Credibility and IMPEACHMENT Flashcards
ACCREDITING OR BOLSTERING
FRE:
With certain exceptions, a party is not allowed to bolster or accredit the testimony of their witness until witness has been impeached.
CA:
The California rule is the same in civil cases.
But in criminal cases, Proposition 8 allows both prosecutor and defendant to bolster witness’s credibility before it has been attacked.
IMPEACHMENT METHODS (overview)
FRE:
* Bias or interest
* Prior inconsistent statement
* Contradictions
* Felony Convictions (some)
* Misdemeanor convictions involving dishonesty or false statement
* Evidence of prior bad acts for untruthfulness
* Character testimony for truthfulness (OT and RT) (rep and opinion E of untruthfulness)
* Sensory deficiencies
CA:
* Prior inconsistent statement
* Felony convictions involving Moral Turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct)
* misdemeanor convictions in criminal cases if the crime involves moral turpitude.
* Evidence of [bad] acts of moral turpitude (only in Criminal cases, not in civil cases)
* Character testimony for truthfulness (OT and RT)
Impeachment Methods
Prior inconsistent statement:
Fed, CA
FRE:
For the purpose of impeaching a W’s credibility, a party may show that the W has, on another occasion, made statements that are inconsistent with some material part of his present testimony.
Extrinsic evidence can be introduced to prove a PIS ONLY IF
it’s NOT COLLATERAL (statement must be relevant to some issue in the case) AND, AT SOME POINT
1. The witness must, at some point in the case, be given the opportunity to explain or deny the inconsistent statement.
(However, this is not required if the PIS is an opposing party’s statement.)
AND
2. The adverse party is given opportunity to examine witness about the PIS.
Not hearsay if limited to impeachment purposes.
If offered as substantive evidence (for the truth of the matter asserted), generally inadmissible hearsay unless made under oath in a prior legal proceeding, in which case it falls within a hearsay exclusion.
(meaning, it is not considered hearsay and is admissible).
CA:
Under CEC, admissible as substantive evidence even if not made under oath in a prior legal proceeding. Categorized as a hearsay exception (rather than a hearsay exclusion).
Impeachment Methods
Felony convictions:
FRE:
* Convictions for felonies involving dishonesty or false statement (perjury, forgery, fraud, embezzlement, false pretense) are admissible; court has no discretion to balance unless conviction is more than 10 years old.
* Convictions for felonies not involving dishonesty or false statement are admissible subject to court’s discretion.
- If criminal defendant is being impeached, conviction is inadmissible unless probative value outweighs unfair prejudice (special balancing test).
- If any other witness is being impeached, conviction is admissible unless unfair prejudice substantially outweighs probative value (general Rule 403 balancing test).
CA:
* Under CEC, felony convictions involving moral turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct) are admissible, subject to court’s balancing under CEC 352.
- Simple assault is not considered a crime of moral turpitude.
* In civil cases, witness may be impeached only with the fact that they have been convicted of the felony.
* But in criminal cases, Proposition 8 makes evidence of the circumstances underlying the crime admissible to impeach witness if the evidence has any tendency to disprove credibility.
Impeachment methods
Misdemeanor convictions:
FRE:
Misdemeanor convictions involving dishonesty or false statement are admissible; court has no discretion to exclude them.
Convictions for misdemeanors not involving dishonesty or false statement are inadmissible.
CA:
Under CEC, in civil cases, misdemeanor convictions are inadmissible.
In criminal cases, Proposition 8 makes misdemeanor convictions admissible, subject to court’s balancing under CEC 352, if the crime involves moral turpitude.
Older convictions:
FRE:
Generally inadmissible if more than 10 years have passed, but court may admit if probative value substantially outweighs prejudicial effect (difficult balancing test to pass).
CA:
California does not have a specific rule for old convictions, but court may consider timing as a factor affecting probative value when applying the CEC 352 Balancing test.
Evidence of bad acts:
FRE:
Witness can be asked on cross-examination about bad acts (for which there was no conviction) that bear on character for truthfulness (that is, acts of lying), subject to Rule 403 balancing.
Extrinsic evidence is not permitted.
CA:
Under CEC, in civil cases, witness cannot be impeached with bad acts that did not result in conviction (meaning this impeachment method is NOT available).
In criminal cases, Proposition 8 makes acts of moral turpitude admissible by both cross-examination and extrinsic evidence.
Impeachment evidence
Character testimony regarding untruthfulness:
BOTH FRE and CA:
OT and RT that bears on witness’s untruthfulness is admissible
REHABILITATION WITH
PRIOR CONSISTENT
STATEMENT
**FRE: **
Witness’s prior consistent statement admissible to rehabilitate if:
* Offered to rebut attack on witness’s credibility based on improper motive and if made before motive to lie arose; or
* Offered to rehabilitate witness impeached on some other ground (for example, sensory deficiency or prior inconsistent statement).
* A prior consistent statement admissible to rehabilitate is also admissible as substantive evidence under a hearsay exclusion.
**CA: **
Under CEC, admissible to rehabilitate if offered to rebut attack on witness’s credibility based on improper motive or prior inconsistent statement and if made before motive to lie arose or prior inconsistent statement was made.
Also admissible as substantive evidence but categorized as a hearsay exception (rather than a hearsay exclusion).
