Evidence Learning Questions - Set 6 Flashcards
Which of the following statements concerning impeachment by “prior bad acts” is false?
A
The Federal Rules do not provide for the exclusion of prior bad acts on the basis of remoteness.
B
The cross-examiner may ask the witness about a prior bad act only if she has a reasonable basis for believing that the witness may have committed the act.
C
Extrinsic evidence of prior bad acts is permissible where the witness on cross-examination denies committing the bad act.
D
If the witness denies the prior bad act on cross-examination, the cross-examiner may, in good faith, continue the cross-examination in the hope that the witness will change his answer.
C
Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer.
The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about.
The Federal Rules do not provide guidelines for the exclusion of prior bad acts on the basis of remoteness. Prior convictions, however, must not be too remote.
Witness has testified and implicated Defendant in a crime. Defense counsel, believing in good faith that Witness has previously committed perjury when testifying in an unrelated case, asks Witness whether he has ever perjured himself. Witness denies ever committing perjury. Defense counsel may now:
A
Introduce an entry from Witness’s journal in which Witness admits committing the act of perjury
B
Introduce a transcript of Witness’s prior testimony from the unrelated case into evidence
C
Continue the cross-examination in the hope that Witness will change his answer
D
Call another individual to testify about Witness’s prior act of perjury
C
If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry. Eventually, the cross-examiner must accept the witness's answer and move on. Extrinsic evidence (e.g., calling another witness or introducing a record) of "bad acts" is not permitted, even where the witness denies committing the act on cross-examination. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act __________.
A
resulted in a criminal conviction
B
is corroborated by extrinsic evidence
C
is probative of truthfulness
D
affects the witness’s character in some way
C
Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief.
Extrinsic evidence of “bad acts” is not permitted. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
A witness may be impeached by her prior act of misconduct even if the act did not result in a criminal conviction. However, the act of misconduct must be probative of truthfulness.
An attorney wants to cross-examine a witness about the witness’s prior bad act that is probative of truthfulness. Which statement best describes the trial court’s discretion to allow this inquiry?
A
The court may allow the inquiry, but only if the act resulted in a criminal conviction
B
The court must not allow the inquiry; this method of impeachment is not allowed
C
The court may allow the inquiry
D
The court must allow the inquiry; the cross-examiner is entitled to impeach the witness with the prior bad act as a matter of right
C
Federal Rule 608 permits inquiry on cross-examination into prior acts of misconduct that are probative of truthfulness (i.e., an act of deceit or lying), in the discretion of the court. Thus, the court may allow such inquiry, but because it is discretionary with the court, “must” is a wrong choice.
Impeachment by this method is permitted even if the act did not result in a criminal conviction.
The defendant was being sued by the plaintiff for driving his car negligently and injuring the plaintiff. The defendant called as a witness his brother, who was in the passenger seat of the defendant’s car when the accident occurred. His brother testified that the defendant was driving safely and well below the posted 55-mile-per-hour speed limit. Shortly before the trial began, the brother’s secretary telephoned the plaintiff and told him that the brother has been understating his income to the government for years. The Internal Revenue Service has never charged the brother with tax evasion, but the secretary’s information was accurate. On cross-examination, the plaintiff’s attorney asked the brother, “Have you ever cheated on your tax returns?” The defendant’s attorney objects.
Should the objection be sustained?
A Yes, because the question is not relevant to the facts of the case at bar.
B Yes, because witnesses may not be impeached through the use of collateral material.
C No, because the brother’s tax evasion shows a tendency to lie.
D No, because the brother’s acts constitute a felony punishable by at least one year in prison.
C
The objection should be overruled because the question is a proper means of impeaching the brother’s character for truthfulness through specific instances of misconduct. Under Federal Rule 608(b), subject to the discretion of the trial judge, a witness may be interrogated on cross-examination with respect to any specific act that may impeach his character and show him to be unworthy of belief, as long as the act is probative of truthfulness (i.e., an act of deceit or lying). A conviction of a crime is not necessary under this rule. Cheating on one’s taxes is lying, so this would be a specific act of misconduct reflecting on the brother’s character for truthfulness. (A) is incorrect. Any matter that tends to prove or disprove the credibility of a witness is relevant because it affects the weight that the trier of fact should give to his testimony. (B) is incorrect because the brother is not being impeached by collateral extrinsic evidence (which is not permitted by Rule 608(b)); he is only being interrogated on cross-examination. (D) is incorrect because it states a requirement for impeachment by a prior conviction under Federal Rule 609, rather than by prior bad acts under Rule 608(b), which does not require that the conduct constitute a felony. Rule 609 is inapplicable because it requires a criminal conviction, and the brother has never even been charged with tax evasion.
During the course of his trial for assault, the defendant placed his neighbor on the stand. The neighbor testified that the defendant had a good reputation in their community for being a peaceable man. On cross-examination, the prosecutor asked the neighbor if she filed a false income tax return last year. The neighbor has in fact been convicted of filing a false tax return; however, the defense immediately objected.
Should the court permit the question?
A Yes, because the neighbor has been convicted of filing a false tax return.
B Yes, because the question is relevant to the truthfulness and credibility of the witness.
C No, because specific instances of conduct are inadmissible.
D No, because the question does not go to a relevant character trait.
B
The court should require the neighbor to answer the question because it is relevant to her truthfulness and credibility as a witness. Under the Federal Rules, a witness may be impeached on cross-examination with her prior specific acts of misconduct that are probative of truthfulness. Specific “bad acts” that show the witness unworthy of belief (i.e., acts of deceit or lying) are probative of truthfulness. Filing a false income tax return reflects on the neighbor’s veracity and, thus, her credibility. Therefore, the neighbor should be required to respond. (A) is incorrect because inquiry into bad acts to impeach a witness’s credibility is permitted even if the witness was never convicted of a crime relating to the act. Even though the neighbor could have been impeached by evidence of her conviction for the crime, here she is just being asked about her conduct rather than the criminal conviction. (C) is incorrect because Federal Rule 608 permits inquiry about specific acts of misconduct, within the discretion of the court, if they are probative of truthfulness. An important limitation is that extrinsic evidence is not admissible to prove such acts; here, however, the impeachment was properly limited to inquiry on cross-examination. (D) is incorrect because the question relates to truthfulness, and a witness’s credibility is always relevant.
A witness testified against a defendant in a contract action. The defendant then called a friend to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness’s employee to testify that the witness once perpetrated a hoax on an insurance company, for which she was convicted.
Is the employee’s testimony admissible?
A No, because it is merely cumulative impeachment.
B No, because it is extrinsic evidence of a specific instance of misconduct.
C Yes, because the hoax resulted in a conviction of the witness.
D Yes, because a hoax involves untruthfulness.
B
The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted. A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it. (A) is incorrect because there is no specific rule limiting cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing evidence that the witness was convicted of a crime if the conviction required proof or admission of an act of dishonesty or false statements. However, the prior conviction must not be more than 10 years old, and the facts do not disclose how old the conviction was. Furthermore, a prior conviction generally is shown by cross-examination of the witness or by introducing the record of the judgment. A judge is not likely to permit another witness to testify about the conviction because it is too time-consuming and more prejudicial than the other means of proof. (D) is incorrect because even though a hoax would impair a witness’s credibility, it cannot be shown through testimony of specific acts, as discussed above.
The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, “Isn’t it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?” The waiter responded, “Yes, but I wasn’t trying to steal anything. I just forgot to charge them.” The defense then asked, “Isn’t it a fact that last month you threw a rock through the plate glass window at the restaurant?” The waiter replied, “That’s not true; I was there but I didn’t throw the rock.” The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant’s window.
Assuming that there have been no criminal charges filed as a result of the broken window, is the witness’s testimony admissible?
A No, because specific acts of misconduct that did not result in a conviction cannot be used to impeach a witness, either on cross-examination or through extrinsic evidence.
B No, because specific acts of misconduct that did not result in a conviction cannot be established through extrinsic evidence.
C Yes, as evidence of bias.
D Yes, to establish that the waiter lied under oath.
C
The witness’s testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant’s window, because such evidence would help establish the waiter’s bias against the restaurant. (A) is incorrect for two reasons: Federal Rule 608 provides that, if offered to impeach, prior bad acts may not be proved through extrinsic evidence but may be inquired into during cross-examination. Furthermore, if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible. (B) is incorrect as well for this latter reason. (D) is too broad a statement. In a broad sense, the evidence is offered to impeach the credibility of the waiter and to suggest to the jury that he may be lying under oath. However, the defense does not need to establish that the waiter lied; the reason the evidence is relevant and does not constitute impeachment on a collateral matter is because it is offered to show bias, making (C) the better answer.
