Impeachment (607-610, 613) Flashcards
(35 cards)
T/F: Extrinsice evidence of a prior inconsistent statement of a witness who has since left the stand may be introduced even if the declarant of the prior statement has not first been given an opportunity to explain or deny the prior statement/
- false
- if you’re going to do this, you have to give the other side notice
- sequence of a 613 impeachment:
- ask (make sure you’ve asked all of your question)
- commit (“are you denying this statement”)
- confront (can I approach to impeach the person while they’re on the stand?)
- if you impeach on the stand, you can ambush and impeach W
- do not have to give them an opportunity to explain on the stand
- everyone always gets a redirct
- sequence: direct, cross, redirect
- ex. you ask question, and you know W said something different to another W. You want to impeach the W with the inconsistant statement
- can only introduce extrinsic evidence if it is material under 613
- collateral evidence rule applies
- if they made a statement on direct, you can ask about a prior inconsistent statement at any time b/c it’s a proper form of impeachment
- can’t ask extrinsice evidence unless it is material to the facts of the case
- one of the most common forms of impeachment
- can only introduce extrinsic evidence when W is off the stand if you give notice to the other side
- pg. 26 of the foundation outline
- collateral evidence rule applies
T/F: Evidence that a person has previously made a statement consistant with her trial testimony is admissible to corroborate her trial testimony without any foundation than establishing a consistency.
- false
- voucher rule = you can’t vouch for a W until they have been attacked
- prior consistant statement will rearely come in on direct b/c you can’t corroborate until you’ve been impeached (voucher rule)
- difficult to get a prior consistent statement in
- can only come in on redirct
- pg. 27 of the foundational outline
- this is the opposite of impeachment
- will be triggered by impeachment
- **can’t corroborate unless you impeach (voucher rule)
T/F: If more than 10 years has elapsed since a witness’ conviction of a crime or his release from confinement for that conviction, whichever is later, it would be error for the trial court to admit the prior conviction to impeach the witness’s credibility.
- false b/c they can still admit it but they have to go through an analysis to get it in
- can get in a conviction if older than 10 years if probative value
- rule 609 is a 104(a) issue for the judge
- on exam: this is discretionary issue for the judge to decide whether older than 10 years will come in
- 609 has a soft 10 year rule - can be trumped by the court if you give them notice and argue that is probative
- 10 years = determined by the most recent event (like when you get out of jail)
T/F: P sues D for negligence arising out of an auto accident. D offers the testimony of X, an insurance investigator who interviewed P after the accident. After X’s testimony, P asks X if he is employed by D’s insurance company. If X says “no”, P may introduce extrinsic evidence of X’s employemnt by D’s inurance company.
- true b/c it will go to the bias of W and bias is important
- there is also the 411 rule, a way insurance can come in
- this is bias/impartiality impeachment coming from CL
- is not subject to the collateral evidence rule b/c bias is so intrinsic to the credbility of the witness
- if they deny it, should be able to introduce
- bias questions are common
- credibility is always relevant (see the 5 categories)
- if it’s on the list, you can ask about it on cross
- b/c credibility is always relevant
- if it’s on the list, you can ask about it on cross
T/F: Evidence of a previous felony conviction is relevant for credibility purposes and can be used to impeach the credibility of the witness, but only if the felony is a crimen falsi, or, in other words, a crime of dishonesty.
- false
- b/c under 609, a felony is a crime that is punishable by more than 1 year. If misdemeanor, it only comes in if it is a crimen falsi
- robbery is not a crimen falsi
- test for crimen falsi = does one of the elements of the offense involve an act of dishonesty
- if yes, then even if misdemeanor, it comes in under 609
- if felony conviction is for a crimen falsi felony, most courts will let it in for bias even if it is older than 10 years
- the close it is to crimen falsi, the more likely the court is going to let it in
- pg. 517
T/F: S v. D for armed robbery. W testifies for D. The trial judge has discretion to allow S to ask W if she was recently suspended from college for falsifying a financial aid form.
- true under 608(b)
- yes, can ask the question
- if they deny the answer, you cannot introduce extrinsic evidence b/c the collateral evidence rule applies
- pg. 24 of foundation outline
T/F: S v. D. for armed robbery. W testifies for D. The trial judge has discretion to allow S to ask W if she was recently suspended from college for falsifying a financial aid form. If W denies that she was recently suspended from college for falsifying financial aid forms, the state may introduce, even over an objection, a properly authenticated copy of the suspension records to rebut the denial.
- false
- b/c the collateral evdience rule applies to 608
S v. D. If W testifies for D and denies on cross examination that he (W) regularly dates D’s sister, the state may introduce over objection, testimony by Y, W’s roomate, that W does in fact regularly date D’s sister.
- true
- b/c it goes to bias
- there is some interest b/t the relationship
T/F: Where a witness has been impeached by the introduction of a prior inconsistent statement, the witness may always be rehabilitated by the introduction of a prior consistent statement.
- false
T/F: Plaintiff in an intersection collision case calls W-1, who surprises plaintiff’s counsel by testifying that the plaintiff ran through the red light. Even though Plaintiff is unhappy with this testimony, Plaintiff cannot call W-2 to testify that he saw the plaintiff wait until the light was green b/c this would violate the rule against introducing extinsice vidence on a collateral contradiction.
- false
- is not a collateral issue
T/F: A witness’s religion cannot be questioned on cross exaimination under rule 610, even if his church has a financial interest in the outcome of the case.
- false
- general rule: religion is not relevant to credibility (it used to be under CL)
- exception:
- Abe; - US SC case
- Aryan brotherhood case
- prison gang swore oaths to lie, steal, cheat, and kill for eachother
- SC: you can bring up religion b/c it goes to bias
- 610 says you can’t bring up the fact that a person is a member of a religion but you can bring it up if it is central to the W’s credibility
- pg. 525 of text, 25 outline
- Abe; - US SC case
- this type of issue is factually dependent
- generally religion doesn’t come in
- Abel - if you can establish that there is a bias purpose - then it can come in
On cross-examination of Vic, an eye witness to an accident testifying for the plaintiff, Defendant’s attorney asked if Vic was drunk at the time he witnessed the accident. When Vic responded, “No, I have never been drunk in my life” Dan’s attorney sought to prove through the testimony of another witness that Vic was drunk on New Year’s Eve two years before the accident. The trial judge should rule that Yank’s testimony is:
A. Admissible to impeach VIc by showing that he had an imperfect recollection of recent events.
B. Admissible to show that Vic is not the kind of person on whom one should rely for ascertaining the truth.
C. Inadmissible b/c a witness cannot be impeached by specific acts of misconduct.
D. Inadmissible b/c the question of whether Vic has ever been drunk is a collateral matter and, therefore, while the contradicting question can be asked, no extrinsice evidence can be introduced to disprove a false answer.
- D
- a question can be asked on cross on anything that would be relevant to the person’s perceptive ability and remembering ability (competancy)
- so yes, can ask if W was drunk b/c their ability to perceive and rememeber is affected (competancy)
Action for breach of contract. The defendant takes the stand and testifies to anticipatory breach by the plaintiff. On cross-examination, the plaintiff asks the defendant whether he had been dishonorably discharged from the Marine Corps for lying to a Congressional Committe investigating procurement fraud. The defendant objects to the question on the ground of improper impeachment. The trial court should:
A. Require the witness to answer the question as a proper impeachment under Rule 608 and permit extrinsic proof of the discharge if defendant denies it.
B. Sustain the ojbection b/c the question asks for improper character evidence b/c it does not qualify as a felony conviction under Rule 609
C. Require the witness to answer the question as proper impeachment under Rule 608, but prohibit the plaintiff from offering extrinsic proof of the discharge if defendant denies it.
D. Exclude the evidence as improper character evidence under Rule 404.
- C
- yes, can ask the question
- this is credibility under the character category
- 608(b)
- if you have a good faith basis, you can ask the question
- but you cannot follow up if a false answer is given
*
Darden was prosecuted for armed robbery. At trial, Darden testified in his own behalf, denying that he had committed the robbery. On cross-examination, the prosecutor intends to ask Darden whether he had been convicted of burglary 6 years earlier.
The question concerning the burgalrly conviction is
A. Proper if the court finds that the probative value for impeachment outweighs the prejudice to Darden.
B. Proper, b/c the prosecutor is entitled to make this inquiry as a matter of right under Rule 609 if the defendant take the stand and has been convicted previously.
C. Improper, b/c burglarly does not involve dishonesty or false statement.
D. Improper, b/c the conviction must be proved by court record, not by question on cross-examination.
- A
- ground for impeachment: character evidence - specifically 609
- yes, can ask the question b/c it goes to credibility
- you are not stuck with the answer b/c CER doesn’t apply to 609
- this is tricky b/c it’s the D
- if it is a criminal D that takes the stand (most of the time they won’t), generaly rule, you can’t show that D is a bad guy
- don’t want jury to think he’s a bad guy
- the worse he is, the more likely to voncit
- 609 is subject to reverse balancing
- presumption is against introducing criminal convictions against the accused
- have to show probative value outweighs the discriminatory effect
- presumption is against introducing criminal convictions against the accused
- whenever you see a 609 question, look at who is on the stand
- if it’s a criminal D, ask judge through a motion in limine
- if judge is going to let in evidence, then the W will probably not be called
- if it’s someone other than the accused in a criminal case, it is presumptively admissible
- if it’s the accused, then the courts are likely to exclude it
In Polk’s negligence action against Dell arising out of a multiple-car collision, Witt testified for Polk that Dell went through a red light. On cross-examination, Dell seeks to question Witt about her statement that the light was yellow, made in a deposition that Witt gave in a separate action b/t Adams and Dell. The transcript of the deposition is self-authenticating. On proper objection, the court should rule the inquiry
A. Admissible for impeachment only under Rule 613
B. Admissible as substantive evidence only.
C. Admissible for impeachment and as substantive evidence.
D. Inadmissible, b/c it is hearsay not within any exception.
- C
- here we have a prior inconsistant statement
- yes, it comes in for the purpose of impeachment
- b/c it was under oath in a prior proceeding, it will come in even though the other side hasn’t had a chance to examine it
- rule 613: cross reference both admissions and 801(b)(1)(a) as a non hearsay category
Nelson is being tried for wire fraud and conspiracy to commit wire fraud in connection with fraudlent efforts to acquire real estate. On direct exaimination of Nelson (a married man) his own attorney asked about his relationship with one of the other alleged coconspirators. Nelson answered, “I have a strictly business relationship with her.” If the defense objects on Rule 608 (improper impeachment), Rule 404 (improper prior bad acts) and Rule 403 (unfairly prejudicial) to the prosecutor’s question about the relationship on cross examination, asking “aren’t the two of you really lovers” (assuming a good faith basis for asking the question) the court should:
A. Overrule the objections and allow the question b/c the question contradicts the direct testimony and is relevant to the alleged conspiracy relationship b/t the parties.
B. Sustain the Rule 608 objection, b/c an affair is not a prior bad act that goes to truthfulness.
C. Sustain the Rule 404 and 403 objections b/c a married man’s sexual relationship with another woman would constitute a prior bad act and it would be unfairly prejudicial.
D. Both B and C are correct
see US v. Brockeborrough
- A
- this question goes to bias and potential contradiction
- if you have any relevant non collateral issue, then you can get it in
- can prove the false answer b/c of bias
Drew is charged with a murder of Pitt. The prosecutor introduced testimony of a police officer that Pitt told a priest, administering the last rite, “I was stabbed by Drew. Since I am dying, tell him I forgive him.” Thereafter, Drew’s attorney offers the testimony of Wall that the day before, when Pitt believed he would live, he stated that he had been stabbed by Jack, an old enemy. The testimony of Wall is:
A. Admissible under an exception to the hearsay rule
B. Admissible to impeach the dead declarant
C. Inadmissible b/c it goes to the ultimate issue in the case
D. Inadmissible b/c an improper impeachment of a dead declarant.
- B
- this is going to come in b/c it’s a contradicting statement
- issue: can you impeach a dead W?
- yes, b/c his testimony comes in as a hearsay exception (806)
- rule: you can impeach people that take the stand and people who’s testimony cam in either directly or indirectly
- ex. deposition
- the people who depose are subject to the same 5 grounds of impeachment
- their testimony has to be introduced
- ex. deposition
Davis is being tried for the rape of Peg by force. Davis admits to having sex with Peg, but insists that the sex was consensual. Zeke, a witness from the village of Meadows in another state, testified for the defendant. The prosecution waived cross-examination, whereupon defendant’s attorney offered Joe as a witness to testify that Zeke had a reputation for truth and veractiy in Meadows. On objection, the trial judge should rule Joe’s testimony
A. Inadmissible b/c the reputation testimony involves a different jurisdiction
B. Inadmissible b/c you cannot corroborate by reputation testimony unless the opponent seeks to impeach the witness by character evidence for untruthfulness.
C. Admissible character evidence under Rule 608
D. Inadmissible hearsay.
- is not going to come in
- voucher rule - can’t vouch until they other side attacked
- 608(a): any time W takes the stand, their character/truthfrulness is at issue
- allows another W to take the stand to say someone else is a liar
- waived cross so they haven’t been attacked so they haven’t opened the door for 608(b) evidence to come in
Davis is being tried for the rape of Peg by force. Davis admits to having sex with Peg, but insists that the sex was consensual. Zeke, a witness from the village of Meadows in another state, testified for the defendant. The prosecution waived cross-examination, whereupon defendant’s attorney offered Joe as a witness to testify that Zeke had a reputation for truth and veractiy in Meadows. On objection, the trial judge should rule Joe’s testimony
In the above rape trial, to prove consent, Davis calls Quigley, a defense-witness, who testifies that he had overheard Peg invite Davis to become intimate with her that night. On cross-exaimination, Quigley may properly be asked whether he was ever
A. Arrested
B. Convicted of a felony, but the cross-examiner is bound by QUigley’s answer
C. Convicted of a misdemeanor, and the cross-examiner is not bound by Quigley’s answer
D. Convicted of such crimes as perjury, robbery, embezzlement, larceny by trick, larceny by bailee, and larceny, and the cross exaiminer is not bound by the answer.
- D
- you can ask if someone was arrested, but only if the arrest goes to a dishonest act (doesn’t have to be an arrest)
- arrested question generally doesn’t come in unless its for a dishonest act
- can come in b/c they are crimes that go to truthfulness
- doesn’t need to have an arrest so long as its a crime involving truthfullness
Powers sued Debbs for battery. At trial, Powers’ witness Wilson testified that Debbs attacked Powers without any provocation. On cross examination, Debbs asks Wilson about a false claim that Wilson had once filed on an insurance policy. The question is:
A. Proper under Rule 608, b/c the conduct involved untruthfulness
B. Proper provided the conduct resulted in conviction of Wilson.
C. Improper, b/c the impeachment involved a specific instance of misconduct,
D. Improper without extrinsic proof of the false claim.
- 608(b)
- any W that takes the stand can be questioned about prior bad acts that go to truthfulness
- A
A, a resident of NY, is on trial for the murder of B. A testifies that she acted in self-defense. A offers the testimony of Minister Smith, that A’s reputation in the congregation, back in Kansas, is that “A was honest, churchgoing woman.” The testimony is
A. inadmissible b/c it is improper reputation evidence in this case
B. Inadmissible b/c reputation evidence is not admissible in a criminal case
C. Admissible general reputation evidence, but only if A’s credibility for truthfulness is first attacked.
D. Inadmissbile hearsay.
- C
- can ask question but only if she’s been attacked
- voucher rule - can ask question but only if been attacked
- subject to exception under 404
In a forgery trial the prosecution offers a 2 year old armed robbery (a felony) arrest to impeach the defendant who has testified. Which is the most appropriate ruling:
A. The prior arrest is admissible only if the court concludes that the probative value of the arrest outweights its prejudicial impact.
B. Armed robbery involves dishonesty or false statement, therefore the court has no discretion to exclude the arrest.
C. The arrest should be excluded b/c the character for lack of truth and veracity of a defendant who testifies may not be attacked until the defendant offers evidence of his good character.
D. The arrest should be excluded.
- D
- can’t ge it in
- don’t confuse arrest and conviction
- felony arrests in general can’t get in
- crime in falsi arrests may come in
In an intersection auto collision case, when the witness denies the question at issue, extrinsic evidence is admissible to disprove a false answer that
A. the witness has been convicted of simple assault (misdemeanor)
B. The witness is not employed where he testified he is employed.
C. The witness was not standing on the corner where he testfied he was standing when he observed the accident.
D. The witness was not on his way to mail a letter, as he testified, when he saw the accident.
- C
- Can introduce extrinsic evidence b/c it goes to credibility, specifically competency (ability to perceive, narrate, rememeber)
- if you can show he wasn’t there, it shows he can’t remember
- subject to the CER
Personal injury suit arising out of the collision of cars driven by a rabbi and a Catholic bishop. A witness testifies that both were at fault. On cross exaimination, the witness is asked if he is a member of the KKK (which preaches dislike of Jews and Catholics). The question is:
A. An improper innuendo upon the witness’ character
B. A proper impeachment question if asked in good faith.
C. Objectionable b/c irrelevant to the facts of the case
D. Objectionable b/c it violates Rule 610, which prohibits impeaching a witness on the basis of his religious belifs.
- B
- can ask b/c it goes to bias
- is the Abel case
- rule: religion can be used to impeach if it goes to bias
