Impeachment

Question 1

Does a witness have to testify to be impeached?

Answer 1

Usually yes. if not, there is no testimony to impeach. However, when an out of court statement is admitted under 801(d)(2) (party opponent) or via a hearsay exception, the declarant’s credibility may be attacked via impeachment evidence.

Question 2

When can extrinsic evidence be used?

Answer 2

Impeachment for bias, prior crime under 609, contradiction (but not for collateral matters and must pass 403; still has to be independently admissible), probably impeachment for impairment but no explicit case law (NOT for truthfulness, except for specific matters on cross)

Question 3

Types of Impeachment

Answer 3

Bias, Impairment, Prior Crime (609), Character for Truthfulness (608), Inconsistent Statements

Question 4

Rule 608 - Character for Truthfulness

Answer 4

Trait may be offered by reputation or opinion evidence only after the witness’s trait for truthfulness has been attacked. This is permitted extrinsic evidence.
Extrinsic evidence is not allowed to prove the specific instances of conduct, but on cross, the court may allow inquiry into them if they are probative of that witness’s (un)truthfulness or the (un)truthfulness of another person that witness testified about, subject to good faith basis.

Question 5

Can convictions from over 10 years ago be admitted?

Answer 5

yes, if the probative value, supported by specific facts and circumstances, substantially outweighs the prejudicial effect

Question 6

When must evidence of past convictions be admitted?

Answer 6

For crimes less than 10 years ago:

• If witness is D and crime was felony, if the probative value outweighs the prejudicial effect to the D.
• If witness is NOT D and crime was felony, must be admitted subject to 403.
• Crimes of dishonesty, regardless of felony status or who the witness is (no judicial discretion, must come in)

Question 7

Factors to consider when determining whether to admit D’s felony conviction from less than 10 years ago

Answer 7

• the degree to which the crime reflects on credibility
• whether D’s credibility is central to the case
• the remoteness of the conviction
• the similarity between the conviction and the crime charged (similar = bad)
• whether it discourages D from testifying (don’t want to do that)
• whether it will inspire digest from the jury
• whether there is another way to adequately explore credibility