4) Witnesses, inc. impeachment Flashcards by Amy Kimbel

general rule of competency 601

every person competent to be a wit

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dead man’s statutes: fre?

no! only state law, could come in under diversity/Erie

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dead man’s statute: def

wit can’t testify re any convo or transaction w the deceased

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lay wit reqs: 602

must have personal knowledge

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wit oaths: 603

must take or can’t testify, no excuses

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judge as wit

presiding judge can never testify

automatic, dnn object (plain error)

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juror as wit

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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)

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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

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impeachment: who

ANY party may attack credibility of a wit (ok attack your own wit)

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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

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impeachment: bias: CMR

CMR does not apply – bias is always material

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impeachment: bias: exs

1) personal or family rship or hositility
2) business rship
3) confidential informant
4) fee arrangement

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impeachment: sensory defects: CMR?

but usu not allowed ask if ADDICTED to drugs/alcohol

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impeachment: kinds

1) bias
2) sensory defects
3) prior inconsistent sts
4) character

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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)

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impeachment: ch: 608(a) wit’s ch for untruthfulness

-always material
-may attack by reputation + opinion evidence
-either party can call a wit

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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

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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

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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

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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)