Character Evidence to Impeach Witnesses

Question 1

What kinds of impeachment evidence can be brought on direct examination (Rule 608)?

Answer 1

• On direct examination, reputation and/or opinion only;
• Can NOT bring up prior bad acts on direct examination

Question 2

How can a party introduce prior bad act evidence to impeach a witness?

Answer 2

• Must be in the form of a question during cross-examination

Question 3

What rules must a party follow when they are impeaching a witness for prior bad acts?

Answer 3

• The bad acts must be probative of truthfulness.
• Questions must be asked in good faith.
• The bad acts cannot be too remote in time. The judge will employ the 403 test.
• Only questions of fact are allowed; not rumors.

Question 4

Can extrinsic evidence be introduced to prove that the prior bad act occurred?

Answer 4

• No. Even if the witness lies about the specific instance, the collateral matter rule applies; extrinsic evidence is INADMISSIBLE to prove the bad act. The examiner is bound by the witness’s answer.

Question 5

Must the witness have been convicted of a crime to bring up the prior bad act for impeachment purposes?

Answer 5

• No, conviction is NOT required to impeach the witness

Question 6

What are some examples of prior bad acts that may be admissible to impeach a witness?

Answer 6

• filing a false tax return;
• putting incorrect information on an employment application;
• using a false name;
• falsifying a resume or academic record; and
• lying about age, marital status, employment.

Question 7

What are some examples of prior bad acts that are inadmissible to impeach a witness?

Answer 7

• Bad acts that have nothing to do with truthfulness
  o use of drugs or alcohol;
  o failure to pay debts; and
  o gambling and prostitution.