Bolstering, Impeachment and Rehabilitation

Question 1

Bolstering / Vouching

Answer 1

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.”

Question 2

Permitted Bolstering / Vouching

Answer 2

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

Question 3

Five Most Common Types of Impeachment

Answer 3

• Character for truthfulness (reputation, opinion, prior bad acts, prior conviction)
• Bias or interest
• Sensory or mental defects
• Specific contradiction
• Prior inconsistent statements

Question 4

Witness Demeaner

Answer 4

This is often an important way to access credibility

Question 5

Common Law for Impeachment

Answer 5

Under the common law, a party could not impeach its own witness

Question 6

FRE 607 Who May Impeach a Witness

Answer 6

Any party, including the party who called the witness, may attack the witness’s credibility

Question 7

FRE 608(a) A Witness’s Character for Truthfulness or Untruthfulness

Reputation or Opinion

Answer 7

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

Question 8

FRE 608(b) A Witness’s Character for Truthfulness or Untruthfulness

Specific Instances of Conduct

Answer 8

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

1. The witness or
2. 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

Question 9

Use of Extrinsic Evidence in FRE 608

Answer 9

You can use extrinsic evidence for FRE 608(a) but not for FRE 608(b), except on cross-examination or redirect.

Question 10

United States v. Manske

7^th Cir. 1999

Three Ways to Interpret FRE 608(b)

Answer 10

• 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

Question 11

FRE 609(a) Impeachment by Evidence of a Criminal Conviction

In General

Answer 11

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction

1. For a crime that, in the convicting jurisdiction, was punishable by death or imprisonment for over one year, the evidence
   
   1. 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
   2. 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
2. 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

Question 12

FRE 609(b) Impeachment by Evidence of a Criminal Conviction

Limit on Using the Evidence After 10 Years

Answer 12

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

1. Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect and
2. 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

Question 13

FRE 609(c) Impeachment by Evidence of a Criminal Conviction

Effect of a Pardon, Annulment, or Certificate of Rehabilitation

Answer 13

Evidence of a conviction is not admissible if

1. 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
2. The conviction has been the subject of a pardon, annulment, or equivalent procedure based on a finding of innocence.

Question 14

FRE 609(d) Impeachment by Evidence of a Criminal Conviction

Juvenile Adjudications

Answer 14

Evidence of a juvenile adjudication is admissible under this rule only if

1. It is offered in a criminal case
2. The adjudication was of a witness other than the defendant
3. An adult’s conviction for that offense would be admissible to attack the adult’s credibility and
4. Admitting the evidence is necessary to fairly determine guilt or innocence

Question 15

Balancing Factors for FRE 609

Answer 15

• 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

Question 16

Analysis for FRE 609(a)(2)

Answer 16

• Look at the statutory elements
• Loot at the face of the judgment
• Look at the indictment
• Look at the jury instructions

Question 17

United States v. Jefferson

5^th Cir. 2010

Impeachment by Prior Conviction

Answer 17

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

Question 18

United States v. Abel

1984

Facts

Answer 18

• The respondent went to trial for robbing a bank.
• A cohort, Ehle, testified that the respondent was part of the bank robbery.
• The respondent offered Mills as a rebuttal witness. Mills used to be in prison with Abel and Ehle. He testified against Ehle, saying that he told Mills he planned to falsely testify against Abel to get favorable treatment from the government.
• The government cross-examined Mills to ask if the three were in a secret prison organization and Mills denied it.
• Ehle testified again, saying they were all in the organization and had sworn to “lie, cheat, steal, [and] kill” to protect each other, so it would have been suicide for him to tell Mills he planned to falsely testify against Abel.

Question 19

United States v. Abel

1984

Procedural History

Answer 19

The district court allowed the testimony and convicted the respondent. The Court of Appeals reversed

Question 20

United States v. Abel

1984

SCOTUS’s Ruling

Answer 20

SCOTUS said the district court correctly admitted the evidence of the membership because it was sufficiently probative of Mills’ bias towards the respondent. The FRE are silent about issues of bias, but that doesn’t meant people can’t be impeached that way. The Confrontation Clause requires the defendant to be allowed to show a witness is bias. The common law allowed bias to be proven by extrinsic evidence. Evidence that they were in an Aryan Brotherhood gang was relevant and a 403 analysis would not exclude the details of its tenets because they showed the source and strength of Mills’ bias for the respondent. SCOTUS reversed.

Question 21

FRE 610 Religious Beliefs or Opinions

Answer 21

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility

Question 22

FRE 610 and Impeachment

Answer 22

FRE 610 does not prohibit inquiry into religious beliefs or opinions for the purpose of impeachment for bias or interests

Question 23

Common Law v. FRE Regarding Mental Illness

Answer 23

Under the common law, people with mental illness were not deemed competent witnesses. Under the FRE, people’s mental illnesses go to their credibility rather than their competency

Question 24

Effects of Chronic Alcohol Abuse

Answer 24

Chronic alcohol abuse can affect a witness’s ability to perceive properly

Question 25

Treatment of Alcohol and Drug Use

Answer 25

Courts treat alcohol use/abuse and drug use/abuse the same way

Question 26

Specific Contradiction

Answer 26

Specific contradiction is contradicting the witness’s testimony with the witness’s own conduct or words or with testimony of another witness

Question 27

Specific Contradiction Extrinsic Evidence

Answer 27

Extrinsic evidence is only allowed when it satisfied the FRE 403 balancing test and only if it addresses a matter central to the case.

Question 28

Collateral Matter

Answer 28

A collateral matter is one that is not relevant to a main issue in the case. In other words, evidence introduced on to impeach the witness. You can’t use extrinsic evidence to prove collateral matters. Judges use the 403 balancing test to decide whether a matter is collateral.

Question 29

FRE 609’s Role in Impeachment by Contradiction

Answer 29

FRE 609 does not govern impeachment by contradiction. It governs impeachment of a witness’s character for truthfulness. If a witness says he has never been convicted of a crime, FRE 609(b) doesn’t allow you to use information that he was convicted over 10 years ago to prove he has an untruthful character, but you can use the same information to show specific contradiction

Question 30

Relationship Between Specific Contradiction and Prior Inconsistant Statements

Answer 30

Because impeachment by prior inconsistent statement is just a subset of impeachment by specific contradiction, the evidence rule for prior inconsistent statements applies to specific contradiction

Question 31

FRE 613(a) Witness’s Prior Statement Showing or Disclosing the Statement During Examination

Answer 31

When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show or disclose its contents to an adverse party’s attorney

Question 32

FRE 613(b) Witness’s Prior Statement Extrinsic Evidence of a Prior Inconsistent Statement

Answer 32

Extrinsic evidence of a witness’s prior statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given the opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under rule 801(d)(2)

Question 33

Timing for FRE 613(b)

Answer 33

You can introduce the extrinsic evidence before or after the witness has had a chance to explain or deny. But if you do it after the witness testifies, judges prefer you do it while the witness is on the stand so the witness doesn’t become unavailable

Question 34

As Justice Requires in FRE 613(b)

Answer 34

This is when an attorney did not know about the prior inconsistent statement until after the witness left the stand and is no longer available to be recalled. When this occurs, extrinsic evidence can be admitted even if the witness has no opportunity to explain or deny it. This does not apply to opposing party statements under FRE 801(d)(2). But you still must follow 613(a)

Question 35

Common Law for Witness’s Prior Inconsistent Statement

Answer 35

Under the common law, the adverse party had to warn the witness about prior inconsistent statements by showing the witness her prior statement or alluding to it and extrinsic evidence of the prior inconsistent statement was not allowed until the witness had the opportunity to explain or deny the inconsistency.

Question 36

Miranda Warning and Impeachment

Answer 36

If the defendant is given a Miranda warning and makes a statement after that, you can use the statement for impeachment even if it’s not admissible as substantive evidence

Question 37

Subsequent Inconsistent Statements

Answer 37

If a witness makes a statement inconsistent with her trial testimony after she gets off the stand, the adverse party can use that statement to impeach her and the party doesn’t have to comply with FRE 613 because it doesn’t fall under the rule

Question 38

Limit on Rehabilitation

Answer 38

There are many ways to rehabilitate a witness. The only limitation to it is relevance, meaning the type of rehabilitation has to match the form of attack the opposing party used

Question 39

United States v. Dring 9^th Cir. 1991 Rehabilitation

Answer 39

The defendant wanted to rehabilitate himself but the court wouldn’t let him. The Ninth Circuit said defense-initiated attacks on the character of the defendant-witness do not trigger rehabilitation testimony under FRE 608(a). The only way the defense counsel could have rehabilitated the defendant is if the government cross-examined him and then the defense could have rehabilitated him on redirect. Further, the FRE only allows rehabilitation testimony when the opposing party directly attacks a witness’s truthfulness.

Question 40

Direct Attacks

Answer 40

Direct attacks include evidence of a witness’s bias for or against a party or evidence of a witness’s interest in the outcome of a case. It’s the opposing party actually saying the witness is lying.

Question 41

Indirect Attacks

Answer 41

Indirect attacks include opinion evidence, reputation evidence, and evidence of corruption, which require the jury to infer the witness is lying. It is propensity evidence because the witness lied before so she will lie again

Question 42

FRE 806 Attacking and Supporting a Declarant’s Credibility

Answer 42

When a hearsay statement – or a statement described in Rule 801(d)(2)(C), (D), or (E) – has been admitted in evidence, the declarant’s testimony may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination

Question 43

United States v. Saada 3^rd Cir. 2000

Answer 43

A judge was a witness in a case and died before trial. The defendants wanted to impeach him by introducing extrinsic evidence that the judge was removed from the bench and disbarred for unethical conduct. The court didn’t let it in because FRE 806 says unavailable declarants can only be impeached using methods allowed if the declarants were present. A party can’t use extrinsic evidence of an unavailable declarant’s prior bad acts to impeach him. But the defendant could have called a character witness to impeach the declarant through opinion or reputation evidence.