Credibility and Impeachment CA Flashcards
Bolstering the Credibility of a Witness
FEDERAL: A party is not permitted to bolster the testimony of their witness until the witness has been impeached.
Exceptions: Evidence that the witness made a timely complaint or a prior statement of identification, even if this tends to bolster their in-court testimony.
CA RULE: Same in civil cases. In criminal cases, Prop. 8 allows both the prosecutor and the defendant to bolster a witness’s credibility before it has been attacked.
Impeachment with a Prior Inconsistent Statement
A prior inconsistent statement is not hearsay if offered only to impeach. However, if offered for the truth of the matter asserted:
FEDERAL: Hearsay exclusion if the witness’s prior inconsistent statement was given under oath at a trial or deposition (i.e., it is not hearsay)
CA:
Categorizes prior inconsistent statements as a hearsay exception (not an exclusion.) The exception extends to all prior inconsistent statements, even if they were not made under oath.
Impeachment with Prior Felony Convictions
FEDERAL: Convictions for felonies involving dishonesty or false statement are admissible (unless too old). The court has no discretion to exclude these convictions. Felonies not involving dishonesty or false statement are also admissible, but the court has discretion to exclude them.
CA: All felonies involving “moral turpitude” are admissible, but the court has discretion to exclude them. Felonies not involving moral turpitude are inadmissible.
Moral Turpitude Crimes involve: lying, violence (but not simple assault), theft, extreme recklessness, or sexual misconduct.
- Merely negligent or unintentional acts are not crimes of moral turpitude.
CA Civil Cases: Can only impeached with the fact that they have been convicted of the felony.
CA Criminal Cases: Prop. 8 makes evidence of the circumstances underlying the crime admissible to impeach the witness if the proponent demonstrates that the evidence has any tendency to disprove credibility.
Impeachment by Prior Misdemeanor Convictions
FEDERAL: All convictions for misdemeanors involving dishonesty or false statement are admissible (court has no discretion to exclude.) Convictions for misdemeanors that do not involve dishonesty or false statement are inadmissible.
CALIFORNIA: Misdemeanor convictions are inadmissible in civil cases, but Prop. 8 allows convictions for misdemeanors involving moral turpitude to be admitted in a criminal case.
- Still subject to court’s balancing
Impeachment using Older Convictions
FEDERAL: If a conviction qualifies for impeachment but more than 10 years have passed since the date of conviction or release from prison (whichever is later), it’s inadmissible UNLESS the court determines that the conviction’s probative value substantially outweighs its prejudicial effect (a tough balancing test to pass).
CA: doesn’t have a specific rule for old convictions, but CA courts always have discretion to exclude a conviction offered for impeachment.
Impeachment with Bad Acts
FEDERAL: A witness’s bad acts involving untruthfulness are admissible even they did not lead to a conviction. This impeachment MUST be done on cross-examination only. Extrinsic evidence of the bad act is inadmissible, and the evidence is subject to Rule 403 balancing.
CA: If the bad act did not lead to a conviction it is not permitted to impeach in civil cases. In criminal cases, Prop. 8 makes acts of moral turpitude admissible for impeachment in criminal cases.
Rehabilitation of an Impeached Witness
FEDERAL: A party can rehabilitate an impeached witness by introducing the witness’s prior consistent statement if (1) the prior consistent statement was made before a motive to lie arose, or (2) the witness was impeached on some other ground, and the prior consistent statement tends to rehabilitate the witness.
CA: California rule is the same with respect to category (1) above, but (2) a prior consistent statement is admissible if the witness was impeached with a prior inconsistent statement, and the prior consistent statement was made before the prior inconsistent statement.
NOTE: A prior consistent statement that is admissible for rehabilitative purposes is also admissible as substantive evidence (i.e., for the truth of its contents.) Federal Rules: not hearsay. CA: hearsay exception.
