impeachment

Question 1

rule on bolstering testimony

Answer 1

generally CANNOT bolster testimony until credibility has been attacked

EXCEPT in certain cases may:

• offer evidence that the witness made a timely complaint (in a sexual assault case, for example)
• offer prior statement of identification (usually, identifying the defendant as the perpetrator of the charged crime)

Question 2

A witness may be impeached either by

Answer 2

1) cross-examination

2) extrinsic evidence (other witnesses or documents)

Question 3

prior inconsistent statements -methods allowed

Answer 3

methods allowed: cross-examination, extrinsic evidence

Question 4

prior inconsistent statements - admissible for:

Answer 4

generally impeachment only, admissible as substantive when made under oath at prior proceeding

Question 5

prior inconsistent statements - when statements are inconsistent

Answer 5

Most inconsistent statements are clearly contradictory

prior statement that omits a fact asserted during the current testimony may constitute an inconsistency if it would have been natural for the witness to include the fact in the statement if they believed it to be true

On its own, a witness’s present lack of memory of a fact is generally not inconsistent with a prior statement relating that fact (however, the court may find an inconsistency where the witness’s memory loss appears to be feigned)

if the witness remembers the fact on the stand, but didn’t remember the fact in the prior statement, the earlier lack of memory is generally considered inconsistent.

Question 6

prior inconsistent statements - when admissible as substantive evidence

Answer 6

Usually, prior inconsistent statements are admissible only for impeachment purposes.

UNLESS testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated
(oath more reliable and the witness is now subject to cross-examination)

Question 7

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if :

Answer 7

before the evidence is introduced:

1) witness given opportunity to explain/deny the statement;

2) adverse party given opportunity to examine witness about the statement

Exceptions - No foundation requirement in the following circumstances:

• prior inconsistent statement is an opposing party’s statement
• inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation
• court may dispense with the foundation requirement where justice requires (Ex. witness left stand and is unavailable when their inconsistent statement is discovered)

Question 8

Bias or interest - methods allowed

Answer 8

Majority rule - before extrinsic evidence can be used, witness must first be asked about the facts that show bias/interest on cross

Question 9

sensory deficiencies - methods allowed

Answer 9

cross examination or extrinsic evidence

*No foundation requirement for extrinsic evidence

Question 10

contradictory facts - methods allowed

Answer 10

cross-examiner can try to make the witness admit that they lied or were mistaken about some fact during direct examination.

If the witness sticks to their story, extrinsic evidence is permitted UNLESS the contradictory fact is collateral (has no significant relevance to the case or to the witness’s credibility)

Question 11

reputation or opinion evidence of untruthfulness - methods allowed

Answer 11

alling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.

Question 12

conviction of crime : type of crime allowed

Answer 12

any crime involving dishonesty or false statement. (perjury, false statement, criminal fraud, embezzlement, false pretense). *No discretion to bar impeachment.

felony not involving dishonesty/false statement. *discretion to exclude.

Question 13

conviction of crime : how old of convictions allowed?

Answer 13

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.

may admit an older conviction if:
(1) its probative value substantially outweighs its prejudicial effect (reverse-403 that strongly favors exclusion); and

(2) proponent gives the adverse party reasonable written notice of their intent to use it.

Question 14

conviction of crime : methods allowed

Answer 14

direct or cross-examination or by introducing a record of the judgment, although other methods of proof (such as testimony from witnesses) may be permitted.

No foundation is necessary for extrinsic evidence.

Question 15

conviction of crime - effect of pardon

Answer 15

conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either:

• pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or
• pardon was based on innocence (irrespective of any subsequent convictions)

Question 16

conviction of crime - juvenile convictions be used?

Answer 16

generally not admissible for impeachment purposes.

But in CRIMINAL - judge 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.

Question 17

bad acts involving untruthfulness - methods allowed

Answer 17

on cross ONLY. Additionally, the cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act.

Question 18

impeachment on collateral matter rule

Answer 18

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Question 19

impeachment of hearsay declarant - methods allowed

Answer 19

any of the impeachment methods.

need not be given the opportunity to explain or deny a prior inconsistent statement.

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.

Question 20

rehabilitation methods

Answer 20

• explanation on redirect
• opinion/reputation testimony about good character for truthfulness
• prior consistent statement

Question 21

prior consistent statement - when can it be used?

Answer 21

attacked by an express/implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence.

If impeached on some different ground (other than a general attack on the witness’s character for truthfulness), may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility.