Evidence IV-Impeachment

Question 1

What is the primary method of impeachment?

Answer 1

Cross-examination of the witness under attack, although witnesses are
often impeached by extrinsic proof that casts doubt on credibility.

Evidence IV-Impeachment

Evidence>Impeachment
,

Question 2

Is there an ecpetion to accrediting?

Answer 2

Yes, The rule against accrediting is to exception where timeliness may raise an inference on the substantive issues of the case

Evidence IV-Impeachment

Evidence>Impeachment

Question 3

When is Blostering allowed?

Answer 3

A party may not bolster or accredit the testimony of his witness until the witness has been impeached.

Evidence IV-Impeachment

Evidence>Impeachment

Question 4

What is Impeachment?

Answer 4

Impeachment means the casting of an adverse reflection on the veracity of the witness.

Evidence IV-Impeachment

Evidence> Impeachment

Question 5

What is the relevancy requirment for impeachment?

Answer 5

any matter that tends to prove or disprove the credibility of the witness should be admitted here.

Evidence IV-Impeachment

Evidenc>Impeachment

Question 6

Cross-examination and extrinisic evidence

Answer 6

A witness may be impeached either by cross-examination (by eliciting facts from the witness that discredit his own testimony) or by extrinsic evidence (by calling other witnesses or introducing documents that prove the impeaching facts.

Evidence IV-Impeachment

Evidence> Impeachment Methods- cross examination and extrinsic evidence (IV.C)

Question 7

Who can impeach?

Answer 7

The credibility of a witness may be attacked by any party, including the party calling said witness.

Evidence IV-Impeachment

Evidence> Any party may impeach (IV.B)

Question 8

Timely complaint

Answer 8

In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility.

Evidence IV-Impeachment

Evidence> Accrediting or boltering exceptions- timely complaint (IV.A.2.a)

Question 9

What are the exceptions to the rule against accrediting?

Answer 9

The rule against accrediting is to exception where timeliness may raise an inference on the substantive issues of the case.

Evidence IV-Impeachment

Evidence> Accrediting or boltering exceptions (IV.A.2)

Question 10

Prior identification

Answer 10

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.

Evidence IV-Impeachment

Evidence> Accrediting or bolstering exceptions- prior identification (IV.A.2.b)

Question 11

Define a prior inconsistent

statement.

Answer 11

For the purpose of impeaching the credibility of a witness, a party may show that the
witnesshas, on another occasion, made statements that are inconsistent with some
material part of his present testimony. An inconsistent statement may be proved by either
cross-examinationor extrinsic evidence. To prove the statement by extrinsic evidence,
certain requirementsmust be met: (i) a proper foundation must be laid; and (ii) the
statement must be relevant tosome issue in the case.

Evidence IV-Impeachment

Evidence>prior inconsistent statements (IV.C.1)

Question 12

When is extrinsic evidence a prior

inconsistent statement admissible?

Answer 12

Generally, extrinsic evidence of the witness’s prior inconsistent statement is admissible
only if: (i) the witness is, at some point, given an opportunity to explain or deny the
allegedly inconsistent statement; and (ii) the adverse party is, at some point, given an
opportunity to examine the witness about the statement.This foundation requirement
may be dispensed with, however, where “justice so requires” (as where the witness has
left the stand and is not available when his prior inconsistent statement is discovered).
Furthermore, this foundation is not required when the prior inconsistent statement qualifies
as an opposing party’s statement Also, the courts generally agree that inconsistent
statements by a hearsay declarant may be used to impeach the declarant despite the lack
of a foundation.

Evidence IV-Impeachment

Evidence>laying a foundation (IV.C.1.a)

Question 13

What is the evidentiary effect of

prior inconsistent statements?

Answer 13

In most cases, prior inconsistent statements are hearsay, admissible only to impeach the
witness. However, where the statement was made under oath at a prior trial, hearing,
or other proceeding, or in a deposition, it is admissible nonhearsay.

Evidence IV-Impeachment

Evidence>evidentiary effect of prior inconsistent statements (IV.C.1.b)

Question 14

What does evidence of a witness’

bias or interest in the suit show?

Answer 14

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 usually be impeached by extrinsic
evidence of bias or interest, provided a proper foundation is laid. Note that evidence that is
substantively inadmissible may be admitted for impeachment purposes if relevant to show
bias or interest.

Evidence IV-Impeachment

Evidence>Bias or interest (IV.C.2)

Question 15

Can bias be justified with evidence?

Answer 15

Even though it is shown that a witness is biased, no evidence may be admitted to show that he was justified in his bias. This might make him look more reasonable, but is not very relevant to whether his bias might make him less credible.

Evidence IV-Impeachment

Evidence>Justification for Bias (IV.C.2.b)

Question 16

What do most courts require you establish before you are able to impeach a witness with extrinsic evidence of bias or interest?

Answer 16

Most courts require that you establish a foundation by first asking about the facts that show bias or interest in a cross-examination. If the witness admits the facts claimed to show bias or interest, it is within the trial judge’s discretion to decide whether extrinsic evidence may be introduced as further proof of bias or interest.

Evidence IV-Impeachment

Evidence>Foundation (IV.C.2.a)

Question 17

Can a witness be impeached by past crimes?

Answer 17

Under certain circumstances, a witness may be impeached by proof of conviction of a crime. [Fed. R. Evid. 609] The fact that the witness (including a defendant who testifies in a criminal case) has been convicted of a crime may usually be proved by either eliciting an admission on direct or cross-examination or by the record of conviction.

Evidence IV-Impeachment

Evidence>Conviction of Crime (IV.C.3)

Question 18

Can a crime be used to impeach if it didn’t result in a conviction?

Answer 18

This type of impeachment requires an actual conviction of a crime. The fact that the witness has been arrested or indicted may not be elicited here.

Evidence IV-Impeachment

Evidence>Actual Conviction Required (IV.C.3.a)

Question 19

When can a party impeach the credibility of a criminal defendant with proof of a past conviction of any other crime (not involving dishonesty, false statements, etc)?

Answer 19

Only when the prosecution can show that the probative value of the impeachment evidence outweighs the prejudicial effect. [FRE 609]

Evidence IV-Impeachment

Evidence>Impeachment>Conviction of Crime (IV.C.3)

Question 20

When can a party impeach the credibility of a witness with proof of a past conviction of a crime involving an act of dishonesty or false statement?

Answer 20

Always. The trial court has no discretion to exclude evidence in these situations. The logic here is that honesty/dishonesty are always relevant to the credibility of a witness, because we are always concerned with whether or not the witness could be lying on the stand. [FRE 609]

Evidence IV-Impeachment

Evidence>Impeachment>Conviction of Crime (IV.C.3)

Question 21

Are juvenile offenses admissible?

Answer 21

Juvenile offenses are generally not admissible for impeachment purposes. However,
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. [Fed. R. Evid. 609(d); Davis v.
Alaska, 415 U.S. 308 (1974)]

Evidence IV-Impeachment

Evidence>Impeachment Methods–Cross-Examination And Extrinsic Evidence (c.3.b.2.d)

Question 22

What is the balancing test for discretion under Rule 609?

Answer 22

If the felony conviction is offered to impeach the accused in a criminal case, the discretionary standard favors exclusion, since the probative value of the felony (not involving dishonesty or false
statement) must outweigh prejudice. In the case of all other witnesses, the
balancing test favors admission, since the conviction will be excluded only if
the danger of prejudice substantially outweighs its probative value.

Evidence IV-Impeachment

Evidence>Impeachment Methods–Cross-Examination And Extrinsic Evidence (C.3.b.2.c))

Question 23

When is a conviction too remote to be admissible?

Answer 23

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. 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.
[Fed. R. Evid. 609(b)]

Evidence IV-Impeachment

Evidence>Impeachment Methods–Cross-Examination And Extrinsic Evidence (C.3.b.2.c)

Question 24

Are felony convictions of a witness admissible in a criminal case?

Answer 24

In the case of any witness other than the accuesed 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.

Evidence IV-Impeachment

Evidence>Impeachment Methods–Cross-Examination And Extrinsic Evidence (C.3.b.2.b))

Question 25

Means of Proof - Extrinsic Evidence Permitted

Answer 25

A prior conviction may usually n shown by either an admission on direct or cross examination of the witness or by inducing a record of Jude the. No foundation need be laid. However, when a witness is being cross examined about previous convictions,t he questions must b a seek in good faith, as improper questioning may be grounds for a mistrial.

Evidence IV-Impeachment

Evidence > Impeachment Methods

Question 26

Constitutionally Defective Conviction Invalid for All Purposes

Answer 26

Where the prior felony conviction was obtained in violation of the defendant’s sixth amendment rights, the conviction is generally invalid for all purposes including impeachment

Evidence IV-Impeachment

Evidence > Impeachment Methods

Question 27

Pending Appeal Does Not Affect Admissibility

Answer 27

In most jurisdictions and under the Federal Rules, a conviction may be used to impeach even though an appeal is pending though the pendency of the appeal may also be shown

Evidence IV-Impeachment

Evidence > Impeachment Methods

Question 28

Effect of Pardon Depends on Basis

Answer 28

In most states, a conviction ay be shown even though the witness has subsequently been pardoned. Under the federal rules, the conviction may not be shown in f the pardon was based on innocence or if the person pardoned has not been convicted of a subsequently crime punishable by death or imprisonment in excess of one year

Evidence IV-Impeachment

Evidence > Impeachment Methods

Question 29

What is the general rule regarding interrogation of bad acts?

Answer 29

to the discretionary control of the trial judge, a witness can be cross-examined with respect to any immoral, vicious, or criminal act that might affect their character and show them to be unworthy of belief.

Inquiry into bad acts is allowed even if the witness was never convicted. Under Federal Rule 608, such inquiry (at the discretion of the court) is permitted only if the act is probative of truthfulness (i.e., an act of deceit or lying).

Evidence IV-Impeachment

evidence > specific instances of misconduct - bad acts (IV. C. 4)

Question 30

Is extrinsic evidence of bad acts permitted?

Answer 30

NO. Extrinsic evidence of bad acts is not permitted and specific acts, offered to attack the witness’ character for truthfulness may only be elicited on cross-examination.

Further, if the witness denies the act, the cross-examiner cannot refute that answer with another witness or other evidence. However, it is not usually improper for a cross-examiner acting in good faith to continue the cross after a denial in hopes that the witness will change their answer.

Evidence IV-Impeachment

evidence > specific instances of misconduct - bad acts (IV. C. 4. b)

Question 31

What is the duty to inquire in “good faith”?

Answer 31

A cross-examiner must act in good faith and with some reasonable basis for believing that the witness may have committed the bad act in question.

A prosecutor would be acting in bad faith if they inquire into an act they know the witness has been tried and acquitted of.

Evidence IV-Impeachment

evidence > specific instances of misconduct - bad acts (IV. C. 4. a)

Question 32

When can a party NOT appeal the erroneous admission of evidence of a prior conviction?

Answer 32

A party cannot appeal the erroneous admission of a prior conviction if they introduced the evidence themselves.

EXAMPLE: If, after their motion to exclude prior conviction evidence was wrongly denied, a defendant introduced evidence of a prior conviction in order to mitigate future impeachment on cross, the defendant cannot then, on appeal, claim that it was an error to admit prior conviction evidence.

Evidence IV-Impeachment

evidence > appealing admission of prior conviction evidence (IV. C. 3. h. 1)

Question 33

When is it permissible for a specific act of misconduct to be offered for the purpose of attacking the witness’s character for truthfulness?

Answer 33

Extrinsic evidence of “bad acts” is generally not permitted. a specific act of misconduct, offered to attach the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness then denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

Evidence IV-Impeachment

Evidence > Impeachment&raquo_space; specific instances of misconduct (bad acts)&raquo_space;> extrinsic evidence not permitted (IV.C.4.c)

Question 34

Even when it is permissible to offer a specific act of misconduct to attack a witness’s character for truthfulness, Federal Rule 608(b) bars any reference to….?

Answer 34

Federal Rule 608(b) bars any reference during interrogation to consequences the witness may have suffered as a result of his prior bad act, including termination of employment, discipline, etc. The rationale behind this rule is that such a consequence is essentially a third person’s opinion that the witness committed the act–thus, acting the witness about the consequence of his prior bad act on examination is equivalent to presenting extrinsic evidence of the act, which is barred. (see above)

Evidence IV-Impeachment

Evidence > Impeachment&raquo_space; specific instances of misconduct (bad acts)&raquo_space;> cannot reference consequences of bad act (IV.C.4.d)

Question 35

A witness may be impeached by extrinsic evidence–by calling other witnesses or introducing documents that prove impeaching facts. What is one way that a witness may be impeached regarding their truthfulness, or lack thereof?

Answer 35

A witness may be impeached by showing that she has a poor reputation for truthfulness.The usual method of impeach is thus to ask other witnesses about his general reputation for truth and veracity in the community in which he lives, and the modern view is to allow evidence of reputation in business circles as well.

Evidence IV-Impeachment

Evidence > Impeachment&raquo_space; opinion or reputation evidence of untruthfulness&raquo_space;> by proof of reputation (IV.C.5.a)

Question 36

A witness may be impeached by extrinsic evidence–by calling other witnesses or introducing documents that prove impeaching facts. What are two ways that a witness may be impeached regarding their truthfulness, or lack thereof?

Answer 36

A witness may be impeached by offering opinion or reputation evidence of untruthfulness. The Federal Rules allow an impeaching witness to state her personal opinions, based upon acquaintance, as to the truthfulness of the witness sought to be impeached. A witness may also be impeached by showing she has a poor reputation for truthfulness.

Evidence IV-Impeachment

Evidence > Impeachment&raquo_space; opinion or reputation evidence of untruthfulness (IV.C.5)

Question 37

Rationale behind present state of mind?

Answer 37

The rationale is that (i) insofar as the declarant knows her own state of mind, there is no need to check her perception;
(ii) since the statement is of present state of mind, there is no need to check her memory;
and (iii) since state of mind is in issue, it must be shown some way—and very often, the declarant’s own statement is
the only way.

Evidence IV-Impeachment

Evidence: Present State of Mind Rationale

Question 38

What are safeguards to present sense

impression?

Answer 38

Such a comment regarding a situation then before the declarant, i.e., the statement of a present sense impression, does not
have the supposed safeguards of impulse, emotion, or excitement, but there are other safeguards of reliability.
Statements of present sense impression are safe from defects in memory. There is usually little or no time for calculated
misstatement. The statement will usually have been made to another person—the very witness who reports it—who
would have equal opportunity to observe and to contradict or correct a misstatement.

Evidence IV-Impeachment

Evidence: Present Sense Impression Safeguards

Question 39

What is present state of mind?

Answer 39

A statement of the declarant’s then-existing state of mind (e.g., motive, intent, or plan) or emotional, sensory, or physical
condition is admissible. [Fed. R. Evid. 803(3)] The excep- tion is based on the need to obtain evidence as to the
declarant’s internal state of mind or emotion. It must usually be made under circumstances of apparent sincerity. The
statement is often offered to establish the intent of a person, either as a direct fact to be proved as such
(domicile, criminal intent) or as a basis for a circumstantial inference that the intent was probably carried out.

Evidence IV-Impeachment

Evidence: HEARSAY EXCEPTIONS—DECLARANT’S AVAILABILITY IMMATERIAL

Present State of mind

Question 40

What is a present sense impression?

Answer 40

A present sense impression is a statement that describes or explains an event or condition, and is made while or
immediately after the declarant perceives the event or condition.
A present sense impression is admissible as an exception to the hearsay rule.

Evidence IV-Impeachment

Evidence: HEARSAY EXCEPTIONS—DECLARANT’S AVAILABILITY IMMATERIAL

Present Sense Impression

Question 41

How is an impeachment of a witness based on sensory deficiencies made?

Answer 41

A witness may be impeached by showing that he had no knowledge of the facts to which he testified, or 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.

Evidence IV-Impeachment

Evidence>Impeachment Methods (IV.C.6)

Question 42

What are the three types of “Defects of Capacity” methods for impeachment based on sensory deficiencies?

Answer 42

Perceptive disabilities, lack of memory, and mental disorders.

Evidence IV-Impeachment

Evidence>Impeachment Methods (IV.C.6.a)

Question 43

Which perceptive disabilities of a witness may be shown?

Answer 43

It is proper to show deficiencies of the senses, such as deafness or color blindness, that would have substantially impaired the witness’s ability to perceive the facts to which he testifies. It may also be shown that at the time the witness observed the events his perception was temporarily diminished (e.g., that he was sleepy or under the influence of alcohol or drugs).

Evidence IV-Impeachment

Evidence>Impeachment Methods (IV.C.6.a.1)

Question 44

Can a witness be impeached with opinion evidence for untruthfulness by another witness?

Answer 44

Most states do not allow the impeaching witness to state her opinion as to the character of a witness for truth and veracity. However, the Federal Rules allow an impeaching witness to state her personal opinions, based upon acquaintance, as to the truthfulness of the witness sought to be impeached. [Fed. R. Evid. 608(a)]

Evidence IV-Impeachment

Evidence>Impeachment Methods (IV.C.5.b)

Question 45

Lack of Knowledge: 1) Expert Witnesses

Answer 45

The credibility of an expert witness may be attacked by cross-examining him as to (i) his general knowledge of the field in which he is claiming to be an expert, and (ii) his particular knowledge of the facts upon which his opinion is based.

Evidence IV-Impeachment

Evidence>Impeachment>C. Impeachment Methods - Cross-Examination and Extrinsic Evidence>6. Sensory Deficiencies (b.1)

Question 46

Mental Disorders

Answer 46

Psychiatric Evidence of a mental disorder that would affect a witness’s credibility has been admitted by some courts (particularly in sex offense cases).

Evidence IV-Impeachment

Evidence>Impeachment>C. Impeachment Methods - Cross-Examination and Extrinsic Evidence>6. Sensory Deficiencies (a.3)

Question 47

Lack of Memory

Answer 47

A witness can be impeached by showing that the has a poor memory of the events about which he testifies. This is usually done on cross-examination by asking the witness about other related matters to suggest the inference that if his memory of related matters is poor, his recollection of the events to which he is testifying is doubtful.

Evidence IV-Impeachment

Evidence>Impeachment>C. Impeachment Methods - Cross-Examination and Extrinsic Evidence>6. Sensory Deficiencies (a.2)

Question 48

Impeachment on Collateral Matter

Answer 48

Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement.

The purpose of the rule is to avoid the possibility of unfair surprise, confusion of the issues, and undue consumption of time resulting from the attempt to prove and disprove facts that are not directly relevant.

Evidence IV-Impeachment

Evidence>Impeachment>Impeachment on Collateral Matters

Question 49

Contradictory Facts and Extrinsic Evidence

Answer 49

Extrinsic evidence of facts that contradict a witness’s testimony may sometimes be admitted to suggest that a witness’s mistake or lie on one point indicates erroneous or false testimony as to the whole.

Extrinsic evidence of contradictory facts to impeach is permitted:

• where the witness’s testimony on a particular fact is a material issue in the case;
• where the testimony on a particular fact is significant on the issue of credibility; or
• where the witness volunteers testimony about a as to which the opposing party would otherwise be precluded from offering evidence.

Extrinsic evidence is not permitted to prove contradictory facts that are collateral, i.e., not relevant to any material issue in the case or insignificant on the issue of credibility.

Evidence IV-Impeachment

Evidence>Impeachment>Impeachment Methods–Cross-Examination and Extrinsic Evidence

Question 50

Character Witnesses

Answer 50

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.

The testimony of the character witness may be discredited by asking him about specific criminal or immoral acts committed by the defendant, on the theory that if the witness has no knowledge of these acts, he does not really know the defendant’s character.

Evidence IV-Impeachment

Evidence>Impeachment>Impeachment Methods–Cross-Examination and Extrinsic Evidence

Question 51

Opinion Witnesses

Answer 51

The credibility of an opinion witness may be attacked by showing lack of knowledge.

For example: a witness who gives opinion evidence on the value of land may be cross-examined regarding her knowledge of land values and may be asked about sales of other land.

Evidence IV-Impeachment

Evidence>Impeachment>Impeachment Methods–Cross-Examination and Extrinsic Evidence

Question 52

When and how can a party for whom an impeached witness has testified bring in evidence of the witness’s truthfulness?

Answer 52

When the witness’s general character for truthfulness and veracity has been attacked, the party for whom the impeached witness has testified may call other witnesses to testify to the good reputation for truthfulness of the impeached witness or to give their opinion as to the truthfulness of the impeached witness.

Evidence IV-Impeachment

Evidence > Impeachment > Rehabilitation > Good Reputation for Truthfulness (IV. F. 2.)

Question 53

How can an impeached witness be rehabilitated on redirect?

Answer 53

For purposes of rehabilitation, the witness on redirect examination may explain or clarify facts brough out on cross-examination. Example: A witness testifying for the prosecution in an organized crime murder trial admitted to making a prior inconsistent statement. On redirect, the witness is permitted to explain that he gave a prior untrruthful statement favoring the defendant out of fear of being killed by the defendant’s gang.

Evidence IV-Impeachment

Evidence > Impeachment > Rehabilitation > Explanation on Redirect (IV. F. 1.)

Question 54

How can an impeached witness be rehabilitated?

Answer 54

A witness who has been impeached may be rehabilitated on redirect examination or by extrinsic evidence.

Evidence IV-Impeachment

Evidence > Impeachment > Rehabilitation (IV. F.)

Question 55

How can a hearsay declarant be impeached?

Answer 55

Under Federal Rule 806, the credibility of a declarant may be attacked (and, if attacked, supported) by evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny prior inconsistent statements. Additionally, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine them about the statement.

Evidence IV-Impeachment

Evidence > Impeachment > Impeachment of Hearsay Declarant (IV. E.)

Question 56

Can a party rehabilitate a witness by showing a prior consistent statement?

Answer 56

A party may not ordinarily rehabilitate a witness by showing a prior consistent statement because it seldom enhances credibility.

Evidence IV-Impeachment

Evidence>Impeachment>Rehabilitation>Prior Consistent Statement (IV.F.3.a)

Question 57

Is a prior consistent statement admissible as substantive evidence?

Answer 57

Yes! Under FRE 801(d)(1)(B), 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.

Evidence IV-Impeachment

Evidence>Rehabilitation (IV.F.3.c)

Question 58

When can you introduce a prior consistent statement?

Exception 2: Non-Character Grounds

Answer 58

Where a witness’ credibility has been impeached because of some non-character ground (i.e. an alleged inconsistency or sensory deficiency), counsel can introduce a prior consistent statement made by the witness if it has a special tendency to rehabilitate the witness’s credibility.

Note: a prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached.

Examples:
1) On DX, a police officer testified that she was able to single out the defendant because of a prominent scar on the defendant’s forehead. On CX, defense counsel intimated that the officer’s testimony was not credible because she made no mention of the scar in a handwritten report made immediately after the defendant’s arrest. The prosecutor may introduce evidence that three days after the arrest, the officer included a statement about the scar in her formal typewritten report, because this tends to demonstrate that the omission in the handwritten report— the alleged inconsistency—was an insignificant oversight.

2) On DX, a witness testified that the defendant’s car ran the red light. On CX, defense counsel intimated that the witness’s memory was faulty because, one year after the accident, the witness began treatment for a mental disorder that can affect one’s memory. To rebut the insinuation of faulty memory, the plaintiff’s counsel may introduce evidence that the witness told the police a few days after the accident that the defendant’s car ran the red light.

Evidence IV-Impeachment

Evidence>Rehabilitation (IV.F.3.b.2)

Question 59

When can you introduce a prior consistent statement?

Exception 1: Character Grounds

Answer 59

Where a witness’ credibility has been impeached because of some improper motive, counsel may introduce into evidence a prior consistent statement made by the witness before the onset of the alleged motive.

Example: Defense attorney intimated on cross-examination that the prosecution witness was biased against his client because of a fight they recently had. The prosecutor may introduce evidence of a statement the witness made, consistent with his testimony, before the fight occurred.

Evidence IV-Impeachment

Evidence>Rehabilitation (IV.F.3.b.1)