4) Witnesses, inc. impeachment Flashcards
general rule of competency 601
every person competent to be a wit
dead man’s statutes: fre?
no! only state law, could come in under diversity/Erie
dead man’s statute: def
wit can’t testify re any convo or transaction w the deceased
lay wit reqs: 602
must have personal knowledge
wit oaths: 603
must take or can’t testify, no excuses
judge as wit
presiding judge can never testify
automatic, dnn object (plain error)
juror as wit
no
juror testify re deliberations 606(a) rule
generally NOT at all re manner in which reached verdict, inc no affidavits
(even if things got very improper)
juror testify re deliberations: exceptions
–juror’s st during deliberations that tends to show racial animus was significant motivating factor in vote to convict
–etraneous prejduicial information / outside influence on any juror
–clerical error on verdict form
impeachment: who
ANY party may attack credibility of a wit (ok attack your own wit)
collateral matter rule
collateral matter = evidence solely re credibility of wit
extrinsic evidence on collateral matters is inadmissible to impeach
ie: when only about crediblity, questioning party is bound by witness’ answers on cross – CANT CALL IN OTHER WITS / DOCS re the collateral issue
impeachment: bias: CMR
CMR does not apply – bias is always material
impeachment: bias: exs
1) personal or family rship or hositility
2) business rship
3) confidential informant
4) fee arrangement
impeachment: sensory defects: CMR?
no
but usu not allowed ask if ADDICTED to drugs/alcohol
impeachment: kinds
1) bias
2) sensory defects
3) prior inconsistent sts
4) character
impeachment: ch: vs 404
ch evid for impeachment:
- -of witness (could be a party)
- -just about truthfulness
- -for limited use of impeachment (NOT about ch overall)
impeachment: ch: 608(a) wit’s ch for untruthfulness
- -always material
- -may attack by reputation + opinion evidence
- -either party can call a wit
impeachment: ch: 608(a): wit’s ch for TRUTHFULNESS
can be shown by reputation or opinion only if wit’s ch for truthfulness was first attacked – no bolstering in advance
impeachment: ch 608(b): specific acts
can ask questions on cross-exam re prior unconvicted acts (specific instances) bearing on (un)truthfulness (ok to support too) – but no extrinsic evidence
impeachment: ch 608(b): specific acts: limitations
1) must be probative of truthfulness
2) must be asked in good faith
3) can’t be too remote in time (403)
4) only questions of fact
5) no rumors
6) NO ARRESTS
impeachment: ch: convictions 609: scope
civil + crim
all parties
impeachment: ch: convictions 609: kinds
1) felonies
2) crimes involving dishonesty or false st (felony or misdemeanor
impeachment: ch: convictions 609: felonies: rule 609(a)(1)
1) for wit other than D: subject felony convictio to 403 balancing – discretionary
2) for the D – will admit if probative value outweighs the prejudicial effect
felony: def
crimes punishable by death or imprisonment of more than 1 year
impeachment: ch: convictions 609: crimes w dishonesty 609(b)
admissible as a matter of right (no balancing) as long as less than or equal to 10 years old
crimes w dishonesty: def
any crime where deceit or untruthfulness = element
crimes w dishonesty: theft
no! (but larceny by trick–yes)
convictions less than 10 years old – how measure
fromd ate of conviction or of release, whichever is more recent
impeachment: ch: convictions 609: crimes of dishonesty 609(b): if more than 10 years old
not admissible unless probative value substantially outweighs prejudicial effect
must give notice to opponent
impeachment: ch: convictions 609: juvenile convictions
generally inadmissible
NEVER admissible against D if testifies
impeachment: ch: convictions 609: convictions on appeal
still admissible, but can tell jury it’s on appeal
impeachment: ch: convictions 609: convictions that are pardoned
not admissible
impeachment: ch: convictions 609: arrest records, indictments, charges
not admissible under this rule
impeachment: ch: convictions 609: guilty pleas
yes admissible
impeachment: ch: convictions 609: suppressed evidence
yes admissible (FOR impeachment only)
can D hide prior convictions by not testifying?
generally yes, but:
1) admissible at sentencing
2) under 404(b) – someone else puts D’s ch at issue
evidence of wit’s relig believes 610
inadmissible to impair or enhance credibility
jurors asking qs? 611
yes in fed ct
times leading q may be appropriate on direct
1) hostile wit
2) adverse wit
3) child wit
4) preliminary background info
5) refreshing recollection
time you CAN’T use leading q on cross
if examiner and wit are on same side, can never use leading qs
scope of cross 611(b)
limited to:
scope of direct + matters affecting credibility
refreshing recollection: 612: scope
NOT extrinsic – just jogging memory –> asking wit to testify independently of the writing
the doc isn’t evidence + dnn authenticate
this is not past recollection recorded, 803(5) which is a substantive use of the doc
refreshing recollection: 612: rights of adverse party
inspect it
cross-examine w it
show to jury to compare w testimony
introduce relevant portison into evidence
refreshing recollection: 612: use of privileged material
waiver has occurred + other side can inspect
but, only waived for this lmited purpose
prior inconsistent st 613: contrast other rule
here, prior inconsistent st is NOT sworn. Admissible ONLY to impeach
vs 801: PINS comes in for truth
prior inconsistent st 613: scope
can be oral or written
if not given under oath, can ONLY be used for impeachment (ex. dv police report)
prior inconsistent st 613: things must do
1) dnn show wit, but must show to OPC on request
2) can’t call wit just to impeach w piror st
prior inconsistent st 613: foundation required
extrinsic evidence of the st may be admissible if:
1) wit has opportunity to explain or deny at some point
2) OPC opportunity to interrogate sponsoring wit, unless interests of justice require otherwise
3) if wit DENIES making the PINS, extrinsic evidence avail TO IMPEACH only
4) if wit admits the PINS, wit has right to explain answer
sequestering wits: 615
at request of party, court shall order wits excluded, so can’t hear tmony of other wits
sequestering wits: 615: exceptions
can’t exclude:
1) party or party’s rep
2) essential wits, like expert
3) persons exempted by statute (victim of crime)
sequestering wits: 615: result if court dn exclude
error
remedy = mistrial (must show greater than harmless error)
