Evidence - Impeachment Part 1 Flashcards
Impeachment Evidence
Evidence offered to attack credibility of witness. This impeachment evidence is not offered to prove a substantive fact, but rather solely to discredit the witness. It may be admitted for that limited purpose.
The party doing the impeaching wants to show the jury this witness shouldn’t be believed.
Who Can Impeach and Who Can Be Impeached?
Any party can impeach any witness, regardless of who called it. You can impeach your own witness. You might want to do that if they say something harmful to your case unexpectedly. If they go off the deep end, you can try to recover by casting doubt on their testimony. No limitations.
Most of the time you are impeaching the opponent’s witness.
Impeachment is separate from all the other rules, especially substantive character evidence. Say you are prosecutor in murder case. D chooses to testify on his own behalf. He says he didn’t do it. Before testifying, prosecution couldn’t initiate character evidence (violent tendencies).
Who is a Witness?
Testifying witnesses are not the only ones who can be impeached. Hearsay declarants can be impeached to the same extent they would have in court (only after the hearsay statement came in under an exception). That person may not testify but their credibility is still at issue, so they’re fair game for impeachment. Any impeachment method can be used against them too.
Forms of Impeachment
2 basic forms
1) Examination of Witness = you ask them about the facts and impeach them while on the stand. sometimes called “intrinsic impeachment” but can also happen on direct, cross, or redirect
2) Extrinsic evidence = involves introducing outside evidence of the impeaching facts, like by calling other witnesses or docs that relate to the impeached witness’ credibility. Sometimes limited based on method of impeachment.
Laying Foundation = to confront the witness about the fact that impeaches them and give them opportunity to explain it
Impeachment Methods (List)
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
Impeachment Method 1: Prior Inconsistent Statements
Prior inconsistent statements = this witness said X and now they’re saying Y. Their story changed and therefore shouldn’t believe them now.
Rule: Any witness can be impeached by showing on some prior occasion they made a statement inconsistent with current testimony.
This intersects with hearsay. Remember impeachment isn’t brought in to prove a fact in the case, but rather for impeaching the witness. But what if you really want to bring it in for truth? Can it come in as substantive evidence too? NO, it’s admissible ONLY to impeach. You would have to do a hearsay analysis if it’s offered to prove something in the statement itself. Remember there is a hearsay exclusion for prior testifying witnesses’ inconsistent statements UNDER OATH. So that’s a trick you might get baited by.
Using Extrinsic Evidence to Prove Prior Inconsistent Statement
Say you are impeaching a witness and you ask: “didn’t you say earlier it was a Ford Mustang, not Explorer?” and the witness says “nope, I’ve always said it was a Ford Mustang” what do you do? Must use extrinsic evidence. Must call the cop to the stand or police report to impeach that witness.
Extrinsic Evidence is allowed if the prior inconsistent statement relates to a non-collateral matter. Basically just means extrinsic evidence is allowed for inconsistent statements if that statement is relevant to the case AND you must establish a proper foundation.
Non-collateral matter is easy here because the type of car that ran the stop sign is very relevant. But what if it’s about an irrelevant (collateral) matter? Like that the witness was getting ice cream that day, but then later said she was buying a phone. Nope, can’t bring in extrinsic evidence because it’s collateral (irrelevant).
Foundation Requirement = witness must be given some opportunity to explain or deny the prior inconsistent statement. You’re not required to show the witness the inconsistency before introducing extrinsic evidence. But gotta 1) give opportunity for the witness to explain or deny it AND 2) must give the adverse party an opportunity to examine the witness (and counteract what you are doing).
The foundation requirement was met by asking Whitney about the inconsistent statement before introducing the extrinsic evidence. But the opposing party would then need to be given a chance to question her about it (and maybe recover). BUT you could have just shown the extrinsic evidence of the Mustang statement. You didn’t have to first ask her about it. As long as she can contest it later.
Extrinsic evidence requires that the witness MUST be 1) given opportunity to explain or deny the statement AND 2) adverse party given opportunity to examine witness about it. This opportunity may be given BEFORE or AFTER the extrinsic evidence is introduced.
The “explain or deny” requirement has 3 exceptions:
1) when the prior inconsistent statement qualifies as “opposing party’s statement” = if the witness who made the prior inconsistent statement is the opposing party or it qualifies as vicarious statement of the opposing party, don’t need to let them explain or deny. BONUS: these may come in as substantive evidence because they are a hearsay EXCLUSION.
2) “As justice requires” = this is a vague exception where witness testifies but then becomes unavailable and then their prior inconsistent statement is required. You can prove it with extrinsic evidence without having to give them a chance to explain (since they’re unavailable).
3) Hearsay declarant = the person is not testifying and their statement comes in as evidence, which can be impeached even if they’re not in court. If that person contradicted themselves in yet another statement, you can introduce the inconsistent one and don’t need to give them chance to explain or deny (since they are unavailable).
Impeachment Method 2: Bias and Interest
This evidence indicates the witness has a reason to be biased/motivated to slant their testimony. Could be financial, personal interest, prosecutorial deal to get them off easier, a grudge, a reason to fear, or the witness is just an expert being paid by a party.
Extrinsic evidence of bias or interest is usually permitted. Never a collateral matter. BUT there is foundation req.
When impeaching witness for bias, must generally confront them on the stand. Not addressed in FRE. Courts have discretion. But usually yes you can do it as long as you lay foundation and ask them about the bias.
Impeachment Method 3: Sensory Deficiencies
This method is used to show the witness had an inability to observe, remember, or relate something accurately. It can also be used for simple LACK OF KNOWLEDGE on the subject.
Think of a situation where the impeaching evidence reflects poorly on senses or memory. Intoxication too. You can do this when examining the witness or with extrinsic evidence.
