Chapter 8 - Impeachment of Witnesses

Question 1

What is Impeachment?

Answer 1

The process of attempting to weaken the perceived credibility of a witness

Question 2

When is impeachment most commonly done?

Answer 2

On Cross

Question 3

What is impeaching by extrinsic evidence?

Answer 3

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)

Question 4

How many General Modes of impeachment are there?

Answer 4

4

Question 5

General Mode of Impeachment #1: Prove Impaired General Competency

Answer 5

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”

Question 6

General Mode of Impeachment #2: Poor Character for Veracity

Answer 6

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)

Question 7

Texas Rules do not allow impeachment by ________________

Answer 7

dishonest non-conviction acts, even on cross-exam

Question 8

Poor Character for Veracity Example: Asking a Witness about: lying in grade-school, to a friend. Is it allowed?

Answer 8

In Federal: Allowed ON CROSS

Texas: NEVER ALLOWED

Question 9

General Mode of Impeachment #3: Conviction of a Crime as Impeachment (Federal Rule 609)

Answer 9

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])

Question 10

General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Time Limit on Using Convictions R. 609

Answer 10

• 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

Question 11

General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Procedure if the witness admits the conviction

Answer 11

No extrinsic evidence can be added to PROVE the conviction (honestly it just loses the dramatic effect)

Question 12

General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Procedure if the witness does NOT admit to the conviction

Answer 12

CAN use conviction record i.e. crime; date of conviction; sentence, but no details nor additional witnesses

Question 13

General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Two Further Restrictions on Using convictions

Answer 13

Can’t use if there is 1) a rehabilitation certificate (or expungement) or 2) a pardon based on finding of innocence

Question 14

General Mode of Impeachment #3: Conviction of a Crime as Impeachment - Juvenile Convictions for Similar Offense

Answer 14

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

Question 15

General Mode of Impeachment #4: General Bias

Answer 15

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.

Question 16

Specific Mode of Impeachment on Cross #1 (i.e. in this specific case): Impaired Specific Competency

Answer 16

EXAMPLES:
DRUNK at the time
NIGHT-TIME
LOOKING THE OTHER WAY

EXTRINSIC EVIDENCE IS ALLOWED

Question 17

Texas Rule on specific instances of dishonesty

Answer 17

NOT ALLOWED

Question 18

Specific Mode of Impeachment on Cross #2 (i.e. in this specific case): Prior Inconsistent Statement of the Witness

Answer 18

• 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

Question 19

Specific Mode of Impeachment on Cross #2 (i.e. in this specific case): Prior Inconsistent Statement of the Witness - Can extrinsic evidence be used?

Answer 19

YES - document or impeaching witness

Question 20

Specific Mode of Impeachment on Cross #2 (i.e. in this specific case): Prior Inconsistent Statement of the Witness: Texas Constraints

Answer 20

1. Must first inform witness about circumstances of his prior statement - no ambush
2. If witness unequivocally admits the prior statement; no extrinsic evidence allowed

Question 21

Specific Mode of Impeachment on Cross #3 (i.e. in this specific case): Specific Bias

Answer 21

GOOD VERACITY IN GENERAL, BUT NOT HERE:

EXAMPLES:
IN LOVE WITH THE PLAINTIFF
HATES THE DEFENDANT
SIMILARLY SITUATED NEIGHBORS – NOISE, ETC.

Question 22

Specific Mode of Impeachment on Cross #3 (i.e. in this specific case): Specific Bias - is extrinsic evidence allowed?

Answer 22

YES

Question 23

Specific Mode of Impeachment on Cross #3 (i.e. in this specific case): Specific Bias - Texas Constraints

Answer 23

1. SIMILAR TO NO-AMBUSH REQMTS. FOR PRIOR INCONSISTENT STMT. (In Federal court, you just need to give the witness a chance to correct themselves)
2. MUST FIRST TELL WITNESS THE CIRCUMSTANCES THAT TEND TO SHOW BIAS/PREJUDICE
3. NO EXTRINSIC EV. IF WIT. CONCEDES BIAS/PREJ

Question 24

Who can be impeached? (5)

Answer 24

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

Question 25

Who CANT be impeached?

Answer 25

A witness who has not even taken the oath yet. They have not bee able to competently testify

Question 26

R 610 - Impeaching a witness on grounds of religious beliefs

Answer 26

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”