EV 3

Question 1

What are the 5 common methods of impeachment?

Answer 1

1. Showing bias, sympathy or some other ulterior motive
2. Showing defects in perceptions or memory
3. Showing Bad Character for untruthfulness (prior unconvicted acts indicating dishonest, prior convictions, or reputation/opinion evidence)
4. Demonstrating that the witness has made prior inconsistent statements
5. Contradicting the testimony with counterproof.

Question 2

What is Bias?

Answer 2

Bias is an ulterior motive that could skew testimony or induce a witness to provide false testimony.

Question 3

What are some facts that might show bias AGAINST a party?

Answer 3

–prior disputes
–statements indicating racial animus
–Economic competition
–plea agreements requiring witnesses to cooperate

Question 4

What are some facts that might show bias in FAVOR of a party?

Answer 4

–longstanding friendship
–romantic relationship
–shared economic interest
–membership in the same church

Question 5

What are some facts that might show ulterior motives?

Answer 5

–pending book deal
–pending trial of witness where his testimony could be used

Question 6

When is Bias relevant?

Answer 6

Bias is always relevant; it’s never a collateral issue.

Question 7

Can bias be proven with extrinsic evidence?

Answer 7

Yes. Bias can be proved with extrinsic evidence

Question 8

What are the 3 ways to show (impeachment technique #1) Bias?

Answer 8

1. Showing bias through cross-examination of witness (intrinsic evidence)
2. Showing bias through extrinsic evidence of conduct.
3. Showing bias through extrinsic evidence of statements.

Question 9

What is the thing to note about bias and rule 608(b) prohibiting the use of extrinsic evidence to show bad character for truthfulness?

Answer 9

Don’t worry that FRE 608(b) prohibits use of extrinsic evidence to show bad character for truthfulness. Technique of showing bias is an alternative avenue of admissibility for evidence that wouldn’t be admitted under FRE 608(b).

Question 10

What are common examples of Showing defects in Perception - Sensory Defects?

Answer 10

Common examples of sensory defects:

–sight problems
–hearing problems
–intoxication at the time of observation

Question 11

What are common examples of showing defects in perception - problem with recall?

Answer 11

Common examples of problem with recall:

–poor memory
–intoxication
–mental illness
–dementia
-traumatic episode

Question 12

When are defects in perception or memory relevant?

Answer 12

Defects in perception or memory are always relevant if the testimony depends on perception or memory

Question 13

May intrinsic/extrinsic evidence be used to show defects in perception or memory?

Answer 13

Intrinsic or extrinsic evidence may be used.

–this means you can display it during direct/cross or you can introduce things like their eyeglass prescription or testimony from their optometrist

Question 14

What are 3 ways to show Bad Character for Truthfulness?

Answer 14

1. Showing Prior bad acts (unconvicted) bearing on truthfulness - 608(b)
2. Offering prior convictions - 609
3. Offering reputation or opinion evidence showing that witness has bad character for truthfulness - 608(a)

Question 15

What is the rule regarding out-of-court statements for purposes of impeachment by prior inconsistent statements?

Answer 15

Out-of-court inconsistent statements can only be used for impeachment (see 801(c))

Question 15

What is the rule regarding the admissibility of in-court statements for purposes of impeachment by prior inconsistent statements?

Answer 15

In-court statements are admissible under 801(d)(1) if given under oath in qualifying proceedings; these can be used substantively as well as for impeachment.

Question 16

What is the basic idea of impeachment by prior inconsistent statements?

Answer 16

Were you lying then? Or are you lying now?

Question 17

May extrinsic or intrinsic evidence be used for impeachment by prior inconsistent statements?

Answer 17

Extrinsic or intrinsic evidence can be used.

Question 18

May you impeach with prior inconsistent statements on collateral matters?

Answer 18

No. You can’t impeach with prior inconsistent statements on collateral matters.

Question 19

When impeaching with prior inconsistent statements, what does rule 613(a) require in regard to notice?

Answer 19

613(a) requires that opposing counsel (but not witness) must be given any copy of written statement.

Question 20

When impeaching with prior inconsistent statements, what does rule 613(b) require in regard to witness explanations?

Answer 20

613(b) requires that witness (other than party) be given opportunity to explain inconsistency.

Question 20

What are examples of certain prior statements that can’t be used to impeach by prior inconsistent statements?

Answer 20

–involuntary statements
–statements in plea negotiations
–post-Miranda silence

Question 21

What does it mean to impeach by Contradicting the Witness (technique #5)?

Answer 21

This means simply telling a different story through your own witness.

Question 22

When impeaching by contradicting the witness, many courts require that the contradiction meet the “dual relevancy” requirement. What is this?

Answer 22

Dual relevancy requires that it must be relevant in its own right, not just relevant to contradict the other side.

Question 23

What is rehabilitation?

Answer 23

Rehabilitation means repairing the credibility of the witness.

Question 24

May rehabilitation precede impeachment?

Answer 24

Rehabilitation generally cannot precede impeachment. Proponents must be careful to avoid “vouching” or “bolstering”

Question 25

Is it okay to “front” impeaching material to blunt it’s impact?

Answer 25

Yes. It is ok to front impeaching material in order to blunt it’s impact.

Question 26

What is the limit on the scope of rehabilitation?

Answer 26

The scope of rehabilitation is generally limited to the scope of impeachment.

Question 27

What are the 3 ways/techniques to Rehabilitate?

Answer 27

1. Allow the witness to explain
2. Offer evidence of Character for Truthfulness
3. Offer Prior Consistent Statements

**this is not an exhaustive list

Question 28

What is rehabilitation technique of Allowing witness to explain?

Answer 28

After your witness is impeached on cross, ask questions on redirect that allow your witness to explain what your witness meant.

If the cross implied that the witness has made a prior inconsistent statement, FRE 613(b) requires that the impeached witness must be given a chance to explain or deny the prior statement.

Question 29

If the cross-examination implies that the witness has made prior inconsistent statement, what does rule 613(b) require that the impeached witness be allowed to do?

Answer 29

If the cross implied that the witness has made a prior inconsistent statement, FRE 613(b) requires that the impeached witness must be given a chance to explain or deny the prior statement.

Question 30

What is Rehabilitation technique of Showing Good Character?

Answer 30

FRE 608 allows the proponent of witness to show the witness has good character for truthfulness. There are 2 avenues for this rehabilitation.

Question 31

Under 608, rehabilitation by showing good character, what are the 2 avenues for rehabilitation? (all of it)

Answer 31

1. Under FRE 608(a), once the truthfulness of a witness has been attacked, the party who called the witness may offer testimony by other witnesses, concerning the first witness’ character for truthfulness.

           o The proponent’s rehabilitation witness can’t say that first witness spoke truthfully at the particular time in question; the rehabilitation witness must discuss general character for truthfulness.
   
           * The only impeachment that will allow this rehabilitation under FRE 608(a) is impeachment implying bad character for truthfulness.

2. Under FRE 608(b), the proponent of the first witness may cross-examine the impeaching witness to elicit evidence of prior specific acts by the first witness showing good character for truthfulness.

           o Remember to lay the foundation by showing that the witness who is offering opinion evidence or reputation evidence has a good basis for this testimony.

Question 32

What are the rules under the 2nd avenue for rehabilitation by showing good character, 608(b)?

Answer 32

• Under FRE 608(b), the proponent of the first witness may cross-examine the impeaching witness to elicit evidence of prior specific acts by the first witness showing good character for truthfulness.

o Remember to lay the foundation by showing that the witness who is offering opinion evidence or reputation evidence has a good basis for this testimony.

Question 32

What are the rules under the 1st avenue for rehabilitation by showing good character, 608(a)?

Answer 32

• Under FRE 608(a), once the truthfulness of a witness has been attacked, the party who called the witness may offer testimony by other witnesses, concerning the first witness’ character for truthfulness.

          o The proponent’s rehabilitation witness can’t say that first witness spoke truthfully at the particular time in question; the rehabilitation witness must discuss general character for truthfulness.
  
        * The only impeachment that will allow this rehabilitation under FRE 608(a) is impeachment implying bad character for truthfulness.

Question 33

What is the 3rd technique of rehabilitation, Showing Prior Consistent Statement?

Answer 33

Under 801(d)(1)(B) - once the cross-examination has implied the witness has a motive to fabricate testimony, the proponent may present a prior consistent statement.

Question 34

When may the 3rd rehabilitation technique, showing prior consistent statement, be used?

Answer 34

Under 801(d)(1)(B) - Once the cross-examination has implied the witness has a motive to fabricate testimony, the proponent may present a prior consistent statement.

Question 35

When using rehabilitation technique 3, showing prior consistent statement, does the prior consistent statement need to be made in court or under oath?

Answer 35

No. The prior consistent statement need not be made in court or under oath.

Question 36

When using rehabilitation technique 3, showing prior consistent statements, does the prior consistent statement need to be elicited from the impeaching witness or the witness to be rehabilitated? Or may the statement be elicited from a third witness?

Answer 36

The prior consistent statement need not be elicited from the impeaching witness or from the witness to be rehabilitated; the statement can be elicited from a third witness

Question 37

When using rehabilitation technique 3, showing prior consistent statements, what is the rule in regard to the timing of the prior consistent statement?

Answer 37

The prior consistent statement must predate the motive to lie.

See Tome v. U.S. - where the victim in a child sexual assault case made prior consistent statements after developing a motive to lie (wanting to live with her mother instead of her father)

Question 38

What is the new revision to rehabilitation technique 3, showing prior consistent statements?

Answer 38

New revision to 801(d)(1)(B) allows the introduction of a prior consistent statement “to rehabilitate the declarants credibility as a witness when attacked on another ground”

Question 39

Under 607 - Who may impeach a witness?

Answer 39

Any party, including the party that called the witness, may attack the witnesses credibility.

Both the proponent and the opponent may attack a witness’s credibility.

Question 40

What is rule 608 - A Witness’s Character for Truthfulness or Untruthfulness?

Answer 40

(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) Specific Instances of Conduct - - 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:

        o	(1) the witness; or

        o	(2) another witness whose character the witness being cross-examined has testified about.

• By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Question 41

What is rule 609 - Impeachment by Evidence of a Criminal Conviction?

Answer 41

**(a) In General - -The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

  o	(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

               	(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

               	(B) must be admitted 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; and

   o	(2) for any crime regardless of punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving – or the witness’s admitting – a dishonest act or false statement.

**(b) Limit on Using the Evidence After 10 Years - - This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

      o	(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

      o	(2) 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.

**(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation - - Evidence of a conviction is not admissible if:

       o	(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

      o	(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

**(d) Juvenile Adjudications - -Evidence of a juvenile adjudication is admissible under this rule only if:

       o	(1) it is offered in a criminal case;

      o	(2) the adjudication was of a witness other than the defendant;

      o	(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

      o	(4) admitting the evidence is necessary to fairly determine guilt or evidence.

**(e) Pendency of an Appeal - - A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.”

Question 41

What is the one sentence breakdown of rule 608 - A Witness’s Character for Truthfulness or Untruthfulness?

Answer 41

You can’t rehabilitate until your witness has been impeached and you can only put forth general evidence for character for truthfulness on direct examination, but you can put forth specific evidence for character for truthfulness on cross.

Question 42

What is the breakdown of rule 609 - Impeachment by Evidence of a Criminal Conviction?

Answer 42

Evidence of the following within the last ten years:

  o Felonies: May be admissible subject to an FRE 403 Balancing Test.

  o Convictions for Crimes Requiring Dishonesty (e.g., Perjury, Fraud, etc.): Must be admitted.

  o Pardons, Annulments, or Certificates of Rehabilitation: Make no difference in the admissibility of the conviction unless there’s been a finding of innocence in which case the conviction is no longer admissible.

o Juvenile Adjudications: Only admissible if:

          (1) 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.

o Pendency of an Appeal: Makes no difference in the admissibility of the conviction and the pendency of an appeal is admissible on its own.

Question 43

Create more rule 609 cards

Answer 43

…

Question 43

Create more 609 cards

Answer 43

….

Question 43

What is rule 610 - Religious Beliefs or Opinions?

Answer 43

Evidence of a witness’s religious beliefs or opinions is not admissible to attach or support the witness’s credibility.

You can’t bring up someone’s religious beliefs or opinions to attack or support the witness’s credibility.

Question 44

What is rule 611 - Mode and Order of Examining Witnesses and Presenting Evidence?

Answer 44

• (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

       o	(1) make those procedures effective for determining the truth;
  
       o	(2) avoid wasting time; and
  
       o	(3) protect witnesses form harassment or undue embarrassment.

• (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters directly affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
• (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

        o	(1) on cross-examination; and
  
        o	(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Question 45

What is rule 612 - Writing Used to Refresh a Witness?

Answer 45

• (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

       o	(1) while testifying; or
  
       o	(2) before testifying, if the court decides that justice requires the party to have those options.

• (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
• (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or – if justice so requires – declare a mistrial.

Question 46

What is Rule 613 - Witness’s Prior Statement?

Answer 46

• (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
• (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

Question 47

What is the new version of 613(b) that will likely take effect on 12/1/2024?

Answer 47

• Body Text

o “Unless the court orders otherwise, extrinsic evidence of a witness’s prior inconsistent statement may not be admitted until after the witness is given an opportunity to examine the witness about it. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).”

• Reason for Amendment

       o This amendment clarifies that the opportunity to explain or deny must precede admission of the extrinsic evidence, but the judge will still have discretion to approve a different sequence. The prior version of the rule was less clear on that point.

Question 48

What is rule 614 - Court’s Calling or Examining a Witness?

Answer 48

(a) Calling. The Court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.\

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Question 49

What is rule 615 - Excluding Witnesses?

Answer 49

(a) Excluding Witnesses. At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

       o	(1) a party who is a natural person;

       o	(2) one officer or employee of a party that is not a natural person, if that officer or employee has been designated as the party’s representative by its attorney;

      o	(3) any person whose presence a party shows to be essential to presenting the party’s claim or defense; or

      o	(4) a person authorized by statute to be present.

(b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order:

      o	(1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and

      o	(2) prohibit excluded witnesses from accessing trial testimony.

Question 50

What is the Bias or Sympathy Flowchart?

Answer 50

o Step 1. Are you impeaching with intrinsic or extrinsic evidence?

 If Intrinsic Evidence: Go to Step 2.
 If Extrinsic Evidence: Go to Step 4.

o Step 2. Can you question the witness about an ongoing relationship with the party?

 If Yes: Go to Step 3.
 If No: Go to Step 4.

o Step 3. Is the ongoing relationship the type that would bias someone for or against someone (e.g., are they romantic partners, friends, rivals, etc.)?

 If Yes: this can be used to impeach this can be used to impeach the witness for Bias.
 If No: go to Step 4.

o Step 4. Can you question the witness about a past relationship with the party?

 If Yes: Go to Step 5.
 If No: Go to Step 6.

o Step 5. Is the past relationship the type that would bias someone for or against someone (e.g., are they romantic partners, friends, rivals, etc.)?

 If Yes: This can be used to impeach the witness for Bias.
 If No: Go to Step 6.

o Step 6. Can you call your own witness to testify about the first witness’s bias for or against the party?

 If Yes: This may be used to impeach the witness for Bias.
 If No: go to Step 7.

o Step 7. Can you produce documents that show the witness is biased in favor for or against the party (e.g., text messages, stock options, or anything else that would bias one for or against someone)?

 If Yes: This may be used to impeach the witness for Bias.
 If No: You cannot impeach the witness for Bias.

Question 51

What is the Defective Perception or Mental Capacity Flowchart?

Answer 51

o Step 1. Are you impeaching for Defective Perception or Defective Mental Capacity?

 If Defective Perception: Go to Step 2.
 If Defective Mental Capacity: Go to Step 5.

oStep 2. Are you impeaching for Defective Perception with Intrinsic or Extrinsic Evidence?

 If Intrinsic Evidence: Go to Step 3.
 If Extrinsic Evidence: Go to Step 4.

o Step 3. Can you demonstrate the Defective Perception on Direct or Cross Examination (e.g., by asking how many fingers you’re holding up if impeaching for sight or if they can hear you if impeaching for hearing)?

 If Yes: You may impeach the witness for Defective Perception.
 If No: Go to Step 4.

o Step 4. Can you demonstrate the Defective Perception with Extrinsic Evidence (e.g., testimony or writings from other witnesses like an optometrist for sight or an audiologist for hearing).

 If Yes: You may impeach the witness for Defective Perception.
 If No: Go to Step 5.

o Step 5. Can you demonstrate the Defective Mental Capacity on Direct or Cross (e.g., by asking if they remember what day it is if impeaching for poor recall).

 If Yes: You may impeach the witness for Defective Mental Capacity.
 If No: Go to Step 6.

o Step 6: Can you demonstrate the Defective Mental Capacity with Extrinsic Evidence (e.g., testimony or writings from someone like a psychologist who can testify that people within the class of people as the witness usually have poor or underdeveloped senses of recall or people suffering from similar mental conditions are less likely to fully understand what they are seeing).

 If Yes: You may impeach the witness for Defective Mental Capacity.
 If No: You cannot impeach the witness for Defective Mental Capacity.

Question 52

What is the flowchart for Bad Character for Truthfulness - Method 1 - Specific Unconvicted Instances of Bad Conduct That Bear on Character for Truthfulness?

Answer 52

o Step 1. What method are you using to impeach for bad character for truthfulness?

 If Showing Unconvicted Acts That Bear on Truthfulness (see FRE 608(b)): Go to Step 2.
 If Showing Prior Criminal Convictions (see FRE 609): Go to Step 4.
 If Offering Opinion or Reputation Evidence That Shows Bad Character (see FRE 608(a)): Go to Step 21.

o Step 2. Can you cross-examine about specific unconvicted acts bearing on truthfulness that you have a good basis to be true (e.g., lies, fraud, deception, etc.)?

 If Yes: Go to Step 3.
 If No: Go to Step 4.

o Step 3. Did the witness admit to these specific unconvicted bad acts bearing on truthfulness?

 If Yes: You may impeach the witness for Bad Character for Truthfulness.
 If No: Go to Step 4.

Question 53

What is the flowchart for Bad Character for Truthfulness - Method 2 - Prior Criminal Convictions?

Answer 53

o Step 4. Does the witness have any criminal convictions?

 If Yes: Go to Step 5.

 If No: Go to Step 17.

o Step 5. Are any of these criminal convictions or releases from confinement within the last ten years?

 If Yes: Go to Step 6.

 If No: Go to Step 17.

o Step 6. Has the court found that “the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect?”

 If Yes: Go to Step 7.

 If No: Go to Step 13.

o Step 7: Has the proponent given prior written notice to the adverse party?

 If Yes: You can impeach the witness for Bad Character for Truthfulness using this conviction.
 If No: Go to Step 13.

o Step 8. Do any of these criminal convictions require an element of dishonesty (e.g., perjury, providing false information to a police officer, etc.)?

 If Yes: You may impeach the witness for Bad Character for Truthfulness regardless of if the Witness is the Accused and without the need for a Balancing Test.

 If No: Go to Step 9.

o Step 9: Do any of these criminal convictions have a potential for punishment by death or a term of imprisonment greater than one year?

 If Yes: Go to Step 10.

 If No: Go to Step 13.

o Step 10: Is the witness the Accused?

 If Yes: Go to Step 11.

 If No: Go to Step 12.

o Step 11: Is the probative value substantially outweighed by the prejudicial effect?

 If Yes: Go to Step 17.

 If No: Go to Step 13.

o Step 12: Does the probative value of the conviction outweigh the prejudicial effect?

 If Yes: Go to Step 13.

 If No: Go to Step 17.

o Step 13: Has the witness been pardoned or annulled?

 If Yes: Go to Step 14.

 If No: You can impeach the witness for Bad Character for Truthfulness using this conviction.

o Step 14: Was the pardon, annulment, or certificate of rehabilitation for a finding of innocence?

 If Yes: Go to Step 17.

 If No: Go to Step 15.

o Step 15. Was the pardon, annulment, or certificate of rehabilitation based on a finding that the witness has been rehabilitated?

 If Yes: Go to Step 16.

 If No: Go to Step 17.

o Step 16. Has the witness been convicted of a later crime punishable by death or by imprisonment for more than one year?

 If Yes: You can impeach the witness for Bad Character for Truthfulness using this conviction.

 If No: Go to Step 17.

o Step 17. Does the witness have any juvenile adjudications?

 If Yes: Go to Step 18.

 If No: You cannot impeach the Witness for Bad Character for Truthfulness using this method.

o Step 18. Is the witness the Accused?

 If Yes: Go to Step 21.

 If No: Go to Step 19.

o Step 19. If the juvenile adjudication was an adult offense with all else being equal (e.g., recency, nature of the offense, etc.), would it be usable to impeach the witness?

 If Yes: Go to Step 20.

 If No: Go to Step 21.

o Step 20. Is the juvenile adjudication “necessary for a fair determination of the issue of guilt or innocence?”

 If Yes: You can impeach the witness for Bad Character for Truthfulness using this juvenile adjudication.

 If No: Go to Step 21.

Question 54

What is the flowchart for Bad Character for Truthfulness - Method 3 - Opinion or Reputation Evidence?

Answer 54

o Step 21. Is there a witness who will testify that the original witness has a reputation for bad character of truthfulness?

 If Yes: You can impeach the witness for Bad Character for Truthfulness using Opinion or Reputation Evidence.

 If No: You cannot impeach the witness using Bad Character for Truthfulness using Opinion or Reputation Evidence.

Question 55

What is the flowchart for impeachment by Prior Statements?

Answer 55

o Step 1. Is the prior consistent statement being offered for TOMA (FRE 801(d)(1)) or merely to show inconsistency (FRE 801(c))?

 If for TOMA: Go to Step 2.

 If merely to show inconsistency: You can impeach the witness for Bad Character for Truthfulness using this prior inconsistent statement.

o Step 2. Was the prior statement made under Oath?

 If Yes: Go to Step 3.

 If No: You can still impeach the witness for Bad Character for Truthfulness using this prior inconsistent statement.

o Step 3: Is the witness now available for Cross?

 If Yes: You can impeach the witness for Bad Character for Truthfulness using this prior inconsistent statement AND use it for TOMA!

 If No: You can still impeach the witness for Bad Character for Truthfulness using this prior inconsistent statement.

Question 56

What is Rehabilitation?

Answer 56

The technique of restoring credibility to a witness who has been impeached.

Question 57

What is the flowchart for rehabilitation by Good Character for Truthfulness?

Answer 57

o Step 1. Has the witness been impeached?

 If Yes: Go to Step 2.

 If No: You can’t rehabilitate your witness before your witness has been impeached.

o Step 2. Do you have a witness willing to testify to the impeached witness’s opinion or reputation of truthful character (FRE 608(a)).

 If Yes: You can use Opinion or Reputation Evidence to rehabilitate your witness.

 If No: Go to Step 3.

o Step 3. Are there evidence of specific instances of your witness’s conduct bearing on good character?

 If Yes: Ask the impeached witness about specific instances of their conduct that shows their character for truthfulness on redirect or ask the impeaching witnesses about specific instances of the impeached witnesses’s conduct in cross.

 If No: You can’t rehabilitate your witness using Good Character for Truthfulness.

Question 57

What is the initial rehabilitation flowchart for determining the applicable rules for the relevant rehabilitation method?

Answer 57

What Method Are You Using to Rehabilitate the Witness?

         o	If Allowing Witness to Explain Himself on Redirect: No analysis necessary.

         o	If Showing Good Character for Truthfulness (FRE 608): Go to Good Character for Truthfulness Flowchart.

         o	If Introducing Prior Consistent Statements (FRE 801(d)(2)): Go to Prior Consistent Statements Flowchart.

Question 58

What is the flowchart for rehabilitation by Prior Consistent Statements?

Answer 58

o Step 1. Has the witness been impeached for suggested motive to lie?

 If Yes: Go to Step 2.

 If No: You can’t rehabilitate your witness using Prior Consistent Statements if they haven’t been impeached for dishonesty.

o Step 2. Does the consistent statement predate the bad motive?

 If Yes: Go to Step 3.

 If No: You can’t rehabilitate your witness using Prior Consistent Statements if the prior consistent statements don’t predate bad motive (see Tome v. United States).

o Step 3. Is the impeached witness available for cross?

 If Yes: You can rehabilitate using Prior Consistent Statements.

 If No: You can’t rehabilitate your witness using Prior Consistent Statements if the impeached witness isn’t available for cross.