Evidence - Impeachment

Question 1

IMPEACHMENT Major ways to impeach

Answer 1

1. Prior inconsistent statement
2. Bias or motive to MISREPRESENT
3. Prior conviction
4. Specific acts of misconduct which bear on truthfulness or untruthfulness (these are NOT convictions)
5. Rep or Opinion evdience of untruthfulness

Question 2

prior inconsistent statement only comes in for….

Answer 2

Impeachment by prior inconsistent statement E do not come in as substantive truth, UNLESS Was made under OATH in a LEGAL PROCEEDING. then it is substnatibely truth.

Question 3

Impeachment by prior inconsistent statement E do not come in as substantive truth, UNLESS

Answer 3

Was made under OATH in a LEGAL PROCEEDING. then it is substnatibely truth.

Question 4

extrinsic proof of a prior inconsistent statement is admissible to impeach the witness’s testimony as long as….

Answer 4

As long as the witness is given an opportu- nity to explain or deny the statement, extrinsic proof of a prior inconsistent statement is admissible to impeach the witness’s testimony.

Question 5

prior inconsistent statement is admissible nonhearsay if…

Answer 5

If the witness is subject to cross-exami- nation and the prior inconsistent statement was made under penalty of perjury at a prior trial or proceeding, or in a deposition, it is admissible nonhearsay.

Question 6

A witness is generally “subject to cross-examination” if he…

Answer 6

A witness is generally “subject to cross-examination” if he responds willingly to questions (even if he claims a lack of memory)

Question 7

Bias or motive

Answer 7

Always AMDISSABLE, we will EVEN allow EXTRINSIC EVIDENCE if W denies it!

Question 8

Bias or motive EXTRINSIC E

Answer 8

Allowed if W denies it.

Question 9

Prior conviction

Answer 9

• if prior conv involving dishonesty or false statement (perjury), it can 100% be used to impeach. NO DISCRETION to exclude it.
• if conviction NOT involving dishonesty or false statement
  – IF SERIOUS crime (felony), can use it to impeach but trial judge has discretion to exclude it!
  And if W is criminal D, stricter balancing test that usually favors exclusion.
• If the conviction is too remote, you cannot use it too impeach. Remote = 10 years from date of release of confinement.

Question 10

Specific acts of misconduct which bear on truthfulness or untruthfulness (these are NOT convictions)

Answer 10

May be inquired into ON CROSS-EXAMINATION. NO EXTRINSIC EVIDENCE is allowed if W denies specific act!
BUT, CT has DISCRETION to EXCLUDE if value outwieghed by other considerations.

Trial court is given the discretion to allow counsel to inquire, during cross-examination, about specific instances of bad conduct on the part of the witness which show a lack of credibility.

Question 11

Rep or Opinion evdience of untruthfulness

Answer 11

May be proven by EXTRINSIC EVIDENCE

Question 12

Specific acts of the defendant’s dishonesty may ____, but not ___.

Answer 12

Specific acts of the defendant’s dishonesty may be brought out on cross-exami- nation, but not through the use of extrinsic evidence.

Question 13

Jurors are incompetent to testify only (TWO PLACES)

Answer 13

Jurors are incompetent to testify only (i) before the jury on which they are sitting, and (ii) in post-verdict proceedings as to certain matters occurring during jury deliberations.