Evidence Flashcards
Federal Rules Applicability / Non-Applicability
- FRE applicable in all Civil and Criminal federal proceedings
- Except for rules relating to PRIVILEGE, FRE do not apply in:
(1) Preliminary fact determinations by judge
(2) Grand jury proceedings
(3) Other miscellaneous (Sentencing; Extradition; Bail; Probation)
General Rule of Admissibility
- Irrelevant evidence never admissible
- Relevant evidence admissible unless kept out by some other evidence rule
Define: Relevance
Evidence is relevant if it has any tendency to make the existence of any fact that is (1) of consequence to the determination of the action (2) more probable or less probable that it would be without the evidence
Evidence must be logically and legally relevant to be admissible. Logical relevance simply requires that the evidence make a disputed fact of consequence more or less probable. Evidence is legally relevant if its probative value is not substantially outweighed by the danager of unfair prejudice, waste of time, misleading the jury, or needless presentation of cumulative evidence.
What does it mean to be “of consequence”?
Offered to prove a fact that the applicable substantive law in this case says is of consequence
What does it mean to be “more probable or less probable”?
Use your common sense and explain why the probability has increased or decreased, even if it’s obvious!
Probative Value 🆚 Relevance
- Probative Value = the degree to which evidence affects a fact of consequence
- Relevance = evidence is relevant if it affects the probabilities of fact of consequence to any degree even the slightest (yes or no answer)
Court’s Discretion to Exclude Relevant Evidence (403)
Judge has discretion to exclude evidence if probative value SUBSTANTIALLY OUTWEIGHED by the dangers of:
1. Unfair prejudice
2. Confusion of issues
3. Misleading jury
4. Waste of time
5. Undue delay
6. Repetitive
Define: Unfair Prejudice
Evidence has the potential to move the jury to decide the case on some IMPROPER BASIS, such as:
(1) Emotion
(2) Evidence admissible on limited basis (1 item of evidence that’s relevant to prove 2 facts of consequence; admissible for 1 and inadmissible for other)
Define: Similar Occurrences
When evidence involves some time, event, or person other than that involved in the present case, usually inadmissible; however, some rules allow prior similar occurrences to be admitted.
Similar Occurrences - Admissible
(1) Similar Accidents or Injuries Caused by Same Condition
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is ADMISSIBLE to prove:
(1) Existence of dangerous condition
(2) Causation
(3) Notice to defendant
Similar Occurrences - Admissible
(2) Plaintiff’s Prior Accidents or Claims & 2 Exceptions
Evidence of a plaintiff’s prior accidents or claims is usually INADMISSIBLE; all it demonstrates is that the plaintiff is litigious or accident-prone.
2 Exceptions
(1) Pre-existing condition: evidence of prior accidents may be admissible where the cause of plaintiffs damages is at issue. If plaintiff previously injured the SAME part of their body, evidence may be admitted to show that plaintiff’s condition is attributable to the prior injury rather than the current accident.
(2) Pattern of false claims: evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the current claim is likely to be false
Similar Occurrences - Admissible
(3) Previous Similar Acts to Prove Intent
Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case
Similar Occurrences - Admissible
(4) Rebutting Claim of Impossibility
Evidence of similar occurrences may be admitted to rebut a claim of impossibility
Similar Occurrences - Admissible
(5) Comparable Sales to Establish Value
Value of property may be at issue in certain cases, such as in a condemnation action, or to prove the amount of damages where property has been harmed or destroyed. In this situation, evidence of the sale price of similar property is admissible if it was in the same are and sold at around the same time
Similar Occurrences - Admissible
(6) Habit Evidence
- Admissible as circumstantial evidence person acted in accordance with habit on occasional issue
- Habit: regular response to a specific set of circumstances; repeated conduct; evidence objectively describes conduct without suggesting anything about person’s morality
- Compared to Character Evidence: describes someone’s general disposition or propensity (I.e., “careful driver”) and usually conveys moral judgment; usually not admissible to prove how a person acted during events of the case
Similar Occurrences - Admissible
(7) Routine Practice Evidence
Organization’s routine practice admissible as evidence of how organization acted in current case
Similar Occurrences - Admissible
(8) Industrial Custom Evidence
Evidence as to how others in the same trade or industry have acted in the recent pas is admissible as evidence of appropriate standard of care (to show how the party in the current case should have acted). However, industry custom in’t conclusive on this point.
Liability Insurance
-
INADMISSIBLE to prove
(1) Negligence or wrongful conduct
(2) Ability to pay -
ADMISSIBLE to prove
(1) Ownership or control
(2) Impeachment
(3) Part of an admission of liability
Subsequent Remedial Measures
-
INADMISSIBLE to prove
(1) Negligence
(2) Culpable conduct
(3) Defect in product or its design
(4) Need for a warning or instruction -
ADMISSIBLE to prove
(1) Ownership or control
(2) Rebut a claim that precautions were not feasible
(3) Destruction of evidence by opposing party
Civil Settlement Offers or Negotiations
Settlements, offers, conduct or statements in negotiations are
* INADMISSIBLE
(1) To prove or disprove validity or amount of a disputed claim
(2) Impeach witness by prior inconsistent statement or contradiction
* ADMISSIBLE for all other purposes
When Does Public Policy Excusion for Settlements and Negotiations Apply?
Disputed claim required, i.e., evidence is excluded only if
(1) Claim or threat of claim
(2) Disputed as to validity or amount
Ex) “It was all my fault, lets settle” = admissible
Ex) “My neck hurts, gonna see a lawyer” = inadmissible
Limited Exception: Civil Dispute with Government Authority
Conduct or statements made during compromise negotiations regarding a civil dispute with a governemntal regulatory, investigative, enforcement authority are NOT excluded when offered in a CRIMINAL case
Withdrawn Guilty Pleas & Offers to Plead Guilty
-
INADMISSIBLE for nearly all purposes:
Offers to plead guilty
Withdrawn guily plea
Actual no contest pleas
Statements in plea discussions - ADMISSIBLE for actual guilty plea that was not withdrawn in related litigation as a statement of an opposing party (See hearsay)
Offers to Pay & Payment of Medical Expenses
- INADMISSIBLE to prove culpable conduct
- ADMISSIBLE for all other purposes (Admissions of fact accompanying an offer to pay medical expenses)
Ex) “I’ll pay your hospital bill” = inadmissible
Ex) “I shouldn’t have dropped that banana peel on stairs” = admissible
Ex) “If you sign release form, I will pay your hospital bill. I shouldn’t have dropped banana peel on stairs” = inadmsisible, falls under settlement rule, not this rule
Define: Character Evidence
- Person’s general propensity or disposition to act in a certain way
- Conveys a moral judgement (violent, honest, peaceful)
3 Purposes for Offering Character Evidence
- Prove person’s character when directly in issue (rare)
- Prove how person probably acted (conduct in conformity/propensity evidence) - often inadmissible
- Impeachment
3 Methods of Proving Character
- Specific acts
- Opinion testimony
- Reputation testimony
3 Step Approach to Analyzing Charater Evidence
- What type of evidence? (specific acts, opinion, reputation)
- Civil or criminal case?
- Offered to prove pertinent trait?
Character Evidence in Civil Cases (& Limited Exception)
- Generally INADMISSIBLE to prove conformity
- Limited Exception: sexual assault or child molestation cases
Ex) To prove defendant drove negligently, plaintiff calls witness who testifies defendant has reputation for being a reckless driver = inadmissible
Ex) Civil action for assault arising out of defenant’s alleged molestation of child plaintiff. Defendant denies molestation. Plaintiff offers evidence that defendant molested other children = admissibe
Character in Civil Cases Directly in Issue (3)
- Defined: When proof of a person’s character, as a matter of substantive law, is an essential element of a claim/defense, character is directly in issue
- When character is directly at issue, all forms of character evidence (reputation; opinion; specific acts) are admisisble
(1) Defamation cases where truth is a defense (plaintiff’s character at issue)
(2) Negligent hiring or entrustment cases (hired/en trusted person’s character at issue)
(3) Child custody cases (parents’ character at issue)
Defendant’s Character Evidence in CRIMINAL CASES
General rule, the prosecution CANNOT initiate evidence of the Defendant’s bad character to show conduct in conformity.
Exception - Sexual assault and child molestation cases - can introduce evidence!
Open the Door
Defendant is permitted to “open the door” and introduce evidence of their own good character to show their innocence. Notably, the prosecution then can rebut Defendant’s character.
Character Evidence Allowed in Criminal Case
Defendant may offer evidence of their own good character to prove their conduct in the case.
Evidence must concern a:
(1) Pertinent trait; and
(2) Such trait must be in the form of reputation and/or opinion testimony.
*CANNOT provide specific acts of good conduct to prove character.
Prosecution’s Options After D Opens the Door
The prosecution can:
(1) Call their own character witnesses to provide reputation or opinion testimony about the Defendant’s bad character for the trait in question;
(2) Prosecution can cross-examine the Defendant’s character witness regarding the basis of their testimony and ask about specific instances of the Defendant’s conduct. (“Have you heard D once attacked his professor?”)
- This evidence of specific instances is only admissible to impeach the Defendant’s witness - to show lack of knowledge of D’s character. Not admissible to show Defendant’s character.
Cross Examination
Prosecution can ask specific instances only to impeach the Defendant’s witness. Not admissible to show Defendant’s character.
D’s Introduction of Victim’s Character in Criminal Cases
Defendant has the key and can offer reputation and/or opinion testimony concerning victim’s character for relevant trait. Prosecution can then rebut.
NOTE: Prosecution cannot offer evidence of the victim’s reputation before Defendant has opened the door.
NOTE: This is not allowed in sexual assault cases. Defendant does not have the key to introduce evidence on victim’s character in SA cases.
Prosecution Rebuttal re: Victim’s Character in Criminal Case
Once Defendant has introduced evidence of a victim’s bad character for pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:
(1) Victim’s good character for the same trait; or
(2) Defendant’s bad character for the same trait.
Homicide Case - Prosecution Can Initiate
In a homicide case which the defendant:
(1) Pleads self-defense;
(2) Evidence of ANY kind that the victim was the first aggressor;
(3) Opens the door to evidence that the victim had a good character for peacefulness.
(4) Prosecution can introduce this evidence regardless of whether the D has introduced character evidence of the victim’s generally violent propensity.
Rape Shield Law - Victim’s Character in Sexual Assault Case
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.
EXCEPTIONS for Admission of Victim’s Character in SA Criminal Cases
Specific instances of a victim’s sexual behavior are admissible to prove:
(1) Someone other than the Defendant is the source of semen, injury, or other physical evidence;
(2) Sexual behavior between victim and the Defendant is admissible by the prosecution for any reason and by the defense to prove consent.
EXCEPTIONS for Admission of Victim’s Character in SA Civil Cases
Evidence of the alleged victim’s sexual behavior is admissible if:
(1) Not excluded by any other rule; and
(2) Probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.
Sexual Assault Cases Civil & Criminal
Evidence of Victim’s Reputation
Only admissible if it has been placed in controversy by the victim.
Other Misconduct for Non-Character Purpose
Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity BUT may be admissible if offered for non-character purpose.
Independently Relevant (MIMIC)
Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases).
Non-character purposes of offering the evidence may include (MIMIC):
(1) Motive;
(2) Intent;
(3) Mistake (absence of)
(4) Identity
(5) Common scheme or plan.
Also includes: Opportunity, preparation, plan, knowledge, lack of accident.
Requirements for Admissibility of Misconduct under MIMIC
Misconduct may be proved by any evidence: witness testimony, defendant’s criminal conviction, etc. But, there must be evidence sufficient to support a jury finding that the Defendant committed the other misconduct. Additionally, the evidence of the misconduct will also be subject to the 403 balancing test.
(Rule 403) REMEMBER, the Judge always has discretion to exclude relevant evidence if the danger of unfair prejudice substantially outweighs the probative value.
Defendant’s Similar Misconduct in SA Criminal or Civil Cases
Defendant’s other similar acts are admissible during its case-in-chief in any criminal or civil case involving alleged sexual assault or child molestation. Prosecution must disclose the evidence to the Defendant 15 days before trial (or later w/ good cause)
Note - Prosecution can introduce specific acts to show Defendant’s propensity to commit the act at issue in the case.
Competency of Witnesses
Witness must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established.
Federal Rules of Competency
The witness must:
(1) Have personal knowledge of the matter about which they are to testify; and
(2) Must give an oath or affirmation to testify truthfully.
Modern Modification of Competency
Federal Rules have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit. However, the following has been modified:
(1) Children-case-by-case determination - Competency of children depends on the capacity and intelligence of the particular child as determined by the trial judge.
(2) Insanity - An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.
(3) Judge and Jurors - Presiding Judge may NOT testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting. But, there are exceptions:
-
Jurors may testify as to:
(1) Extraneous prejudicial information;
(2) Outside influence;
(3) Mistake in verdict form;
(4) Another juror’s clear statement that they relied on racial stereotypes or animus to convict a criminal defendant.
Lack of Personal Knowledge v. Hearsay Objections
Is the fact that the witness testifies to the same fact that the witness perceived w/ his/her sense? If not, personal knowledge is the proper objection.
Examples:
- Blind witness testifying Defendant shot the victim. Her testimony is based on what she heard someone else say. Defense can raise lack of personal knowledge objection.
- Blind witness testimony based on what the Sherriff told her. Defense will be hearsay - she is repeating the Sherriff’s out of court statement.
Dead Man Acts
Ordinarily, a witness is not disqualified merely because they have an interest in the outcome of the litigation. However, some states have what are known as the “Dead Man Acts”. These statutes provide that in a civil case, an interested person is incompetent to testify to a personal transaction or communication w/ a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
Person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.
Form of Questioning Allowed
Fed Rules state that the Judge should exercise reasonable control over the examination of witnesses in order to:
(1) Aid the ascertainment of truth;
(2) Avoid wasting time; and
(3) Protect witnesses from harassment.
Leading Questions During Cross-Examination
Leading questions are generally allowed only on cross-examination. But it is limited to:
(1) Scope of direct examination, including all reasonable inferences that may be drawn from it; and
(2) Matters that test the credibility of the witness (impeachment)
Leading Questions During Direct Examination
Leading questions are NOT permitted during direct examination. HOWEVER, the court will ordinarily allow leading questions on direct in the following circumstances:
(1) Preliminary or introductory matter (your name is Jane Doe? You live on Main Street?);
(2) Witness needs help responding (Witness is young);
(3) Witness is hostile, adverse party, or affiliated w/ adverse party.
Other Improper Questions
Questions that are:
(1) Misleading;
(2) Compound (requiring a single answer to more than on question);
(3) Argumentative;
(4) Narrative (not properly focused);
(5) Assume facts not in evidence;
(6) Nonresponsive (do not answer the specific question asked)
Using Documents to Aid Oral Testimony
Generally, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of their current recollection.
However, a memorandum or other record MAY be used in certain circumstances.
*Check for hearsay issues whenever a witness uses a document on the stand.
Refreshing Recollection
Witness may use any writing or object for the purpose of refreshing their present recollection. They usually may NOT read from the writing while testifying because the writing is not authenticated and not in evidence (thus, there is no hearsay concern).
Refreshing Recollection - Adverse Party’s Options
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
(1) Have the writing produced at trial;
(2) Cross-examine the witness about the writing; and
(3) Introduce portions of the writing related to the witness’s testimony into evidence.
Recorded Recollection - Exception to Hearsay Rule
Recorded recollection is an exception to the hearsay rule. Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper foundation is laid which includes:
(1) Witness has insufficient recollection to testify fully and accurately;
(2) Witness had personal knowledge of the facts in the record when the record was made;
(3) Record was made by the witness or under their direct, or it was adopted by the witness;
(4) Record was made or adopted when the matter was fresh in the witness’s mind; and
(5) Record accurately reflects the witness’s knowledge .
Opinion Testimony
The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be (1) Necessary or (2) at least helpful.
Lay Opinion Testimony
Generally inadmissible, however where no better evidence can be obtained opinions by lay (nonexpert) witnesses are admissible if:
(1) Rationally based on the witness’s perception (logical connection from their perception and opinion stated);
(2) Helpful to a clear understanding of the witness’s testimony or helpful to determine of a fact in issue; and
(3) Not based on scientific, technical, or other specialized knowledge.
Situations Where Opinions of Lay Witnesses Are Admissible
(1) General appearance or condition of a person;
(2) State of emotion of a person;
(3) Matters involving sense recognition;
(4) Voice or handwriting identification;
(5) Speed of a moving object;
(6) Value of the witness’s own services of property;
(7) Rational or irrational nature of another’s conduct; and
(8) Person’s intoxication.
Lay witness may NOT give an opinion on whether party was:
(1) Acting as an agent; or
(2) Contract was made.
Expert Witness Testimony
Federal Rules provide that for expert testimony to be admissible the witness must be:
(1) Qualified as an expert;
(2) Reasonably certain;
(3) Subject matter of the testimony is one that would be helpful to the jury;
(4) Opinion must be based on sufficient facts and data;
(5) Opinion is the product of reliable principles;
(6) Expert must have reliably applied the principles and methods to the facts of the case.
Qualification as Expert
There is showing the witness has specialized knowledge, skill, experience, training, or education.
Reasonable Certainty
The expert must have a reasonable level of certainty in the correctness of the opinion. A mere guess or speculation is not sufficient.
Opinion Must be Helpful
Subject matter must be one where specialized knowledge would be helpful to the jury.
Based on Proper Factual Basis
Expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following (3):
(1) Facts based on expert’s own observations;
(2) Facts made known to expert at trial; or
(3) Facts of a type reasonably relied upon by other experts in the field.
Expert Testimony: Court Determines Reliability (Daubert Factors)
Federal courts determine the reliability of all expert testimony and have discretion to consider a wide variety of factors. The Daubert factors include whether the expert’s testimony has been subject to:
(1) Testing;
(2) Peer review and publication;
(3) Error rate;
(4) Standards controlling operation;
(5) General acceptance by other experts in the field.
Learned Treatises - Exception to Hearsay
An excerpt from a treatise, periodical, or pamphlet may be used during expert testimony not only to impeach experts, but also as substantive evidence under the learned treatise exception to the hearsay rule, subject to:
(1) Treatise must be established and reliable authority by:
- (a) testimony of the expert on the stand;
- (b) testimony of another expert; or
- (c) judicial notice;
(2) Excerpt must be used in the context of expert testimony; and
(3) Excerpt is read into evidence but cannot be received as an exhibit.
Expert Opinion on Ultimate Issues
Generally, expert is permitted to render an opinion as to the ultimate issue in the case. However, experts may not state an opinion as to whether the accused did or did not have the mental state in issue in a criminal case.
Court-Appointed Experts
A court has broad discretion to appoint expert witnesses. On a party’s motion or its own, the court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations.
The court may then appoint any expert who consents to act, and the court must inform the expert of their duties.
Expert must:
(1) Advise the parties of any findings they make;
(2) Any party may depose the expert (call the expert as a witness or cross-examine);
(3) Expert is entitled to reasonable compensation by the court;
(4) Court may authorize disclosure to the jury that the expert was appointed by the court.
Exclusion and Sequestration of Witnesses
Upon a party’s request, the trial judge MUST order witnesses excluded from the courtroom. The judge may also do this on their own motion. The judge however may NOT exclude:
(1) Party or a designated officer or employee of the party;
(2) Person whose presence is essential to the presentation of the party’s claim or defense; or
(3) Person statutorily authorized to be present.
Bolstering Witness Testimony: Admissibility & Exception
- Bolstering a wintess’s testimony generally prohibited unless and until credibility is attacked.
- Exception: A party may offer evidence that the witness made a timely complaint or a prior statement of identification even if this tends to bolster their in-court testimony
- Prior identification may also serve as susbtantive evidence that the identification was correct
Who may impeach a witness?
Any party, including the party who called them
Forms of Impeachment
- Cross-examination of witness
- Extrinsic evidence (other witness or documents)
Impeachment Analysis Steps (3)
- Source of impeachment evidence: cross-examination or extrinsic evidence?
- If it is extrinsic evidence: can it be admitted under impeachment method being used?
- Any foundation requirements?
Impeachment Methods: Facts Specific to Case (4)
- Prior inconsistent statements
- Bias
- Sensory deficiencies
- Contradiction
Impeachment Methods: General Bad Character for Untruthfulness (3)
- Opinion or Reputation evidence of untruthfulness
- Prior convictions
- Prior bad acts involving untruthfulness
Impeachment
Prior Inconsistent Statements
- May be done on examination of witness or with extrinsic evidnce
- Extrinsic evidence must be
(1) Relevant and
(2) Foundation required - Admissible for impeachment purposes only
- Admissible as substantive evidence when made under oath at prior proceeding (Admissible Nonhearsay)
Impeachment: Prior Inconsistent Statement
Foundation for Extrinsic Evidence Requirements (3) & Exceptions (3)
(1) NOT Collateral (Probative of some fact consequence to the case or says something about witness’s credibility beyond just showing witness made an inconsistent statement)
(2) Give Witness Opportunity to explain or deny
(3) Give Adverse party Opportunity to examine witness
EXCEPTIONS:
1. Prior inconsistent statement is opposing party’s statement
2. Hearsay declarant is being impeached
3. Justice requires
Impeachment
Bias or Interest & Foundation for Extrinsic Evidence
- Evidence that a witness is biased or has an interest in outcome of a case tends to show that the witness has a motive to lie
- Extrinsic evidence allowed, but witness generally must be questioned about bias first on cross-examination
Impeachment
Sensory Deficiencies
- Showing their perception and recollection were so impaired to make it doubtful they could have perceived facts or show they had no knowledge of facts
- Admissible on examination of witness or by extrinsic evidence
- No foundation requirement
Bad eyesight/hearing, poor memory, consumption of alcohol/drugs
Impeachment
Contradictory Facts
- Cross-examiner can try to make witness admit they lied or were mistaken about some fact they testified to during direct examination
- Extrinsic evidence generally permitted unless imepaching fact is collateral (Not material to issues in case and says nothing about witness credibilty except to contradict them)
Impeachment
Opinion or Reputation Evidence of Untruthfulness
Testimony admissible to show admissible impeached witness has poor character for truthfulness (to show they were not telling the truth while on stand)
Type of character evidence
Impeachment
Conviction of Crime
- Witness may be impeached by proof of conviction (not arrest/indictment) for certain crimes:
(1) Any crime involving dishonesty or false statement - Court CANNOT exclude (perjury, false statement, criminal fraud, embezzlement, false pretense)
(2) Felony not involving dishonesty or false statement - Court has discretion to EXCLUDE these convictions. Balancing test depends on whether witness being impeached is the defendant in criminal case OR someone else?
(a) Criminal Defendant: Court EXCLUDES conviction if prosecution has NOT shown that its probative value outweighs its prejudicial effect (difficult)
(b) Any Other Witness: Court EXCLUDES conviction if it determines its probative value is substantially outweighed by its prejudicial effect (403 balancing test favors admitting evidence) - Remoteness: Generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later. Court may allow if probative value substantially outweighs prejudicial effect (Reverse 403) and proponent gives adverse party reasonable written notice of intent to use it
- Method of Proof: On examination of witness or by extrinsic evidence (record of judgment)
- Effect of Pardon: Conviction cannot be used to impeach if (1) Pardon based on rehabilitation and no subsequent felony convicion or (2) Pardon based on innocence
- Juvenile convictions are generally not admissible for impeachment
- A conviction obtaned in violation of defendant’s constituional rights is invalid for all purposes, including impeachment
- Prior conviction used to prove witness’ conduct = Inadmissible
- Prior conviction to impeach credibility as witness = Admissible
Impeachment
Bad Acts Involving Untruthfulness
- Interrogation permitted if misconduct is probative of truthfulness
- Extrinsic evidence prohibited if defendant denies bad act
Ex) Lying
Ex) Arrest =/= bad act