)
Subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness (that is, an act of deceit or lying). The cross-examiner must have a good-faith basis to believe the witness committed the misconduct.
* Interrogation of witness permitted
* No Extrinsic Evidence
* Cannot refer to any consequences the witness may have suffered as a result of their bad act. The rationale is that the consequence (such as an arrest, termination, etc.) is, in essence, a third person’s opinion that the witness committed the act, and thus a form of extrinsic evidence.
Collateral Matters (Impeachment)
Cannot prove collateral (unimportant) matter by extrinsic evidence or prior inconsistent statement
Impeachment of Hearsay Declarant
- Hearsay declarant may be impeached to same extent as in-court witness
- Need not be given opportunity to explain or deny prior inconsistent statement
- The party against whom the out-of-court statement was offered may call the hearsay declarant as a witness and cross-examine them about the statement.
- For purposes of this rule, a “hearsay declarant” means a person whose out-of-court statement has been admitted into evidence: (1) under an exception to the hearsay rule, or (2) as a vicarious statement of an opposing party (see 8.2.2.c., infra).
Rehabilitation Methods
Explain on redirect
Good character for truthfulness (reputation/opinion tesimony)
Prior consistent statement
* When witness attacked with charge of lying or exaggerating because of some motive, and statement predates motive
* When witness impeached on other non-character ground (such as inconsistency or a charge of faulty memory)
* A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents (see the Hearsay module).
