CA Credibility and Impeachment of Witnesses

Question 1

Bolstering

Answer 1

Fed: not allowed unless first attacked

CA: same rule under civil cases, but in criminal cases, bolstering is ok because Prop 8 makes it relevant even before credibility has been attacked

Question 2

Prior Inconsistent Statement by In-Court Witness

Answer 2

Fed: if prior inconsistent statement of witness is now testifying, it’s not hearsay if offered ONLY TO IMPEACH.

If prior inconsistent statement now testifying at trial was made UNDER OATH, it’s within one of the EXCLUSIONS to the definition of hearsay, thus making it non-hearsay and under fed law would be admissible for all purposes as nonhearsay.

NO SUCH THING AS EXCLUSIONS TO THE DEFINITION OF HEARSAY IN CALIFORNIA: there are only exceptions, not exclusions.

In CA: a prior inconsistent statement of witness now testifying at trial, if offered to prove the truth of the matter asserted, it is hearsay. But CA has a very broad exception to the hearsay rule for prior inconsistent statements. It covers ALL PRIOR INCONSISTENT STATEMENTS, even if not made under oath.

Question 3

Impeachment with Criminal Convictions

Answer 3

Fed: distinction between nature of felonies - if it involves lying, it’s admissible to impeach the witness and there’s no discretion to balance for unfair prejudice as long as it’s within the last 10 years. But other convictions for felonies might be admissible to impeach the witness though it’s subject to the exclusion for balancing unfair prejudice against probative value. If the impeached witness is D, the balancing test is skewed against prosecutor (probative value must outweigh unfair prejudice) but any other witness gets usual 403 balancing (admissible unless unfair prejudice substantially outweighs probative value).

CA: Any felony involving “moral turpitude” is admissible to impeach a witness subject to balancing unfair prejudice against probative value under evidence code 352. If not a felony involving moral turpitude, it’s inadmissible. Irrelevant if not involving moral turpitude (thus not a Prop 8 issue).

Moral Turpitude = any crime involving lying, violence, theft, extreme recklessness, or sexual misconduct. A crime of negligence or unintentional acts is NOT moral turpitude and thus IRRELEVANT to impeach.

Question 4

Impeachment with Prior Misdemeanor Convictions

Answer 4

Fed: convictions for misdemeanors involving dishonesty or false statement are admissible. Court has no discretion to exclude these. Convictions for misdemeanors not involving dishonesty or lying are inadmissible.

CA criminal cases: misdemeanors involving moral turpitude are admissible (because of Prop 8 relevance)

Ca civil cases: inadmissible

Timing/Deadlines

Fed: if a conviction qualifies but is more than 10 years old since date of conviction or release from prison (whichever is later) it’s inadmissible unless the court determines that the conviction’s probative value substantially outweighs its prejudicial effect (tough balancing test)

CA: doesn’t have specific rule for old convictions, but CA courts always have discretion to exclude a conviction for impeachment under CEC 352 and this permits consideration of any factor INCLUDING AGE OF CONVICTION

Question 5

Impeachment with Bad Acts

Answer 5

Under the Fed rules, a witness’ bad acts involving dishonesty can be admissible even if those acts did not lead to a conviction. The impeachment must be done on cross X only, extrinsic evidence of bad act is inadmissible, and evidence is subject to 403 balancing.

CA: similar to misdemeanor convictions in that:

1) impeachment with bad acts that did not lead to a conviction is not permitted by the CEC. But prop 8 makes acts of MORAL TURPITUDE admissible for impeachment in criminal cases. When admissible, both cross X and extrinsic evidence are permitted, subject to 352 balancing

2) because Prop 8 only applies in crim cases, impeachment with bad acts is NOT PERMITTED in CIVIL cases

Question 6

Rehabilitation with Prior Consistent Statement

Answer 6

Fed rules: a party can rehab an impeached witness by introducing the witness’ prior consistent statement if:
1) the testimony of the witness was attacked by a charge that the witness is lying or exaggerating because of improper motive so long as the prior consistent statement was made BEFORE the motive to lie arose, or
2) the witness was impeached on some other ground and the prior consistent statement tends to rehab them

CA rule: same with respect to category 1 above (improper motive), but is more specific with respect to category 2. A prior consistent statement is admissible if the witness was impeached with a prior inconsistent statement and the prior consistent statement was made before the prior inconsistent statement.