6: Impeachment of witnesses Flashcards
Admissible prior acts
A conviction for a crime involving dishonesty is admissible to impeach any witness.
A felony conviction is admissible to impeach any witness unless the risk of prejudice substantially outweighs the probative value.
If more than 10 years have elapsed since conviction or release from confinement, the conviction is admissible only if the probative value substantially outweighs the prejudicial effect.
Character for truthfulness
A party may introduce character evidence–-reputation or opinion testimony—that a witness is a dishonest person.
Specific instances of conduct generally are not admissible except on cross-examination, if probative of the truthfulness or untruthfulness of the witness—or of another witness about whose character the witness being cross-examined has testified.
But when the witness denies a specific instance of conduct on cross-examination, extrinsic evidence is not admissible to prove that instance in order to attack or support the witness’s character for truthfulness.
Character for truthfulness: specific acts
Character for truthfulness generally may not be attacked through prior specific acts unless on cross examination.
Extrinsic evidence of the statement may be introduced if the witness is given an opportunity to explain or deny the evidence.
Prior inconsistent statements: hearsay declarants
A hearsay declarant may be impeached by prior inconsistent statement as if the declarant was testifying as a witness.
The requirement that the declarant be provided with an opportunity to explain or deny a prior inconsistent statement does not apply when the statement impeaches a hearsay declarant.
Methods of rehabilitation
(1) Giving the witness a chance to clarify and explain;
(2) Offering a prior consistent statement if the witness is accused of changing her story;
(3) Offering evidence of the witness’s character for truthfulness after being attacked for untruthfulness.
Prior arrests
A witness may not be cross-examined about an arrest because an arrest for a bad act is not a bad act itself.
Prior inconsistent statements: extrinsic evidence
Extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
The witness’s opportunity to explain or deny the statement need not take place before the statement is admitted into evidence.
The opportunity to explain or deny a prior inconsistent statement does not apply when the statement qualifies as an opposing party’s statement.
Impeachment: collateral issues
Although the Federal Rules do not explicitly prohibit impeachment on collateral issues, a court may refuse to admit evidence related to a collateral issue under the Rule 403 balancing test—e.g., for fear of confusing the jury.
Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness’s testimony.
Prior inconsistent statements: lack of memory
A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.
