Evidence - Impeachment Flashcards
Impeachment
Evidence offered to attack the credibility of a witness
*Not admitted to prove a substantive fact - offered solely to discredit a witness
Who can Impeach and Who can be Impeached?
Any party can impeach any witness, regardless of who called the witness
Testifying witnesses are not the only ones who can be impeached
- a hearsay declarant can also be impeached - their credibility is still in issue
How to Impeach - 2 basic forms
(1) Examination of the Witness
- you ask the witness about the facts that impeach them while the witness is on the stand
(2) Extrinsic Evidence
- involves introducing outside evidence of the impeaching facts
- usually done by calling a different witness or introducing documents that relate to the witness’s credibility
Impeachment Methods
(1) Prior Inconsistent Statements
(2) Bias and Interest
(3) Sensory Deficiencies
(4) Contradiction
(5) Reputation/Opinion Evidence of Untruthfulness
(6) Prior Criminal Convictions
(7) Prior Bad Acts
Prior Inconsistent Statements
Rule: Any witness can be impeached by showing that on some prior occasion, they made some statement that is inconsistent with their current testimony - doesn’t have to be under oath
How to prove an inconsistent statement:
(1) Cross-examination (didn’t you tell the police…)
(2) Extrinsic evidence (if proper foundation is laid and the statement is relevant to some issue in the case, i.e., cannot be a “collateral matter”
Using Extrinsic to Prove Prior Inconsistent Statement
- Generally, extrinsic evidence of the witness’s prior inconsistent statement is admissible only if: (Foundation)
(1) the witness is, at some point, given an opportunity to explain or deny the allegedly inconsistent statement; and
(2) the adverse party is, at some point, given an opportunity to examine the witness about the statement
Non-collateral matter: a matter that is relevant to the case
Exceptions to opportunity to explain or deny requirement:
(1) when the prior inconsistent statement qualifies as an opposing party’s statement
(2) if justice so requires
(3) when the person being impeached is a hearsay declarant
Bias and Interest
Evidence that indicates that the witness has a reason to slant their testimony in favor of one side or the other
Extrinsic evidence of bias or interest is usually permitted - Foundation:
- when impeaching a witness with evidence of bias or interest, you generally have to confront the witness with the alleged bias while they’re on the stand
Sensory Deficiencies
Showing the witness’s inability to observe, remember, or relate something accurately
Extrinsic evidence permitted
ex: problems with vision, hearing, memory, or too much intoxication
Contradiction
Involves proving a fact that contradicts something the witness has said on the stand
Basically saying ““because this fact is true, some portion of your testimony could not have been true”
The witness insists that his testimony was accurate. Can you ask the witness about these discrepancies? - YES - you can try to get them to admit that they said something false
If the witness sticks to their story, can you use extrinsic evidence to prove the existence of the contradictory fact?
- Extrinsic evidence is not allowed if the contradictory fact is collateral
- Collateral: This means that the fact has no significant relevance either to the issue of the witness’s credibility or to the merits of the case
So can’t bring in expert to testify about the tree - its collateral - But can bring in a police officer to testify that the light was not working - non-collateral (it matters) and contradictory (light could not have been red bc not working)
Reputation/Opinion Evidence of Untruthfulness
Involves calling a second witness - a character witness - who provides reputation or opinion testimony about the impeached witness’s untruthful character
Extrinsic evidence MUST be used
- Can do this without confronting the witness - can just call the character witness to testify about the witness’s untruthful character
Prior Crimina Convictions
2 types of crimes that can be used to impeach:
(1) Any crime that involved dishonesty or false statement (any witness)
- Interpreted very narrowly - only where falsification or lying is an element of the crime (perjury, forgery, criminal fraud, embezzlement, etc.)
- The judge has no discretion to exclude these to impeach - 403 won’t work here - judge has to let it in (unless the conviction is too old)
(2) Any Felony conviction
- Assault, drunk driving, murder, drug dealing, kidnapping, etc. - any crime that was punishable by death or by imprisonment for more than 1 year
- Major difference: judge has discretion to exclude them - Judge will use usual 403 balancing test - which favors admitting
- Criminal Case and witness is the defendant
More careful here - greater risk that the jury will be persuaded - Judge uses a stricter balancing test which favors exclusion: Probative Value of the conviction must outweigh the prejudicial effect to the defendant
If the conviction fits into one of these categories - need to look for staleness
- 10 years from later of date of the conviction or date of release from prison - Conviction generally won’t be admitted
*You can impeach a witness with a conviction even if an appeal is pending
- The opponent can inform the jury about the appeal, but you can still impeach
No restrictions on extrinsic evidence here
- No need to confront witness before introducing the record
Prior Bad Acts
While examining the witness, we can ask them about any of their own specific misconduct that is probative of truthfulness
Literally anything they’ve done in the past that reflects poorly on their character for truthfulness, regardless of how long ago it occurred
- You can ask them about it as long as you have a good faith basis for believing they did it
Extrinsic evidence of the bad act is NEVER allowed
- Impeachment with prior bad acts can be done only with intrinsic evidence - it can happen only on examination of the witness
- If the witness denies the act, you can’t bring in evidence to prove it - have to accept the answer and move on
Bolstering
Bolstering: an attempt to strengthen or build up a witness’s credibility before it has been attacked
Rule: Bolstering is not permissible
- unless the witness has been impeached, you generally can’t bolster a witness’s credibility
Rehabilitation
3 major ways to rehabilitate a witness (witness includes hearsay declarants)
(1) Let impeached witness clarify/explain the impeaching facts
(2) Show witness’s good character for truthfulness
- Can only introduce evidence of a witness’s good character for truthfulness if the witness was impeached with evidence of their general bad character for truthfulness
- Remember we have 3 methods of impeachment that are solely based on showing the witness’s general bad character for truthfulness:
- Reputation or opinion evidence of untruthfulness
- Prior criminal convictions
- Prior acts of misconduct involving untruthfulness
(3) Introduce Prior Consistent Statement
- You cannot introduce a witness’s prior consistent statement just to show their pattern of generally saying the same thing
- Usually, prior consistent statements won’t be allowed because all they do is bolster the witness
- BUT, sometimes a witness’s prior consistent statement will in fact tend to rehabilitate the witness:
—–Recall Hearsay exclusion for prior consistent statements that rehab the witness - this statement will only be allowed if it actually rehabilitate the witness - if it has a special tendency to show they were telling the truth
—–Another scenario in which a prior consistent statement might rehabilitate the witness is when the witness has been attacked on some other specific ground - like faulty memory
