Evidence AMP Set - Impeachment Of Witnesses

Question 1

A witness generally may be impeached with a prior felony conviction if __________.

A The witness is the criminal accused, and the conviction stems from a juvenile offense

B The conviction was obtained in violation of the witness’s Sixth Amendment rights

C Currently appealing the conviction

Answer 1

C

Under the Federal Rules, a prior conviction may be used to impeach even if the witness is currently appealing the conviction. However, the pendency of the appeal may be shown. Where a prior felony conviction was obtained in violation of the defendant’s Sixth Amendment rights (e.g., to have counsel, to confront witness, etc.), the conviction is generally invalid for all purposes—including impeachment. Juvenile offenses are generally not admissible for impeachment purposes, and are never admissible against a criminal accused. Under the Federal Rules, a judge has the discretion in a criminal case to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence. QUESTION ID: E0009B Additional Learninga

Question 2

If a hearsay declarant’s statement is admitted at trial, do the Federal Rules allow impeachment of that statement even though the declarant is not present?

A Yes, except that the declarant’s statement may not be impeached with evidence of prior inconsistent statements

B No, impeachment is not permitted because the declarant did not testify

C Yes, in the same manner as if the declarant had testified

Answer 2

C

Under Federal Rule 806, the credibility of an unavailable hearsay declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. The unavailable hearsay declarant may be impeached with evidence of her prior inconsistent statement, and the foundational requirement that she must explain or deny her statement does not apply. There is no requirement that a declarant must be present at trial to be impeached. QUESTION ID: E0018B Additional Learning

Question 3

When impeaching a witness with extrinsic evidence of bias, that evidence:

A May be admitted before the witness testifies

B Must be substantively admissible

C Need not be substantively admissible in order to be admitted for impeachment purposes

Answer 3

C

Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. Extrinsic evidence of a witness’s bias prior to the witness’s testimony would not be allowed because of foundational requirements. The party must first ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias. QUESTION ID: E0005B Additional Learning

Question 4

Witness has testified and implicated Defendant in a crime. Defense counsel, believing in good faith that Witness has previously committed perjury when testifying in an unrelated case, asks Witness whether he has ever perjured himself. Witness denies ever committing perjury. Defense counsel may now:

A Call another individual to testify about Witness’s prior act of perjury

B Introduce a transcript of Witness’s prior testimony from the unrelated case into evidence

C Continue the cross-examination in the hope that Witness will change his answer

D Introduce an entry from Witness’s journal in which Witness admits committing the act of perjury

Answer 4

C

If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry. Eventually, the cross-examiner must accept the witness’s answer and move on.

Extrinsic evidence (e.g., calling another witness or introducing a record) of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. QUESTION ID: E0011B Additional Learning

Question 5

A court may never disallow, for impeachment purposes, __________ prior conviction involving __________.

A Any; dishonesty

B A recent; dishonesty

C A recent; moral turpitude

Answer 5

B

The trial court never has the discretion to disallow impeachment by evidence of a recent prior conviction involving dishonesty or a false statement. This applies to misdemeanors and felonies, as long as dishonesty or a false statement is involved. Note that not all crimes of moral turpitude involve dishonesty. The statement that the court may never disallow for impeachment purposes, any prior conviction involving dishonesty is incorrect because the court may disallow impeachment by evidence of such a conviction, if it is too remote in time. (The court may also disallow a felony conviction where the judge finds that its probative value as impeachment evidence is substantially outweighed by the danger of unfair prejudice, but this is only permissible where the felony does not involve dishonesty or a false statement.) QUESTION ID: E0010B Additional Learning

Question 6

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act __________.

A resulted in a criminal conviction

B affects the witness’s character in some way

C is corroborated by extrinsic evidence

D is probative of truthfulness

Answer 6

D

Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief. Extrinsic evidence of “bad acts” is not permitted. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. A witness may be impeached by her prior act of misconduct even if the act did not result in a criminal conviction. However, the act of misconduct must be probative of truthfulness. QUESTION ID: E0012 Additional Learning

Question 7

A witness’s character for truthfulness may be impeached by certain prior criminal convictions.
Which of the following convictions is most likely to be found admissible?

A Misdemeanor involving dishonesty where 12 years have passed since conviction and release from confinement.

B Felony involving dishonesty where 18 years have passed since conviction and release from prison.

C Felony not involving dishonesty where eight years have passed since conviction and release from prison.

D Misdemeanor not involving dishonesty where six months have passed since conviction and release from confinement.

Answer 7

C

A felony not involving dishonesty where eight years have passed since conviction and release from prison will likely be admissible. A witness’s character for truthfulness may be attacked by any felony, whether or not it involves dishonesty or a false statement. A conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, only eight years have passed. Therefore, the prior conviction is not too remote. A misdemeanor not involving dishonesty where six months have passed since conviction and release from prison is inadmissible, because a misdemeanor conviction may be used to impeach the witness only if it involved dishonesty or a false statement. A felony involving dishonesty where 18 years have passed since conviction and release from prison will likely be inadmissible. Generally, a witness may be impeached with any prior felony conviction. However, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, the conviction is too remote. A misdemeanor involving dishonesty where 12 years have passed since conviction and release from prison will likely be inadmissible. A witness’s character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. However, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, the conviction is too remote. QUESTION ID: E0007 Additional Learning

Question 8

When is a party not allowed to bolster the testimony of his witness?

A When the bolstering evidence shows that the witness made a prior identification of a person.

B When the party anticipates that the witness will be impeached.

C When the bolstering evidence shows that the witness made a timely complaint.

D When the witness has been impeached.

Answer 8

B

A party may not bolster or accredit the testimony of his witness if he merely anticipates that the witness will be impeached. Rather, he may only bolster the witness’s testimony once the witness has been impeached. There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct. QUESTION ID: E0002 Additional Learning

Question 9

A witness may be impeached with evidence of her prior felony conviction even if:

A The witness is the accused in a criminal case, and the prior conviction is based on a juvenile offense

B She is currently appealing the conviction

C The conviction was obtained in violation of the witness’s Sixth Amendment rights

Answer 9

B

Under the Federal Rules, a prior conviction may be used to impeach even if the witness is currently appealing the conviction. However, the pendency of the appeal may be shown. Juvenile offenses are generally not admissible for impeachment purposes, and are never admissible against a criminal accused. Under the Federal Rules, a judge has the discretion in a criminal case to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence. Where a prior felony conviction was obtained in violation of the defendant’s Sixth Amendment rights (e.g., to have counsel, to confront witness, etc.), the conviction is generally invalid for all purposes—including impeachment. QUESTION ID: E0009A Additional Learning

Question 10

Prior statements by a witness that are consistent with a witness’s trial testimony are __________ admissible.

A Sometimes

B Always

C Never

Answer 10

A

Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes admissible to rehabilitate a witness who has been impeached. Where the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), counsel may introduce into evidence a prior consistent statement made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some noncharacter ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility. However, a prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct. Under the Federal Rules of Evidence, a prior consistent statement that is admissible to rehabilitate a witness’s credibility is also admissible as substantive evidence of the truth of its contents. (Note that prior consistent statements also may be admissible if they fall within some hearsay exception.) QUESTION ID: E0016A Additional Learning

Question 11

Which of the following is a permissible method of impeaching a witness?

A Asking a criminal defendant about being convicted for burglary when he was 13 years old.

B Asking the witness in good faith during cross-examination if he cheated on the bar exam.

C Calling the witness’s former supervisor to testify that the witness once stole from the cash register.

D Introducing a record of judgment showing that the witness was convicted of misdemeanor public intoxication two years ago.

Answer 11

B

Asking a witness in good faith if he cheated on the bar exam is permissible because it involves an act that is probative of truthfulness. Federal Rule 608 permits inquiry into a witness’s prior acts of misconduct if the act of misconduct is probative of truthfulness (i.e., is an act of deceit or lying). The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about. Calling the witness’s former supervisor to testify that the witness once stole from the cash register is not a permissible method of impeachment. Although a witness may be asked about his prior acts of misconduct on cross-examination, extrinsic evidence of such acts is not allowed. A party may not ask a criminal defendant about being convicted for burglary when he was 13 years old because it concerns a juvenile adjudication. Juvenile offenses are generally not admissible for impeachment purposes (with certain exceptions for witnesses other than the accused in criminal cases). A record of judgment of a witness’s two-year-old conviction for misdemeanor public intoxication would not be admissible to impeach the witness. Certain prior convictions are admissible for impeachment purposes, but this does not include misdemeanors that do not involve dishonesty or a false statement. Public intoxication does not involve dishonesty or a false statement. QUESTION ID: E0017 Additional Learning

Question 12

Before a prior inconsistent statement can be proved by extrinsic evidence, two requirements must be met. They are:

A Foundation; bias

B Relevance; the witness’s lack of credibility

C Foundation; relevance

Answer 12

C

Under the Federal Rules, an inconsistent statement may be proved by either cross-examination or extrinsic evidence. To prove the statement by extrinsic evidence, certain requirements must first be met: (i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case; i.e., it cannot be a collateral matter. QUESTION ID: E0004B Additional Learning

Question 13

Character Witness provides opinion and reputation testimony that Defendant is an honest person. Prosecutor knows that Defendant embezzled money from his previous job.
Under the Federal Rules, how may Prosecutor impeach Character Witness’s testimony?

A Only by asking if Character Witness “knows” that Defendant embezzled money from his previous job

B By asking if Character Witness “has heard” OR “knows” that Defendant embezzled money from his previous job

C A character witness may never be impeached

Answer 13

B

When a character witness testifies to the good character of another (e.g., a defendant), the witness may be cross-examined regarding the basis of his statement that the defendant’s character is good. Under the Federal Rules, questions in the form, “Do you know . . . ?” and “Have you heard . . . ?” would both be proper to impeach a character witness. Note: Many state courts do not allow opinion evidence (“Do you know . . . ?”), but this type of questioning is authorized under the Federal Rules. QUESTION ID: E0013B Additional Learning

Question 14

Under the Federal Rules, a party cannot impeach a witness by showing that the witness has __________.

A a misdemeanor fraud conviction from two years ago

B a poor memory

C bias against a party

D a violent disposition

Answer 14

D

Showing that the witness has a violent disposition is not proper impeachment evidence. The purpose of impeachment is to attack the credibility of a witness, not to show that the witness has other bad traits. A witness may be impeached with evidence of his sensory deficiencies (e.g., a poor memory). This involves showing that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross-examination or by the use of extrinsic evidence. A witness’s character for truthfulness may be impeached by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. A misdemeanor fraud conviction from two years ago would be considered a crime of dishonesty. This conviction also meets the remoteness limitation because it is less than 10 years old. Evidence that a witness is biased or has an interest in the outcome of a suit is a valid method of impeachment, as it tends to show that the witness has a motive to lie. QUESTION ID: E0014 Additional Learning

Question 15

On cross-examination of a witness, defense counsel asks the witness about a prior bad act. The witness denies committing the act. Defense counsel may:

A Ask the court to take judicial notice of the prior bad act

B Continue the cross-examination in good faith in the hope that the witness will change his answer

C Prove up the prior bad act through extrinsic evidence

Answer 15

B

If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. A court may not take judicial notice of a prior bad act. QUESTION ID: E0011A Additional Learning

Question 16

Impeachment of a witness is primarily concerned with:

A Attacking the witness’s credibility

B Exposing the witness’s bad character for any trait at issue in the case

C Showing that the witness’s testimony is irrelevant

Answer 16

A

Impeachment involves attacking the credibility of the witness. This can be done by cross-examining the witness or by presenting extrinsic evidence. Impeachment is concerned only with credibility, and not the witness’s bad character for any trait at issue in the case. Sometimes a witness may be impeached by evidence of bad character for truthfulness to show that the witness would lie under oath. However, impeachment is not concerned with other character traits (e.g., character for violence). Character evidence, which is separate from impeachment, may be used for this purpose in certain circumstances to prove that a party had a propensity to act in a certain way (e.g., violently). Relevance is concerned with the content of evidence. Impeachment, on the other hand, is concerned with the credibility of the testifying witness. QUESTION ID: E0001A Additional Learning

Question 17

If more than 10 years have passed since the date of conviction or release from confinement, a conviction is __________ admissible as impeachment evidence.

A Never

B Generally not

C Generally still

Answer 17

B

Under the Federal Rules, a conviction is generally not admissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Note: This is not an absolute rule. In extraordinary circumstances, such convictions can be admitted, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party is given notice that the conviction is to be used as impeachment. QUESTION ID: E0019C Additional Learning

Question 18

Under the Federal Rules, a party may impeach a witness __________.

A only if the witness gave damaging surprise testimony

B even if he called the witness himself

C only if the witness is hostile

D only if the witness is an adverse party

Answer 18

B

Under the Federal Rules of Evidence, a witness may be impeached by any party, even if the party called the witness himself. The traditional rule was that a party could impeach his own witness only if the witness: (i) was an adverse party, (ii) was hostile, (iii) was one required to be called by law, or (iv) gave damaging surprise testimony. The Federal Rules have removed these requirements. QUESTION ID: E0003 Additional Learning

Question 19

Generally speaking, a party may bolster the testimony of his own witness:

A If he anticipates his witness will be impeached

B Never

C After the witness has been impeached

Answer 19

C

A party may not bolster or accredit the testimony of his witness if he merely anticipates that the witness will be impeached. Rather, he may bolster the witness’s testimony only once the witness has been impeached. (Never is thus incorrect.) There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Furthermore, evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct. QUESTION ID: E0002A Additional Learning

Question 20

Under what circumstances do the Federal Rules permit cross-examination of a witness about a prior act of misconduct?

A Only where the act is criminal in nature

B When the act is corroborated by extrinsic evidence

C Only where the act is probative of truthfulness

Answer 20

C

Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). The act need not be criminal in nature. Extrinsic evidence of “bad acts” is not permitted. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. QUESTION ID: E0012A Additional Learning

Question 21

A witness may be impeached by certain prior criminal convictions.
Under the Federal Rules, which of the following convictions will be admissible to impeach? (Assume that the date given is the later of the following: the date of conviction or the date of release from confinement imposed for the conviction.)

A A felony not involving dishonesty from 12 years ago.

B A misdemeanor involving dishonesty from eight years ago.

C A misdemeanor not involving dishonesty from nine months ago.

D A felony involving dishonesty from 25 years ago.

Answer 21

B

A misdemeanor involving dishonesty from eight years ago would most likely be admissible to impeach a witness. A witness’s character for truthfulness may be attacked (impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. This conviction also meets the remoteness limitation because it is less than 10 years old. A felony not involving dishonesty from 12 years ago would not be admissible to impeach a witness. While a witness’s character for truthfulness may be attacked by any felony, regardless of whether it involves dishonesty or a false statement, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Therefore, this conviction would likely not be admitted due to its remoteness. A misdemeanor not involving dishonesty from nine months ago would not be admissible to impeach a witness. Unlike felonies, only misdemeanors involving dishonesty or a false statement may be used for impeachment purposes. A felony involving dishonesty from 25 years ago would not be admissible to impeach a witness. A conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Therefore, this conviction would likely not be admitted due to its remoteness, even though it involves dishonesty. QUESTION ID: E0006 Additional Learning

Question 22

At trial, Witness states, “I was at home eating cashews when I heard a gunshot, looked out my window, and saw Defendant holding a pistol.”
Which of the following may not be used by Defendant to impeach Witness?

A Witness’s long-standing personal feud with Defendant.

B Witness’s statement on the night in question that he hadn’t heard anything unusual.

C Witness’s deafness.

D Testimony from a police officer that, on the night in question, Witness said he had been eating peanuts.

Answer 22

At trial, Witness states, “I was at home eating cashews when I heard a gunshot, looked out my window, and saw Defendant holding a pistol.”
Which of the following may not be used by Defendant to impeach Witness?

A Witness’s long-standing personal feud with Defendant.

B Witness’s statement on the night in question that he hadn’t heard anything unusual.

C Witness’s deafness.

D Testimony from a police officer that, on the night in question, Witness said he had been eating peanuts.

Question 23

Under what circumstances is a prior consistent statement of a witness admissible?

A When the witness has been impeached by evidence of a prior act of misconduct bearing on truthfulness

B When the witness has been impeached by a charge that the witness is lying because of some motive, and the prior consistent statement was made before that motive existed

C When the witness has been impeached with evidence of a prior criminal conviction

Answer 23

B

Where the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), counsel may introduce into evidence a prior consistent statement made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some noncharacter ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility. However, a prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions, acts of misconduct, or reputation for untruthfulness. Under the Federal Rules of Evidence, a prior consistent statement that is admissible to rehabilitate a witness’s credibility is also admissible as substantive evidence of the truth of its contents. (Note that prior consistent statements also may be admissible if they fall within some hearsay exception.) QUESTION ID: E0016B Additional Learning

Question 24

Defendant is charged with battery after a bar fight. Prosecutor knows that Defendant was also convicted of domestic violence last year.
Under the Federal Rules, if Character Witness testifies that he believes Defendant is a peaceful person and that Defendant has a good reputation for peacefulness, Prosecutor:

A May ask Character Witness only if he personally knows about Defendant’s domestic violence conviction

B May ask Character Witness whether he personally knows of, or has heard about, Defendant’s domestic violence conviction

C May not cross-examine Character Witness

Answer 24

B

Prosecutor may ask Character Witness whether he personally knows of, or has heard about, Defendant’s domestic violence conviction. When a character witness testifies to the good character of another (e.g., a defendant), the witness may be cross-examined regarding the basis of his statement that the defendant’s character is good. Under the Federal Rules, questions in the form, “Do you know . . . ?” and “Have you heard . . . ?” would both be proper. Note: Many state courts do not allow opinion evidence (“Do you know . . . ?”), but this type of questioning is authorized under the Federal Rules. QUESTION ID: E0013C Additional Learning

Question 25

A witness has three prior convictions: one for misdemeanor fraud from seven years ago; one for felony arson from 12 years ago; and one for misdemeanor battery from nine months ago. Which is most likely to be admissible under the Federal Rules?

A Misdemeanor battery from nine months ago

B Felony arson from 12 years ago

C Misdemeanor fraud from seven years ago

Answer 25

C

A misdemeanor fraud conviction from seven years ago would most likely be admissible to impeach a witness. A witness’s character for truthfulness may be attacked (impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. This conviction also meets the remoteness limitation because it is less than 10 years old. A felony arson conviction from 12 years ago would not be admissible to impeach a witness. While a witness’s character for truthfulness may be attacked by any felony, regardless of whether it involves dishonesty or a false statement, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Therefore, this conviction would likely not be admitted due to its remoteness. A misdemeanor battery conviction from nine months ago would not be admissible to impeach a witness. Unlike felonies, only misdemeanors involving dishonesty or a false statement may be used for impeachment purposes. Battery is not a crime that involves dishonesty or a false statement. QUESTION ID: E0006A Additional Learning

Question 26

Under the Federal Rules, which of the following evidence is not a proper ground for impeachment?

A Evidence that the witness is biased against a party

B Evidence that the witness has a violent disposition

C A misdemeanor fraud conviction from two years ago

D Evidence that the witness has a poor memory

Answer 26

B

Showing that the witness has a violent disposition is not proper impeachment evidence. The purpose of impeachment is to attack the credibility of a witness, not to show that the witness has other bad traits. A witness may be impeached with evidence of his sensory deficiencies (e.g., a poor memory). This involves showing that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross-examination or by the use of extrinsic evidence. A witness’s character for truthfulness may be impeached by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. A misdemeanor fraud conviction from two years ago would be considered a crime of dishonesty. This conviction also meets the remoteness limitation because it is less than 10 years old. Evidence that a witness is biased or has an interest in the outcome of a suit is a valid method of impeachment, as it tends to show that the witness has a motive to lie. QUESTION ID: E0014A Additional Learning

Question 27

Once a witness __________, the party who called the witness may bolster or accredit the witness’s testimony.

A Looks like he will be impeached

B Has been impeached

C Takes the witness stand

Answer 27

B

A party may not bolster or accredit the testimony of his witness if he merely anticipates that the witness will be impeached. Rather, he may only bolster the witness’s testimony once the witness has been impeached. Thus, taking the witness stand is not enough. There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct. QUESTION ID: E0002B Additional Learning

Question 28

Who is allowed to impeach a witness under the Federal Rules?

A Only the party who called the witness

B Only the opposing party

C Any party

Answer 28

C

Under the Federal Rules of Evidence, a witness may be impeached by any party, even if the party called the witness himself. The traditional rule was that a party could impeach his own witness only if the witness: (i) was an adverse party, (ii) was hostile, (iii) was one required to be called by law, or (iv) gave damaging surprise testimony. The Federal Rules have removed these requirements. QUESTION ID: E0003B Additional Learning

Question 29

Witness testifies on direct examination that she saw Defendant’s car run a red light. On cross-examination, defense counsel asks Witness, “Didn’t you tell a police officer on a prior occasion that the light was yellow when Defendant drove through?” and Witness admits that she had said that. Defense counsel has:

A Introduced substantive evidence of the witness’s bad character

B Impeached the witness

C Violated the leading question rule

Answer 29

B

Defense counsel has impeached the witness. Impeachment involves attacking the credibility of the witness. This can be done by cross-examining the witness or by presenting extrinsic evidence. Impeachment is concerned only with credibility, and not the witness’s bad character for any trait at issue in the case. Sometimes a witness may be impeached by evidence of bad character for truthfulness to show that the witness would lie under oath. This is not the case here; it is not possible to tell whether Witness is a liar or was mistaken. This is not use of substantive character evidence. A party may use leading questions on cross-examination. Many forms of impeachment are accomplished during cross-examination of the witness. However, leading questions are not necessarily a component of impeachment. QUESTION ID: E0001B Additional Learning

Question 30

Under the Federal Rules, __________ may impeach a witness.

A Only the party who called the witness

B Any party

C Only a hostile party

Answer 30

B

Under the Federal Rules of Evidence, a witness may be impeached by any party, even if the party called the witness himself. The traditional rule was that a party could impeach his own witness only if the witness: (i) was an adverse party, (ii) was hostile, (iii) was one required to be called by law, or (iv) gave damaging surprise testimony. The Federal Rules have removed these requirements. QUESTION ID: E0003A Additional Learning

Question 31

Under the Federal Rules, a showing of the witness’s __________ is a(n) __________ of impeachment.

A Violent disposition; proper

B Sensory deficiency; improper

C Bias against a party; proper

Answer 31

C

Evidence that a witness is biased or has an interest in the outcome of a suit is a proper method of impeachment, as it tends to show that the witness has a motive to lie. Evidence of a witness’s sensory deficiencies (e.g., vision problems) is a proper method of impeachment. This involves showing that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross-examination or by the use of extrinsic evidence. Showing that the witness has a violent disposition is improper impeachment evidence. The purpose of impeachment is to attack the credibility of a witness, not to show that the witness has other bad traits. QUESTION ID: E0014B Additional Learning

Question 32

If a witness tells one story on direct examination, and defense counsel on cross-examination elicits the fact that the witness has given a different account of the same events on a prior occasion, defense counsel has __________ the witness.

A Impeached

B Refreshed the recollection of

C Attacked the character of

Answer 32

A

Defense counsel has impeached the witness. Impeachment involves attacking the credibility of the witness. This can be done by cross-examining the witness or by presenting extrinsic evidence. Impeachment is concerned only with credibility, and not the witness’s bad character for any trait at issue in the case. Sometimes a witness may be impeached by evidence of bad character for truthfulness to show that the witness would lie under oath. This is not the case in these facts; if a witness tells a different account of events on the stand, it is not possible to tell whether the witness is a liar or was mistaken. This is not use of character evidence. Refreshing recollection is a method (usually used on direct examination) in which the attorney allows a witness to review her notes or other documents in order to revive her memory regarding the subject to which she is testifying. This does not involve introducing a prior inconsistent statement to attack the witness’s credibility. QUESTION ID: E0001C Additional Learning

Question 33

Under the Federal Rules, a conviction is usually too remote to be admissible as impeachment evidence, if more than __________ years have passed since the date of conviction or release from confinement.

A 10

B 15

C Five

D Eight

Answer 33

A

Under the Federal Rules, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Note: This is not an absolute rule. In extraordinary circumstances, such convictions can be admitted, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party is given notice that the conviction is to be used as impeachment. QUESTION ID: E0019A Additional Learning

Question 34

In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence.
Which statement regarding the permissibility of extrinsic evidence is false?

A Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.

B The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.

C A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation.

D The prior inconsistent statement must be relevant to the case.

Answer 34

B

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.QUESTION ID: E0004 Additional Learning

Question 35

Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?

A An unavailable hearsay declarant may not be impeached by any method because she is not present at trial.

B An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement.

C An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.

D An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

Answer 35

D

Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant’s credibility is impeached, it may also be rehabilitated. QUESTION ID: E0018 Additional Learning

Question 36

Generally, a party may not bolster the credibility of her own witness unless the witness has already been impeached. The two exceptions to this rule are when the bolstering is relevant to show:

A Timely complaint; truthful character

B Timely complaint; prior identification

C Prior identification; truthful character

Answer 36

B

The general rule is that a party may bolster the witness’s testimony only once the witness has been impeached. There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct. QUESTION ID: E0002C Additional Learning

Question 37

In extraordinary circumstances, a witness’s prior conviction may be admitted for impeachment purposes even if it would usually be excluded for remoteness.
Which of the following is the correct balancing test for the admission of such convictions?

A The conviction must be probative of the witness’s truthfulness.

B The probative value of the conviction must outweigh its prejudicial effect.

C The probative value of the conviction must substantially outweigh its prejudicial effect.

D The conviction must be more probative as to the witness’s truthfulness than any other evidence which the proponent can reasonably produce so that the “interests of justice” will be served by its admission.

Answer 37

C

In extraordinary circumstances, prior convictions that are remote in time can be admitted, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect. Also, the adverse party is given notice that the conviction is to be used as impeachment. Because the prejudicial effect must be “substantially” outweighed, it is not enough that the probative value of the conviction merely outweighs its prejudicial effect. A party may impeach a witness regarding prior acts of misconduct where the act is probative of the witness’s truthfulness. This is not the correct standard for impeachment by prior convictions that are remote in time. There is a “catch-all” hearsay exception that allows otherwise inadmissible hearsay where the evidence is more probative as to that fact than any other evidence which the proponent can reasonably produce so that the “interests of justice” will be served by its admission. This is not the standard for the admission of prior convictions that are remote in time and offered to impeach a witness. QUESTION ID: E0019 Additional Learning

Question 38

Which of the following statements concerning impeachment by “prior bad acts” is false?

A The Federal Rules do not provide for the exclusion of prior bad acts on the basis of remoteness.

B If the witness denies the prior bad act on cross-examination, the cross-examiner may, in good faith, continue the cross-examination in the hope that the witness will change his answer.

C Extrinsic evidence of prior bad acts is permissible where the witness on cross-examination denies committing the bad act.

D The cross-examiner may ask the witness about a prior bad act only if she has a reasonable basis for believing that the witness may have committed the act.

Answer 38

C

Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about. The Federal Rules do not provide guidelines for the exclusion of prior bad acts on the basis of remoteness. Prior convictions, however, must not be too remote. QUESTION ID: E0011 Additional Learning

Question 39

Impeachment by extrinsic evidence is __________ admissible to show the witness’s bias or interest to testify falsely.

A Always

B Never

C Generally not

Answer 39

A

Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid and the judge determines it is not too prejudicial. QUESTION ID: E0005A Additional Learning

Question 40

Character Witness testifies that he believes Defendant is an honest person, and that Defendant has a good reputation for honesty in the community. Opposing counsel seeks to cross-examine Character Witness about: (1) whether he knows that Defendant lied about his taxes last year; and (2) whether he has heard that Defendant lied about his taxes last year. Which of these questions should a court following the Federal Rules of Evidence allow?

A Neither (1) nor (2)

B Only (1)

C Both (1) and (2)

D Only (2)

Answer 40

C

When a character witness testifies to the good character of another (e.g., a defendant), the witness may be cross-examined regarding the basis of his statement that the defendant’s character is good. Under the Federal Rules, questions in the form, “Do you know . . . ?” and “Have you heard . . . ?” would both be proper. Note: Many state courts do not allow such opinion evidence (“Do you know . . . ?”), but this type of questioning is authorized under the Federal Rules. QUESTION ID: E0013A Additional Learning

Question 41

Extrinsic evidence may be used to prove up a prior inconsistent statement if the statement:

A Casts doubt on the witness’s credibility

B Is directly relevant to the issues in the case

C Is about a collateral matter

Answer 41

B

To prove a prior inconsistent statement by extrinsic evidence, the statement must be directly relevant to issues in the case. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility, i.e., it cannot be about a collateral matter. QUESTION ID: E0004A Additional Learning

Question 42

In order to impeach __________ with a felony conviction not involving dishonesty, the government must show that the conviction’s probative value outweighs its prejudicial effect.

A Any witness

B The accused in a criminal case

C A witness other than the accused

Answer 42

B

If, in a criminal case, the witness being impeached is the accused, the felony conviction will be admitted only if the government shows that its probative value as impeachment evidence outweighs its prejudicial effect. In the case of any witness other than the accused in a criminal case, any felony conviction is admissible, but the court retains discretion under Rule 403 to exclude it if its probative value as impeachment evidence is substantially outweighed by the danger of unfair prejudice. This test favors admission of the evidence, while the test for impeaching the criminal accused with a felony conviction favors exclusion. QUESTION ID: E0008A Additional Learning

Question 43

In which of the following circumstances may a witness be impeached with her prior felony conviction?

A Where the witness is currently appealing the conviction.

B Where the witness is the criminal accused and the prior conviction is based on a juvenile offense.

C Where the conviction was obtained in violation of the witness’s Sixth Amendment rights.

D Where the witness received a pardon for the conviction and has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year.

Answer 43

A

Under the Federal Rules, a prior conviction may be used to impeach even if the witness is currently appealing the conviction. However, the pendency of the appeal may be shown. Juvenile offenses are generally not admissible for impeachment purposes, and are never admissible against a criminal accused. Under the Federal Rules, a judge has the discretion in a criminal case to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence. Where a prior felony conviction was obtained in violation of the defendant’s Sixth Amendment rights (e.g., to have counsel, to confront witness, etc.), the conviction is generally invalid for all purposes—including impeachment. Although a conviction may sometimes be used to impeach even though the witness was pardoned for that crime, under the Federal Rules, a prior conviction may not be shown if the pardon was based on innocence or if the person pardoned has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year. QUESTION ID: E0009 Additional Learning

Question 44

Character Witness testifies that Defendant is a very honest person.
Under the Federal Rules of Evidence, Plaintiff may impeach Character Witness by asking which, if any, of the following questions?

A Neither “Do you know that Defendant lied on his job application?” nor “Have you heard that defendant lied on his job application?”

B Only “Do you know that Defendant lied on his job application?” and NOT “Have you heard that Defendant lied on his job application?”

C Only “Have you heard that Defendant lied on his job application?” and NOT “Do you know that Defendant lied on his job application?”

D Both “Do you know that Defendant lied on his job application?” and “Have you heard that Defendant lied on his job application?”

Answer 44

D

When a character witness testifies to the good character of another (e.g., a defendant), the witness may be cross-examined regarding the basis of his statement that the defendant’s character is good. Under the Federal Rules, questions in the form, “Do you know . . . ?” and “Have you heard . . . ?” would be proper opinion and reputation evidence, respectively. Many state courts do not allow such opinion evidence (“Do you know . . . ?”), but this type of questioning is authorized under the Federal Rules.QUESTION ID: E0013 Additional Learning