Class 7: Revealing Untruthful Character on Cross and Using Criminal Convictions to Impeach - Jan. 30

Question 1

What is bias? (Q)

Answer 1

Bias is the existence of a relationship between a witness and a party that could influence the witness’s testimony either for or against that party.

Question 2

Is extrinsic evidence of a witness’s improper bias or interest subject to the collateral evidence bar? (Q)

Answer 2

No. Extrinsic evidence of a witness’s improper bias or interest is not subject to the collateral evidence bar because it is not collateral.

Question 3

The defendant was charged with murder in federal court. The prosecutor called the alleged accomplice, who was not charged, to testify against the defendant. On cross-examination, the defense attorney asked the accomplice whether it was true that the prosecutor agreed not to charge him, but instead agreed to place him in a witness protection program in return for his testimony against the defendant. The prosecutor objected, arguing that no rule of evidence allowed for impeachment of a witness on the issue of bias.

How should the judge rule on the objection? (Q)

Answer 3

The court should overrule the objection. The U.S. Supreme Court has held that bias is a permissible means of impeachment. Furthermore, the Court has noted that bias is almost always relevant.

Here, if the accomplice is receiving something of value from the government in return for his testimony, the accomplice is more likely to slant his testimony in favor of the government. This bias is relevant to the accomplice testimony. Cross-examination on the issue of the accomplice agreement with the prosecutor is permissible. Thus, the judge should overrule the objection.

Question 4

A plaintiff’s arm was badly injured by a rotating dryer drum at a car wash. The plaintiff sued the manufacturer of the drum for product liability. At trial, the manufacturer asked the plaintiff, “Isn’t it true that three years ago you were convicted of felony burglary and served two years in prison?” The plaintiff’s attorney objected, arguing that because the worker was the defendant in the burglary case, the court was required to balance the probative value of any impeachment evidence against the prejudicial effect to the defendant. The attorney argued the probative value of the evidence of the prior criminal conviction did not outweigh its prejudicial effect and must be excluded.

How should the court rule on the objection? (Q)

Answer 4

The court should overrule the objection because the witness is a criminal defendant in the current action. A court in a civil case must admit a witness’s felony conviction subject to the Rule 403 prejudice v. probity test. In criminal cases where the witness being impeached is the defendant, courts balance the probative value of any impeachment evidence against the prejudicial effect to a defendant.

Here, a civil plaintiff is being impeached with a prior felony conviction. Although he was the criminal defendant in the prior case, he is now a plaintiff. His prior conviction is not substantially more prejudicial than probative under the Rule 403 prejudice v. probity test. This is a proper impeachment with a prior criminal conviction. Thus, the court should overrule the objection.

Question 5

Can evidence of a witnesses character be admitted? (Merritt)

Answer 5

Yes under FRE 607, 608, and 609.

(FRE 404(a)(3))

Question 6

Is evidence of a person’s character or character trait admissible to prove that on a particular occasion the person acted in accordance with the character or trait? (Merritt)

Answer 6

No. This is called propensity evidence.

(FRE 404(a)(1))

Question 7

When a witness takes an oath to testify truthfully, does the witness open the door to admission of evidence about his character for truthfulness? (Q)

Answer 7

Yes. When a witness takes an oath to testify truthfully, the witness opens the door to admission of evidence about his character for truthfulness.

Question 8

Is the introduction of evidence of prior inconsistent conduct a permissible method of impeachment? (Q)

Answer 8

No. The introduction of evidence of prior inconsistent conduct is not a permissible method of impeachment. For example, it is not permissible to introduce evidence that a witness never wore a seatbelt in the past to prove that the witness did not wear a seatbelt in the present case.

Question 9

May a party inquire about specific instances of conduct, or prior bad acts, related to a witness’s character for truthfulness? (Q)

Answer 9

Yes. A party may inquire about specific instances of conduct, or prior bad acts, related to a witness’s character for truthfulness, if the party has a plausible, good faith basis for doing so. However, the inquiring party must stop the inquiry at the witness’s answer and may not use extrinsic evidence to prove that the conduct actually occurred.

For example, a party can ask a witness, “Isn’t it true that you lied to your neighbor about hitting her parked car?” But if the witness answers “no,” then the inquiry must stop.

(FRE 608(b)(1))

Question 10

If evidence of a specific instance of conduct related to a witness’s character for truthfulness is admissible for impeachment purposes, will it be admitted regardless of its prejudicial effect? (Q)

Answer 10

No. If evidence of a specific instance of conduct related to a witness’s character for truthfulness is admissible for impeachment purposes, the evidence will not be admitted if its probative value is substantially outweighed by its prejudicial effect.

Question 11

Under what circumstances can a party offer extrinsic evidence of specific instances of a witness’s untruthful conduct in order to attack or support the witness’s character? (Q)

Answer 11

A party can offer extrinsic evidence of specific instances of a witness’s untruthful conduct in order to attack or support the witness’s character only if the untruthful conduct resulted in a criminal conviction.

(FRE 608(b)(1))

Question 12

When can FRE 609 be used to attack a witness? (Merritt)

Answer 12

To suggest the witness has an untruthful character.

(FRE 609)

Question 13

What is the severity requirement for evidence of a prior conviction to be used to attack a witness? (Merritt)

Answer 13

A crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year.

(FRE 609(a)(1))

Question 14

Is the standard of admissibility for a prior felony conviction the same for a criminal defendant and for a non-defendant witness? (Q)

Answer 14

No. The standard of admissibility for a prior felony conviction of a criminal defendant is not the same as for a non-defendant witness, it is much higher.

Question 15

When is FRE 609 subject to FRE 403? (Merritt)

Answer 15

In a civil case or in a criminal case in which the witness is not a defendant.

(FRE 609(a)(1)(A))

Question 16

When is FRE 609 not subject to FRE 403? (Merritt)

Answer 16

In a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant. Additionally FRE 609 is not subject to FRE 403 when the prior crime involved a dishonest act or false statement

(FRE 609(a)(1)(B)); (FRE 609(a)(2))

Question 17

Is the admissibility of a criminal defendant’s otherwise admissible prior felony conviction subject to a prejudice versus probity analysis? (Q)

Answer 17

Yes. The admissibility of a criminal defendant’s otherwise admissible prior felony conviction is subject to a prejudice versus probity analysis unless the conviction required proveing the element of a dishonest act or false statement.

(FRE 609(a))

Question 18

For impeachment purposes, may a party cross-examine a witness regarding a prior conviction? (Q)

Answer 18

Yes. For impeachment purposes, a party may cross-examine a witness regarding a prior conviction if the conviction was for a felony or a crime involving a dishonest act or false statement.

(FRE 609(a)(2))

Question 19

Is there any time constraint on the admissibility of a witness’s prior conviction? (Q)

Answer 19

Yes. There is a time constraint for admissibility of a witness’s prior conviction. If more than ten years have passed since the conviction or the witness’s release from confinement, whichever is later, the bar for admissibility rises, regardless of whether the witness is a criminal defendant.

(609(b)(1+2))

Question 20

Is a prior conviction that was pardoned or annulled admissible? (Q)

Answer 20

No. A prior conviction that was pardoned or annulled is not admissible.

(FRE 609(c)(1+2))

Question 21

Must a court admit a witness’s prior felony criminal conviction to impeach a witness’s character for truthfulness? (Q)

Answer 21

Yes. A court must admit a witness’s prior felony criminal conviction to impeach the witness’s character for truthfulness, subject only to the Rule 403 prejudice v. probity test.

(FRE 609(a)(1)(A+B))

Question 22

Theresa is on trial for aggravated assault. She has testified in her defense. She has three prior convictions: one for aggravated assault (a felony) from six years ago, one for fraudulently filing a false police report (a misdemeanor) three years ago, and one for selling narcotics (a felony) one year ago. The prosecutor seeks to admit all three prior convictions as evidence in order to impeach her through proof of character for dishonesty. Which convictions (if any) are admissible? (Merritt)

Answer 22

The aggravated assault is almost certainly inadmissible; filing a false police report is certainly admissible, and the selling of narcotics will be admissible if the probative value of the evidence in proving the defendant’s propensity for dishonesty outweighs its prejudicial effect on the defendant.

(Ch 20 Quiz)

Question 23

Is evidence of felonies which are not falsities allowed? (Merritt)

Answer 23

Yes if the probative value of the evidence in proving the defendant’s propensity for dishonesty outweighs its unfair prejudice to the defendant.

(FRE 609) (Ch 20 Quiz)

Question 24

If evidence of a prior conviction is admissible for impeachment purposes, are the conviction’s underlying facts admissible as specific instances of conduct? (Q)

Answer 24

No. This is because the rule allowing evidence of prior bad acts applies only to conduct that did not result in conviction.

Question 25

Can character witnesses testify about specific acts that the defendant has done? (Merritt)

Answer 25

No.

(FRE 608(b))

Question 26

Must evidence of a criminal conviction be admitted in which the witness is a defendant? (Merritt)

Answer 26

No. It will only be admitted if the probative value of the evidence outweighs its prejudicial effect to the defendant.

(FRE 609(a)(1)(B))

Question 27

If a person commits a crime of dishonesty, even if it is a misdemeanor, must the court admit evidence of that conviction? (Merritt)

Answer 27

Yes. This is not subject to an FRE 403 balancing test.

(FRE 609(a)(2))

Question 28

When are juvenile adjudications admissible? (Merritt)

Answer 28

Juvenile adjudications are generally not admissible unless, in the case of a witness who is not a criminal defendant, admission of the juvenile conviction is “necessary to fairly determine guilt or innocence.”

(FRE 609(d))

Question 29

When must evidence of a crime involving a dishonest act or false statement be admitted in determining a witnesses’s character for truthfulness ? (Q)

Answer 29

Evidence of a crime involving a dishonest act or false statement of a witness must always be admitted to determine a witness’s character for truthfulness, regardless of whether the witness is the defendant.

(FRE 609(a)(2))

Question 30

If a prior conviction is admissible, what evidence about the prior conviction is admissible? (Q)

Answer 30

If admissible, evidence of the prior conviction is limited to the person’s name, date of conviction, and sentence of punishment for the conviction.

Question 31

After 10 years, when is evidence of a prior conviction admissible? (Q)

Answer 31

After ten years, evidence of a prior conviction is admissible only if:

(1) Its probative value substantially outweighs its prejudicial effect, and

(2) The party seeking to introduce the older conviction must give the adverse party reasonable written notice of the intent to use the conviction so the adverse party has adequate time to contest its admission.

(609(b)(1+2))

Question 32

What does FRE 404 govern? (LII)

Answer 32

FRE 404 covers character evidence; other crimes, wrongs, or acts.

Question 33

What does FRE 609 govern? (LII)

Answer 33

FRE 609 governs impeachment by evidence of a criminal conviction.

Question 34

What does FRE 608 cover? (LII)

Answer 34

FRE 608 governs a witness’s character for truthfulness or untruthfulness. (Impeachment based on witness’s character or conduct)

Question 35

What happens if a witness denies or has forgotten a prior conviction? (Q)

Answer 35

If the witness denies or has forgotten the conviction, the record of conviction may be introduced into evidence. If admissible, evidence of the prior conviction is limited to the person’s name, date of conviction, and sentence of punishment for the conviction.

Question 36

What does FRE 609(a) govern? (LII)

Answer 36

FRE 609(a) governs attacking a witness’s character for truthfulness by evidence of a criminal conviction.

Question 37

What does FRE 609(b) govern? (LII)

Answer 37

FRE 609(b) governs the limit on using the evidence of a prior criminal conviction after 10 years.

Question 38

Under what circumstances must a court admit a witness’s prior misdemeanor criminal conviction to impeach a witness’s character for truthfulness? (Q)

Answer 38

A court must admit a witness’s prior misdemeanor criminal conviction to impeach the witness’s character for truthfulness if:

(1) the conviction required the prosecutor to prove (or the witness to admit) a dishonest act or false statement (FRE 609(a)(2)) and

(2) the witness’s conviction or release from confinement (whichever is later) occurred less than 10 years ago. (FRE 609(b))