Evidence - Impeachment Part 2 Flashcards
Impeachment Method 4: Contradiction
This is proving a fact that contradicts something the witness has said on the stand. Basically “because this fact is true, something you are saying can’t be true at the same time”.
If witness admits the falsehood, that establishes the contradictory fact. That’s all. BUT the problem is when the witness sticks to the story, can you use extrinsic evidence to prove the truth of your side? Only if it’s not collateral. Basically it must be relevant to the case or the witness’ credibility, then you can bring in extrinsic evidence.
Example: witness says he was leaning on oak tree, you bring in horticulturalist to prove it was maple, nope that’s not viable, it’s collateral, no one cares, doesn’t even really hurt the witness’ credibility. The witness doesn’t know trees. Who cares. You can ask him about the tree discrepancy… but who cares lol, not gonna take the jury’s time on this with extrinsic evidence.
But remember - could D bring out a cop to say the traffic light wasn’t functioning? YES. It’s not collateral and it is contradictory.
Impeachment Method 5: Reputation/Opinion Evidence of Untruthfulness
These all involve impeaching the witness for bad character for truthfulness and therefore can’t be trusted. Impeachment method 5 is impeachment with reputation or opinion evidence for untruthfulness.
This involves calling a 2nd witness to say the 1st witness is untruthful. It’s the character witness summing up what they know or have heard to say this 1st witness is a liar. There are NO restrictions on EXTRINSIC evidence. Because you can’t accomplish this method without extrinsic evidence. You can do this without confrontation of the impeached witness because asking “Winona are you actually a liar?” is a waste of everyone’s time.
Impeachment Method 6: Prior Criminal Convictions
This is another way to show poor character for TRUTHFULNESS. Only 2 types of crimes can be used for this.
1) Any witness can be impeached for any crime involving dishonesty or false statement. Very narrow category. Falsification/lying must be an ELEMENT of the crime. Stuff like fraud or perjury or false pretenses. Judge has NO discretion to exclude the introduction of these. Can’t use 403 balancing test either. We tell the judge they MUST do something. LIMITATION: if it’s too old, it won’t come in
2) Any felony conviction for a crime not involving false statement. Murder, arson, anything punishable by death or imprisonment for over a year. Judge DOES have discretion to exclude. Why does that make sense? Because the whole point is to show bad character for TRUTHFULNESS, so someone in jail for negligent manslaughter may have that barred by a judge. Here, the 403 balancing test applies and judge has discretion. Often, the conviction will come in.
But if it’s a criminal case and witness being impeached is D, it’s less likely. Greater risk that jury will be swayed by prior conviction. Special stricter balancing test favors excluding the evidence. The probative value of the conviction must outweigh the prejudicial effect to D.
Time limits: if the crime falls into either of the 2 buckets, old convictions won’t be allowed if more than10 years have passed since either 1) date of conviction or 2) date of release from prison, whichever is the later date, the conviction won’t be admitted. There is a small exception where it could still come in under extreme conditions.
Methodical Approach to Questions involving Prior Criminal Convictions
1) Ask: did the conviction involve dishonesty or a false statement? Like forgery or fraud? Court has no discretion to exclude. If it didn’t, ask if it’s a felony. But court could exclude. If criminal D, different balancing test used more opposed to admission.
2) Check time limit. Look for date of conviction or prison release, whichever is later.
You can impeach even if appeal is pending. With all these impeachment methods, ask yourself if there are restrictions for using extrinsic evidence.
Impeachment Method 7: Prior Bad Acts
This is any act that the witness has done that reflects poorly on their truthfulness (including but not limited to convictions). Any lying or dishonesty, like plagiarizing. Even taking a sick day when they weren’t sick. Any good faith basis you have for believing they did it. The judge has the discretion to allow this type of questioning, and can stop it.
REMEMBER: extrinsic evidence of the bad act is NEVER ALLOWED. Only intrinsic evidence is allowed (asking the witness about it). Can’t bring someone else in to prove she cheated one night at poker. Don’t want to waste the jury’s time with a mini-trial.
CAREFUL: “Didn’t you get fired from your last job for forging your boss’ name?” is improper because it references some third person’s opinion/assertion that the witness did commit the act, because the boss would have fired the witness for the forgery. This is a type of extrinsic evidence. You can phrase it like “Didn’t you once forge your boss’ name?” that works. Because that doesn’t bring in the boss’ confirmation. If asked about being arrested, fired, or disciplined for the act, that’s improper extrinsic evidence.
Bolstering
Bolstering = An attempt to strengthen credibility before the witness has been attacked. Bolstering is NOT permitted. Unless they’ve been impeached, you can’t bolster them. Distinguish from rehabilitation, which is recovering their reputation after impeachment.
Remember, witness includes hearsay declarants, who can be rehabilitated.
Ways to Rehabilitate:
1) Let impeached witness clarify
2) Show witness’ good character for truthfulness (as related to impeachment about their bad character for truthfulness)
3) Introduce prior consistent statement (cannot introduce this just to show they have a pattern of saying the same thing, which would be bolstering. but sometimes this rehabilitates the witness in situations. This statement allowed only if it actually rehabilitates the witness. Ex: W testifies D ran red light. Gets impeached for being P’s employee. But W only became employee after already having told a cop after the accident that D ran red light. So the improper motive was not there. It rehabilitates him. So this consistent statement can come in as long as it was made before that motive arose. Also viable when attacked for faulty memory (say W testified that D seemed drunk at the time but it was 2 years ago. Can be rehabilitated with prior consistent statement).
