Evidence Flashcards
Prior inconsistent statements by witnesses for impeachment purposes?
613 – permits use for impeachment only
o CE allowed
o EE (Extrinsic evidence) allowed if first est a foundation by asking witness + if not collateral
• 801(d)(1)(A) prior inconsistent statements
permits use for impeachment and as substantive evidence
o stmt admitted for substantive truth (not hearsay) IF (1) declarant is on stand & is subject to cross, (2) prior stmt is inconsistent with current stmt, (3) prior stmt was given under oath & penalty for perjury in hearing/other formal proceeding (transcript rqmt, includes grand jury, excludes stmt to FBI)
o must have GF basis to call, cannot call just to impeach
Bias
• CE or EE (if proper foundation) – permissible for impeachment only – not in FRE
o Up to judge to decide whether bias witness admits can also warrant EE
o Examples of admissible bias impeachment evidence = (1) financial stake in outcome, (2) family or personal or relationship stake, (3) prejudice/bigotry
o Δ can ask prosecution witness if he has received immunity for his testimony/on parole, etc.
Prior Convictions
• 609 – permits use for impeachment only in certain circumstances
o CE or EE (record of conviction) – even for EE, NO foundation rqmt
o Types of crimes: 609(a)
• Crimes involv dishonesty or false stmts MUST be admissible (misdem & felony) – no 403
• Felonies not involving dishonesty – ct will use 609 balancing to generally EXCLUDE prior convictions WRT Δ and INCLUDE prior convictions of other witnesses
o Requires actual conviction, cannot be too remote (>10 yrs have passed since later of conviction or release), usu juvie record not admissible, admissible regardless of stage on appeal, constitutionally defective conviction not admissible
Bad Acts of Witness
• 608(b) – permits use for impeachment only
o CE allowed – LIMITED to cross-examining the witness about the prior bad acts
o EE NOT ALLOWED – cannot intro evid about prior bad act – problematic for hearsay impeachment
o Must be related to truthfulness/worthy of belief (not honesty) – may be cross-examined wrt any immoral, vicious, or criminal act that might make him unworthy of belief
o Cannot inquire into it if witness was acquitted. Can inquire into it if witness was never convicted or even prosecuted. Counsel must have GF belief that witness did it before asking.
Prior Admissions
• 801(d)(2) – admissions by party-opponent (meaning admissions by Π or Δ, cannot be used against co-Δ unless cross-claims)
o stmt offered against Δ & stmt was admission by Δ, adopted by Δ (silence incl), was made by authorized agent of Δ, e’ee of Δ w/i scope of e’mpt
o stmt by co-conspirator requires minimal independent evidence of conspiracy
Opionion & reputation evidence WRT trustworthiness
• Limited to issue of trustworthiness
o Can ask other witnesses about reputation of witness as untrustworthy
o Can ask other witnesses about their opinion about witness’s trustworthiness 608(a)
Prior ID
(might seem like hearsay b/c you are saying what you once said)
• always admissible for substantive evidence if ID person in lineup after peceiving person, subject to constitutional constraints – 801(d)(1)(C)
Prior Consistent Statement
• cannot preemptively offer to buttress witness
• 801(d)(1)(B) – permits use for rebutting express/implied charge witness has motive to lie
o stmts must precede the date that you allegedly had reason to change your story
Impeachment rules
General rules
• Can impeach own witnesses – 607, can impeach a MIA declarant in same way as if witness – 806
• Witness’s lack of belief in God not admiss for impeachment (except to show bias) 610
• Sensory deficiency (perception, mental capacity, etc.), didn’t understand oath, credibility of expert as to knowledge in field, lack of personal knowledge by lay witness
Testimony
Non-Hearsay Hearsay
may be used for substantive proof OR impeachment o 801(d)(1) – prior stmts by witness (inconsistent stmt but under oath in formal proceeding, consistent for purpose of rebutting improper motive, ID) o 801(d)(2) – admissions by one of the parties in the case (when Δ or one of Δ’s agents admits that the did something wrong)
• Hearsay exceptions – declarant unavailable – 804
o Former testimony (given as witness in hearing or deposition IF pty against whom testimony now offered (or in a civil hearing, a predecessor in interest) had opportunity and similar motive to develop the testimony by cross – 804(b)(1)
o Dying declaration ((1) in homicide cases and civil cases only, (2) must actually think you are dying, (3) limited to stmt about cause of death) – 804(b)(2)
o Statement against interest – 804(b)(3)
o Stmt of personal family history – 804(b)(4)
o Stmts made by declarant now unavailable b/c of wrongdoing of Δ – 804(b)(6)
o Unavailable = ct ruling letting you invoke privilege, persistent refusal to testify, memory fails, physically ill, mentally ill, death, and has been unable to secure a deposition – burden on proponent to demonstrate unavailability
Not hearsay at all b/c TMA or OCS is not offered for TMA
• Not hearsay → may be used for substantive proof or impeachment
o Stmts with independent legal significance (oral Ks, legal relationships, slanderous stmts, threats, perjury, fraud, evidence presented to show state of mind of listener, stmts presented to show notice/knowledge by listener in torts suits, possession of written materials used to show something besides truth of contents) 801(c)
Impeachment of a character witness
• May cross & ask them about specific acts that are pertinent to trait that character witness gave opinion or reputation evidence about – but not allowed to offer EE – 405(a)
o “Did you know about the time that …”
Testimony in prior formal proceedings
• 804(b)(1) – exception to hearsay but requires witness be unavailable
o admissible for impeachment & for substantive evidence
Recorded Recollection
803(5) – requires foundation
o may be read into evidence but not received as exhibit
o stmt written/adopted by witness recorded when fresh in mind & witness now has insufficient recollection
o foundation = you don’t remember anything after reading it + stmt was accurate when written – I don’t remember what X said, but I wrote it down accurately.
