22 - Witness Credibility Flashcards
Credibility
Worthiness of belief
Stages of Credibility (3)
- Bolstering
- Impeachment
- Rehabilitation
Impeachment - attempts to diminish or attach a W’s cred
Regulated attempts to support credibility
- W’s cred may not be bolstered (supported)
- W’s cred may be rehabilitated (supported) after impeachment
Both support, difference is timing
Types of Impeachment (5)
- Bias or Interest
- Sensory or Mental Defect
- Character for untruthfulness (includes impeachment by rep, opinion, prior convic, and prior untruthful acts)
- Specific contradiciton
- Prior inconsistent statements (self-contradiction)
610 prohibits using W’s religious beliefs to inpeach and a special impeachment rule on learned treatises applies to experts. hearsay declarants may be impeached
Extrinsic Evidence (Collateral Matters)
Depending on the method, impeaching evidence may be elicited on cross-examination or through other witnesses (extrinsic evidence)
- admissibility of extrinsic evidence depends on the type of impeachment - whether method is considered “collateral” (conclusory label)
- If collateral, extrinsic evidence is prohibited
- If not collateral, extrinsic is allowed
Some blanket rules
- some types of impeachment, such as bias, were never considered collateral at common law - so extrinsic always allowed.
- other types are always collateral ex 608(b) prohibits extrinsic evidence of specific instances of untruthful conduct not resulting in convictio
Foundational Requirements
- Admissibility of extrinsic evidence for some type of impeachment is conditioned on the “laying” of a proper foundation during the examination of the witness.
- Cross examiner must question the witness about the impeaching matter as a prerequisite to introducing extrinsic evidence through other witnesses
Prohibition on Bolstering
- A Ws credibility may not be bolstered or supported with evidence relevant only for that purpose, until after impeachment
Prohibition on Bolstering - Exceptions
- Pretrial identifications - Ws in-court idetification of an accused as the person who committed the crime may be bolstered or corroborated by evidence of a prior out-of-court identification (lineup, photo display) - a type of prior consistent statement. Not as important b/c 801 exempts prior identifications from the hearsay rulemaking identification admissible as substantive rather than merely corroborative
- Fresh complaints - rape V’s in-court testimony may be bolstered by the fact that she made a complaint soon after the incident - prior consistent statement. Also usually covered as a hearsay exception
- (fed) Plea bargaining agreements - permit the prosecution on direct exam to introduce the cooperation agreement. 2nd circuit has ruled in contrast - prosecution may not introduce aspects of a plea deal that could bolster the Ws credibility unless D attacks that cred
Impeachment of own Witness
A. Voucher Rule (abolished)
B. Prior inconsistent statements
A. Party couldn’t impeach its own witness (CL)
B. prior inconsis state constitutes hearsay and are generally admissible only for impeachment - non hearsay purpose. Thus a party could call a hostile witness for sole purpose of disclosing prior inconsistent statement (hearsay) to the jury
Bias Impeachment
- Bias, interest, partiality, or corruption is always relevant for impeach
- No FR
- 2 categories
- relationship between W and one of the parties may show bias, may be favorable ex. familiar. employment, sexual, business, or may be hostile - caused by prior fights and quarrels. Fear may also be an impeaching factor
- Relationship between W and the litigation ex financial interest is the case at bar, or in related case. common ex - prosecution W offered immunity or a reduced charge in exchange for test for D - frequently raise confrontation issues
Bias Impeachment - Confrontation issues
A. Right of confrontation
B. Foundational Requirement
C. Extrinsic Evidence
A. Substantial curtailment of a crim D efforts to establish the bias of a prosecution W is unconstitutional
B. more jurisdictions require a foundation be laid on cross before extrinsic evidence of bias is admissible - examiner may question the W about the bias or be foreclosed from presenting the testimony of other witnesses (extrinsic evidence)
C. CL - bias not considered collateral matter so extrinsic evidence of bias was always admissible - 2001 403 should control in this context - makes sense where W admits the bias on cross, eliminating the need for extrinsic proof
Impeachment: Sensory & Mental Defects
- No FR
- Any sensory or mental defect that affects a W’s capacity to observe, recall, or relate the events about which the W has testified is admissible to impeach
- evidence that W was under influence of alcohol or drugs falls here (time of event or trial) - but alcoholism or addiction generally doesn’t
- Extrinsic evidence - defets can be examined through cross-exam - admissibility of extrinsic evidence should be regulated by the trial court 403
- only specific acts?
Untruthful Character Impeachment: Prior Conviction
Proof -
405(a) permits specifc acts.
608(a) allows opinion and reputation evidence to show Ws untruthful character. Before rep evidence permitted - foundation must be laid showing the character W is acquainted with the W’s reputation in the community - similar with opinion but focuses on the character W’s personal relationship with the principal W rather than on community contacts
608(b) allows impeachment by specific acts that have not resulted in a conviction - under limited circumstances.
609 permits impeachment with prior convictions under some conditions (convics based on no contest pleas are admiss while arrests and idictments are not) conduct that is the basis for an arrest or indictment may be admissible 608(b) if reflects untruthful character - civil and crim - can’t be offered under impeachment theory other than untruthful character or for reasons other than impeachment.
-ANY WIT CAN BE IMPEACHED FOR PRIOR FELONY
609(a)(2) - automatically admisses crimes of dishonestly or false statement
609(b) - ten year limit from time of charge or release from confinement (whichever is later date) except if tgeh proponent provides sufficient advance written notice and the court determinesthat probative value substan outweighs
Juvenile adjudications 609(d) - not admiss to impeach unless in crim case to impeach W other than accused if the conviction would be admissible to attack an adult’s credibility and if necessary to fairly determine guilt or innocense
Untruthful Character - Prior Acts 608(b)
- Specific acts NOT admissable
(only admiss if the conduct reflects untruthful character, is probative value outweighs, a good faith basis for inquiry and the evidence is introduced on cross (not through extrinsic ev))
Prior inconsistent statements 613
- prior statement must be inconsistent with the Ws trial testimony
- 613(a) - concerned only with written - written statement ned not be shown to a W as a prerequisite to an examination
- 613(b) - CL W must have been afforded an opportunity to explain or deny prior inconsistent statement BEFORE extrinsic evidence of that statement was admissible - FR does not require W opportunity to explain before extrinsic evidence is introduced as long as given opportunity at some time during the trial. Foundation need not be laid when W first testifies
