Bolstering, Impeachment and Rehabilitation Flashcards
Bolstering / Vouching
Bolstering / Vouching generally means seeking to enhance the witness’s credibility before it has been attacked. This is usually prohibited. For example, FRE 608(a) provides that “evidence of truthful character is admissible only after the witness’s character for truth has been attached.”
Permitted Bolstering / Vouching
Some evidentiary rules have the effect of bolstering and can be used before an attack. Examples include
- Substantive use of prior consistent statements
- Prior statements of identification where there is also an in-court identification
- Character trait for honesty when admitted pursuant to FRE 404 and 405
- Exploration of an expert witness’s qualifications
Five Most Common Types of Impeachment
- Character for truthfulness (reputation, opinion, prior bad acts, prior conviction)
- Bias or interest
- Sensory or mental defects
- Specific contradiction
- Prior inconsistent statements
Witness Demeaner
This is often an important way to access credibility
Common Law for Impeachment
Under the common law, a party could not impeach its own witness
FRE 607 Who May Impeach a Witness
Any party, including the party who called the witness, may attack the witness’s credibility
FRE 608(a) A Witness’s Character for Truthfulness or Untruthfulness
Reputation or Opinion
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character has been attacked
FRE 608(b) A Witness’s Character for Truthfulness or Untruthfulness
Specific Instances of Conduct
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of
- The witness or
- Another witness whose character the witness being cross-examined had testified about
By testifying on another matter, the witness does not waive any privileges against self-incrimination for testimony that relates only to the witness’s character for truthfulness
Use of Extrinsic Evidence in FRE 608
You can use extrinsic evidence for FRE 608(a) but not for FRE 608(b), except on cross-examination or redirect.
United States v. Manske
7th Cir. 1999
Three Ways to Interpret FRE 608(b)
- Broad Interpretation – all bad conduct shows untruthfulness
- Middle Interpretation – behavior that seeks personal gain at the expense of depriving others of their rights speaks to the actor’s untruthfulness
- Narrow Interpretation – only crimes that involve falsehood and deception, such as forgery and perjury, have a bearing on truthfulness
FRE 609(a) Impeachment by Evidence of a Criminal Conviction
In General
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction
- For a crime that, in the convicting jurisdiction, was punishable by death or imprisonment for over one year, the evidence
- Must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
- Must be admitted in a criminal case in which the witness is the defendant, if the probative value of the evidence outweighs its prejudicial effect and
- For any crime regardless of punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving – or the witness’s admitting – a dishonest act or false statement
FRE 609(b) Impeachment by Evidence of a Criminal Conviction
Limit on Using the Evidence After 10 Years
This subsection (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if
- Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect and
- The proponent gives an adverse party reasonably written notice of the intent to use it so that the party has a fair opportunity to contest its use
FRE 609(c) Impeachment by Evidence of a Criminal Conviction
Effect of a Pardon, Annulment, or Certificate of Rehabilitation
Evidence of a conviction is not admissible if
- The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year or
- The conviction has been the subject of a pardon, annulment, or equivalent procedure based on a finding of innocence.
FRE 609(d) Impeachment by Evidence of a Criminal Conviction
Juvenile Adjudications
Evidence of a juvenile adjudication is admissible under this rule only if
- It is offered in a criminal case
- The adjudication was of a witness other than the defendant
- An adult’s conviction for that offense would be admissible to attack the adult’s credibility and
- Admitting the evidence is necessary to fairly determine guilt or innocence
Balancing Factors for FRE 609
- Nature (impeachment value) of the crime
- Remoteness
- Subsequent history
- Similarity between the past and charged crimes
- Importance of the defendant’s testimony
- Importance of credibility issues
Analysis for FRE 609(a)(2)
- Look at the statutory elements
- Loot at the face of the judgment
- Look at the indictment
- Look at the jury instructions
United States v. Jefferson
5th Cir. 2010
Impeachment by Prior Conviction
The defendant was convicted based on prior convictions for bribery and obstruction of justice. The defendant’s conviction of bribery was automatically admissible because one of bribery’s elements involves dishonesty. The defendant’s conviction of obstruction of justice had to be admitted under FRE 609(a)(2) because his indictment said he knowingly and corruptly attempted to persuade someone to lie to the authorities. That would allow the fact finder to find an act of dishonesty or false statement