Chapter 8 - Impeachment of Witnesses Flashcards
What is Impeachment?
The process of attempting to weaken the perceived credibility of a witness
When is impeachment most commonly done?
On Cross
What is impeaching by extrinsic evidence?
impeaching other than by questioning the target witness EXAMPLES: calling a witness to impeach the target witness or introducing a document to impeach a witness)
How many General Modes of impeachment are there?
4
General Mode of Impeachment #1: Prove Impaired General Competency
This is where the witness is unable to observe or remember things in general, its not limited to just this case. It could be “oh medical records say that you literally have amnesia, gtfo Dory”
General Mode of Impeachment #2: Poor Character for Veracity
This is where bad opinion or reputation for truthfulness is used - extrinsic witness testimony is allowed, but no specifics.
Prior dishonest non-conviction acts, established on cross (so extrinsic evidence is not allowed)
Texas Rules do not allow impeachment by ________________
dishonest non-conviction acts, even on cross-exam
Poor Character for Veracity Example: Asking a Witness about: lying in grade-school, to a friend. Is it allowed?
In Federal: Allowed ON CROSS
Texas: NEVER ALLOWED
General Mode of Impeachment #3: Conviction of a Crime as Impeachment (Federal Rule 609)
This is where you can bring in ANY crime involving dishonesty (even misdemeanors).
There is no weighing of probative value or prejudice required (UNLESS it is a non-dishonest felony [i.e punishable by death or for more than one year])
General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Time Limit on Using Convictions R. 609
- Usually a 10 year limit for either non-dishonesty felonies or dishonesty misdemeanors
- Runs from date of release (if any)
- Can be expanded if highly probative
General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Procedure if the witness admits the conviction
No extrinsic evidence can be added to PROVE the conviction (honestly it just loses the dramatic effect)
General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Procedure if the witness does NOT admit to the conviction
CAN use conviction record i.e. crime; date of conviction; sentence, but no details nor additional witnesses
General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Two Further Restrictions on Using convictions
Can’t use if there is 1) a rehabilitation certificate (or expungement) or 2) a pardon based on finding of innocence
General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Juvenile Convictions for Similar Offense
If the conviction has not been expunged, then a witness can be asked about a juvenile conviction
Can also be asked if the conviction is on appeal, but the appeal will be noted
General Mode of Impeachment #4: General Bias
e. g. Nothing personal but I hate all people with glasses
e. g. Nothing personal but I love people with glasses :3
IF the witness denies it, you can go extrinsic to call a witness to testify that witness is biased af.
Specific Mode of Impeachment on Cross #1 (i.e. in this specific case): Impaired Specific Competency
EXAMPLES:
DRUNK at the time
NIGHT-TIME
LOOKING THE OTHER WAY
EXTRINSIC EVIDENCE IS ALLOWED
Texas Rule on specific instances of dishonesty
NOT ALLOWED
Specific Mode of Impeachment on Cross #2 (i.e. in this specific case): Prior Inconsistent Statement of the Witness
- Must afford target witness a chance during trial to explain the inconsistency
- THEREFORE, it can’t be used if the witness has been excused and is beyond subpoena reach
Specific Mode of Impeachment on Cross #2 (i.e. in this specific case): Prior Inconsistent Statement of the Witness - Can extrinsic evidence be used?
YES - document or impeaching witness
Specific Mode of Impeachment on Cross #2 (i.e. in this specific case): Prior Inconsistent Statement of the Witness: Texas Constraints
- Must first inform witness about circumstances of his prior statement - no ambush
- If witness unequivocally admits the prior statement; no extrinsic evidence allowed
Specific Mode of Impeachment on Cross #3 (i.e. in this specific case): Specific Bias
GOOD VERACITY IN GENERAL, BUT NOT HERE:
EXAMPLES:
IN LOVE WITH THE PLAINTIFF
HATES THE DEFENDANT
SIMILARLY SITUATED NEIGHBORS – NOISE, ETC.
Specific Mode of Impeachment on Cross #3 (i.e. in this specific case): Specific Bias - is extrinsic evidence allowed?
YES
Specific Mode of Impeachment on Cross #3 (i.e. in this specific case): Specific Bias - Texas Constraints
- SIMILAR TO NO-AMBUSH REQMTS. FOR PRIOR INCONSISTENT STMT. (In Federal court, you just need to give the witness a chance to correct themselves)
- MUST FIRST TELL WITNESS THE CIRCUMSTANCES THAT TEND TO SHOW BIAS/PREJUDICE
- NO EXTRINSIC EV. IF WIT. CONCEDES BIAS/PREJ
Who can be impeached? (5)
ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED
ON CROSS, THE FEDERAL SCOPE-OF-THE-DIRECT RULE DOES NOT BLOCK IMPEACHMENT QUESTIONS
CAN IMPEACH YOUR OWN WITNESS, WITHIN LIMITS [NO GAMES]
CAN IMPEACH AN IMPEACHING WITNESS
A NON-TESTIFYING OPPOSING PARTY GENERALLY CANNOT BE IMPEACHED
-BUT A HEARSAY DECLARANT CAN BE IMPEACHED
Who CANT be impeached?
A witness who has not even taken the oath yet. They have not bee able to competently testify
R 610 - Impeaching a witness on grounds of religious beliefs
You CANT impeach a witness on the ground of religious beliefs and the absence of religious beliefs. BUT that doesn’t mean that religious relationships are off the table. Can use it to show bias. Cant get into the tenants of the religion but just show bias. “This witness always condemned Muslims”
