Credibility Flashcards
Impeaching a witness FRE 607
FRE 607: Any party, including the party that called the witness, may attack the
witness’s credibility
● Impeachment – attacking a witness’s credibility
● Cannot call a witness solely for the purpose of impeaching them in order to get in
evidence that would otherwise be admissible
United States v. Morlang
Rule of Law
A party may not call an adverse witness solely for the purpose of impeaching the witness under Federal Rule of Evidence 607.
Facts
Theodore Morlang (defendant) was charged with conspiracy to bribe the director of the Federal Housing Authority. The prosecution called Fred Wilmoth as a witness, knowing that his testimony tended to exonerate Morlang. In particular, Wilmoth denied implicating Morlang in a conversation with Raymond Crist. To impeach Wilmoth’s testimony, the prosecution then called Crist as a witness. Crist testified, over Morlang’s objection, that Wilmoth did in fact implicate Morlang in a conversation that they had had. The district court admitted Crist’s testimony for the purpose of impeaching Wilmoth. Morlang was convicted. Morlang appealed, arguing that Crist’s testimony about Wilmoth’s statement should have been excluded.
Issue
May a party call an adverse witness solely for the purpose of impeaching the witness under Federal Rule of Evidence 607?
Holding and Reasoning (O’Connor, J.)
No. Although Federal Rule of Evidence (FRE) 607 provides that a party may impeach its own witness, a party may not call a witness whose testimony the party knows to be adverse, solely for the purpose of impeaching the witness. Permitting this practice would effectively allow parties to use FRE 607 as a subterfuge to present otherwise inadmissible evidence. FRE 607 exists to allow a party to impeach a witness who unexpectedly becomes adverse or unhelpful. In this case, the district court abused its discretion by allowing the prosecution to call Wilmoth as a witness. The prosecution knew that Wilmoth’s testimony would be adverse to its case. The prosecution nevertheless called Wilmoth as a witness, eliciting a statement that the prosecution would then impeach through Crist’s testimony. Crist’s testimony about Wilmoth’s statement implicating Morlang would otherwise have been inadmissible hearsay. In sum, the prosecution improperly called and impeached its own witness to present an otherwise inadmissible statement before the jury. As a result, Morlang’s conviction is vacated, and the case is remanded for a new trial.
Can’t use 607 to admit otherwise hearsay
Credibility Methods (3)
There are three common methods:
● (1) Impeachment using character evidence
● (2) Impeachment by prior inconsistent statement
● (3) Impeachment by showing bias
Impeachment by using Character Evidence
● Character Evidence
○ Two ways to use character evidence:
■ (1) Substantive character evidence – used to prove (or disprove) a fact
at issue in the case
■ (2) Character evidence used for impeachment – used to attack (or
rehabilitate) the credibility of a WITNESS
● Only relevant character trait is TRUTHFULNESS
Impeaching a Witness’ Character for Honesty FRE 608
FRE 608:
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an
opinion about that character. But evidence of truthful character is admissible only after the witness’s character for
truthfulness has been attacked.
(b) Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances
of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or
untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified
● (a) can only show once someone has a dishonest character, cannot bolster just because!
● (b) opposing party can inquire about specific acts about truthfulness about the witness prior own acts of
honesty/dishonesty or ask about specific acts of honesty or dishonesty of another witness who has been called if the
testifying witness brings up their character
○ Have to have good faith evidence to demonstrate where the specific acts questions came from
Whitmore
Soto testimony links defendant to the gun
Defendant says soto fabricated the story and main argument was he needed 3 witnesses to support the claim (reporter (wrote articles saying soto was a bad cop, did not let it in because he was not personally associated with him it was too remote), criminal defense attorney (was going to testify to soto’s reputation in legal court community, they excluded it for bias/prejudice under 403 and has testified against his clients multiple times), former neighbor (was going to testify to wrongful arrest, did not allow in because too remote because he does not live in the neighborhood anymore and relevance and said it was minimally probative so prejudiced outweighed under 403)
Preserve for record is offer of proof***** for appellate court
Impeachment by Prior Convictions ; FRE 609
FRE 609(a)
Evidence of a prior conviction can be used to impeach if:
1. Prior conviction is a felony
A. When the witness is NOT the defendant: admitted unless the danger of unfair prejudice substantially outweighs the probative value (regular 403 balancing) OR
B. When the witness IS the defendant: admitted if the probative value outweighs the prejudicial effect
○ Dishonest Act
■ Must be allowed in - no 403 test required
FRE 609(b)
● If 10+ year crime, then admitted only if the probative value substantially outweighs the prejudicial
effect, also: the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
United States v. Sanders (prior conviction)
Rule of Law
When a defendant takes the stand, the prosecution may inquire about his prior felony convictions to impeach his character for truthfulness if the probative value of the convictions outweighs their prejudicial effect.
Facts
Sanders (defendant), in prison at the time, was charged with assault with a dangerous weapon and possession of a contraband shank. Sanders took the stand and claimed self-defense on the assault charge. At trial, the prosecution sought to introduce into evidence Sanders’s previous convictions for assault and possession of a contraband shank. The trial court allowed the prosecution to question Sanders about the prior convictions under Rule 609. The trial also allowed the questioning under Rule 404(b), claiming that the previous convictions were evidence of Sanders’s intent in the current case. Sanders was convicted on both the assault and possession charges. He appealed.
Issue
Does the probative value of a defendant’s prior convictions of assault and possession of a contraband shank outweigh the prejudicial effect against him in a case involving a different assault and a different possession of contraband?
Holding and Reasoning (Phillips, J.)
No. Although the prosecution may inquire about a defendant-witness’s prior felony convictions to impeach his character for truthfulness, such prior convictions are generally inadmissible in cases where the current offense is the same or similar to the prior conviction. This is because the probative value of the prior convictions is generally outweighed by the high chance for prejudicial effect. A jury hearing that a defendant was previously convicted for the same crime he is currently charged with would be more likely to draw an impermissible inference that he must have committed the present crime because he had done it before. This is especially the case where the prior convictions are for crimes not directly related to the truthfulness of the defendant because, as the convictions are only admissible to impeach the defendant’s truthfulness, the nature of these crimes reduces the probative value of the convictions. In this case, the probative value of Sanders’s prior convictions is relatively low because assault and possession of a shank do not bear heavily on Sanders’s character for truthfulness. On the other hand, the prejudicial effect of convictions of assault and possession of a contraband shank is very high in a case involving a different assault and a different possession of contraband. As a result, the trial court should not have admitted evidence of Sanders’s prior convictions under Rule 609. In addition, the trial court also erred in admitting the convictions under Rule 404(b). Even though Sanders is claiming self-defense, the fact that he had previously assaulted another man has no bearing on his intent in the assault of the man in the current case. They are two different incidents and intent in one cannot be deemed evidential of intent in the other. As a result, under 404(b), all that the prior convictions show is Sanders’s propensity to commit assault crimes, and this is not a permissible use of evidence. However, although the admission of the convictions was error, the admission of the contraband conviction was harmless error. As a result, the trial court is affirmed as to the contraband conviction, but reversed and remanded as to the assault conviction.
United States v. Pruett (609 a2 dishonest act)
Rule of Law
Larceny is not a crime of dishonesty admissible against a witness under Federal Rule of Evidence 609(a)(2).
Facts
Jeffrey Pruett and his two companies (defendants) were charged with violating the Clean Water Act. The prosecution called Columbus Smith as a witness. The defendants sought to introduce evidence that Smith had been previously convicted of larceny against the United States pursuant to 18 U.S.C. § 641. The defendants argued that the prior conviction was admissible against Smith under Federal Rule of Evidence 609(a)(2). The district court excluded the evidence of Smith’s prior larceny conviction. The defendants were convicted, and they appealed.
Issue
Is larceny a crime of dishonesty admissible against a witness under Federal Rule of Evidence 609(a)(2)?
Holding and Reasoning (Per curiam)
No. Under FRE 609(a)(2), a party may introduce evidence that a witness has committed a crime involving a dishonest act or false statement. In determining what constitutes an admissible crime, courts should look to the statutory elements of the crime or any evidence introduced by the proponent indicating that the convicting court found that the witness engaged in an act of dishonesty. Examples of crimes of dishonesty include perjury, fraud, embezzlement, and false pretense. However, larceny is not a crime of dishonesty under FRE 609(a)(2). In this case, the district court did not abuse its discretion by excluding evidence of Smith’s prior larceny conviction. There is nothing in 18 U.S.C. § 641 or the jury instructions in Smith’s larceny case that required a finding that Smith engaged in an act of dishonesty. As a result, the evidence of Smith’s prior larceny conviction is not admissible under FRE 609(a)(2). Accordingly, the defendants’ convictions are affirmed.
Factors to consider in admitting prior convictions under 609 (a)
Impeachment value of prior crime
Remoteness of crime
Degree in which credibility of witness is at issue
Importance of defendant’s testimony
Similarity of charge and prior conviction
609 tail end: effect of a pardon, juvenile adjudications, pendency on appeal
**609c: effect of a pardon **
Conviction and subsequent pardon based on the defendant’s rehabilitation + no subsequent felonies = conviction cannot be used to impeach
**609(d): Juvenile Adjudications **
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
**609(e)- Pendency on Appeal **
Rule 613: Impeaching a witness with a prior inconsistent statement
Extrinsic evidence of prior inconsistent statement allowed ONLY if statement’s content is
MATERIAL to the case
● No extrinsic evidence of collateral matters (immaterial information)
● Ex. Cross witness, given opportunity to explain, then offer depo transcript (extrinsic evidence)
OR offer testimony from other witness, then cross witness
United States v. Young
Rule of Law
Federal Rule of Evidence 613(b) allows admission of a witness’s prior inconsistent statement if the witness has an opportunity to explain or deny it at any point during trial.
Facts
The government (plaintiff) prosecuted Keith Young and Edelmiro Tamez (defendants) for narcotics distribution. A government witness, John Drake, testified that Young and Tamez supplied Drake with drugs in the Tri-Cities area. The defense wanted the government to give another witness, David Delfs, use immunity so that Delfs could testify and undermine Drake’s story without facing prosecution on the basis of that testimony. Specifically, Delfs claimed that Drake intimated that he was going to falsely accuse someone, possibly Young, of being Drake’s Tri-Cities supplier while at someone named “Flash” Adams’s house. On cross-examination, Drake testified that he did not go to Flash Adams’s house during the time Delfs said the conversation happened. The government refused to grant Delfs immunity, so he did not testify about what Drake said. After the court convicted both Young and Tamez, they appealed, arguing the court should have compelled the prosecution to grant Delfs use immunity. The government countered that Delfs’s testimony would have been inadmissible anyway because Drake had no opportunity to explain his prior inconsistent statement beforehand. After finding that the trial court should have compelled granting Delfs use immunity, the appellate court considered whether the federal rules of evidence would have barred his testimony anyway.
Issue
Does Federal Rule of Evidence 613(b) allow admission of a witness’s prior inconsistent statement if the witness has an opportunity to explain or deny it at any point during trial?
Holding and Reasoning (Tashima, J.)
Yes. Federal Rule of Evidence 613(b) allows admission of a witness’s prior inconsistent statement if the witness has an opportunity to explain or deny it at any point during trial. This court has expressly recognized in other cases that that means an opportunity at any time during trial—not necessarily before the prior inconsistent statement’s admission. Here, on cross-examination Drake denied going to Flash Adams’s house during the time Delfs said Drake made the inconsistent statement. Defense counsel arguably could have asked Drake directly at that time if he ever said he was going to falsely accuse someone of being his Tri-Cities supplier. Even if Drake had flatly denied making the statement, the court could have admitted Delfs’s testimony, then allowed the government to recall Drake to give him another opportunity to explain it. That means Rule 613(b) would not have barred Delfs’s testimony. Therefore, the trial court should have compelled the prosecution to grant Delfs use immunity and admitted his testimony about Drake’s inconsistent statement. The court accordingly reverses and remands for further proceedings.
Impeachment by Showing Bias
● Bias – a person’s tendency to be prejudiced either for or against someone
● Extrinsic evidence is ALWAYS admissible
● There is not a bias rule under the FRE, but allowed under FRE 607 and the Confrontation
Clause when it comes to impeachment for bias
Examples of bias:
Love
Hate
Fear
Financial interest
Employment
Membership in an organization
Extrinsic evidence? Permitted to impeach for bias, bias is always material
United States v. Abel
Rule of Law
Proof of a witness’s bias is almost always relevant and evidence of such bias is admissible unless its unfairly prejudicial effect outweighs its probative value.
Facts
Abel (defendant) was charged with a bank robbery. One of his cohorts in the robbery, Ehle, pled guilty to the robbery and agreed to testify against Abel. At trial, Abel sought to rebut Ehle’s testimony by introducing the testimony of Mills who stated that after the robbery, Ehle admitted to Mills that Ehle intended to testify falsely against Abel to get a reduced sentence. In response to this, the prosecution sought to call Ehle back to the stand to testify that he, Able, and Mills were all part of a secret prison gang that required its members to deny its existence and commit perjury for each other. Abel objected to Ehle’s testimony about the gang. The district court admitted the testimony and convicted Abel. The United States Court of Appeals for the Ninth Circuit reversed. The United States Supreme Court granted certiorari.
Issue
Is evidence that a witness and a defendant he is testifying for are members of a gang that requires its members to commit perjury for each other admissible to show the bias of the witness?
Holding and Reasoning (Rehnquist, J.)
Yes. Proof of a witness’s bias has a tendency to make the facts of his testimony less probable. As a result, evidence of such bias is admissible if it is not barred by Rule 403. A witness’s and a party’s common membership in some type of organization is one example of a witness’s bias. Thus, Ehle’s testimony about Mills’s and Abel’s membership in the secret prison gang makes Mills’s bias in favor of Abel more probable. Although Abel argues that admission of the tenets of the gang is unnecessary to prove the bias and should be excluded under Rule 403, the probative value of the gang’s tenet that its members commit perjury for each other is actually very high. It is evidence not only of the existence of Mills’s bias—because they were in the same organization—but also of the “source and strength” of Mills’s bias: that the tenets of the gang require him to commit perjury for Abel. Thus, Mills has a strong motivation to falsely testify for Abel. Consequently, the evidence of the prison gang is admissible to show Mills’s bias. The United States Court of Appeals for the Ninth Circuit is reversed.
Rule 610: Witness religious beliefs or opinions
FRE 610: evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the
witness’s credibility.
● Exception: are allowed to use evidence of religious belief to show bias/interest (more like using
the relationship that is formed from the religious)
Rule of Law
Under Federal Rule
Fireman’s fund insurance Co v. Thien
Rule of Law
Under Federal Rule of Evidence 610, evidence of a witness’s religious beliefs is not admissible for purposes of attacking or supporting the witness’s credibility.
Facts
Charles Benedict died in a small plane crash. Most of Charles’s survivors (Charles’s litigating survivors) (defendants) brought a wrongful-death action in state court against Michael Thien (defendant), the director of operations for the courier service that owned the plane. Martina and Chris Benedict did not join the action with Charles’s litigating survivors, because Martina and Chris were members of a religious group known as Zion’s Endeavor, which prohibited participation in civil litigation. Thien sought indemnification from the courier service’s insurance company, Firemen’s Fund Insurance Company (Firemen’s Fund) (plaintiff). Firemen’s Fund filed suit in federal district court against Thien, seeking a declaratory judgment that it was not obligated to indemnify Thien or the courier service. Charles’s litigating survivors intervened in Firemen’s Fund’s lawsuit as defendants. At trial in district court, Martina and Chris testified in favor of Thien, who was also their pastor. Charles’s litigating survivors sought to introduce evidence of Martina and Chris’s affiliation with Zion’s Endeavor, including their belief about civil litigation and the fact that Thien was their pastor. The district court admitted the evidence that Martina and Chris were members of a religious group of which Thien was the pastor. However, the district court excluded the civil-litigation beliefs of the religious group from evidence. The district court found in favor of Thien, and Charles’s litigating survivors appealed.
Issue
Is evidence of a witness’s religious beliefs admissible for purposes of attacking or supporting the witness’s credibility?
Holding and Reasoning (Magill, J.)
No. Under Federal Rule of Evidence (FRE) 610, evidence of a witness’s religious beliefs is not admissible to attack or support the witness’s credibility based on those beliefs. Notably, however, a witness’s religious beliefs may be admissible to show the witness’s bias, such as where the religious organization is a party to the litigation. In this case, the district court did not abuse its discretion in its rulings on the admissibility of the evidence related to Martina and Chris’s religion. The fact that Thien was the pastor of Martina and Chris’s church was evidence that their testimony could be biased in favor of Thien. Thus, although the district court permitted the evidence of Martina and Chris’s religious affiliation, this was not improper given the potential for witness bias. The district court was also correct to exclude the detailed evidence of Martina and Chris’s religious beliefs. This detailed evidence, including the belief about civil litigation, was not relevant to any potential bias, but rather was an attempt to attack the credibility of Martina and Chris based on their religious beliefs. This attempt was improper, and the district court properly excluded the evidence under FRE 610. For these reasons, the judgment of the district court is affirmed.
