Evidence of witness credibility

Question 1

When is a witness’ prior consistent statement allowed?

Answer 1

A prior consistent statement is allowed when:

1) The witness’ credibility was attacked;
2) The prior consistent statement given as evidence was made before the motive to lie (or memory loss/blindness) occurred; AND
3) It rehabilitates the witness’ credibility

Question 2

What are the 7 methods to impeach a witness

Answer 2

1) Contradiction
2) Prior inconsistent statement
3) Evidence of bias, interest, or motive
4) Impeachment using convictions for crime involving false statement/lying
5) Impeachment using convictions for other crimes
6) Impeachment using misconduct (non-conviction) bearing on truthfulness
7) Impeachment using opinion or reputation testimony regarding truthfulness of the witness.

Question 3

In order to impeach through contradiction, what is the extrinsic evidence rule here:

Answer 3

Cannot use extrinsic evidence to impeach on a collateral matter

Question 4

In order to impeach using a prior inconsistent statement: what is the extrinsic evidence rule here

Answer 4

1) Can use prior inconsistent statements that were given under oath (can be used to impeach or as substantive evidence)
2) For all other cases, extrinsic evidence can only be used if at some point, the witness is given an opportunity to deny, or explain the prior inconsistent statement.

Question 5

In order to impeach by showing bias, conflict of interest or improper motive, what is the extrinsic evidence rule here:

Answer 5

1) Can you extrinsic evidence AFTER the witness first asked about the facts that show bias or interest.

Question 6

Impeachment with Conviction for crime involving deceit/lying: RULE

Answer 6

1. Conviction can be for both a felony, or a misdemeanor
2. Generally, court DOES NOT have discretion to balance the prejudicial effect,
3. Juvenile convictions never allowed
4. Extrinsic evidence is allowed
5. Convictions over 10 years old are not allowed (starting with the date of conviction or the date of release, whenever is later.) unless proponent of evidence shows that the probative value outweighs the prejudicial value.

Question 7

Impeachment with Conviction for Other crimes not involving dishonesty RULE

Answer 7

1. Needs to be a felony only (not misdemeanor)
2. Probative value balancing

If ∆ is witness: court has discretion to exclude if the probative value is outweighed by the prejudicial effect.

Any other witness: court can exclude if the probative value is substantially outweighed by the prejudicial effect.

3. Convictions over 10 years old are generally not allowed (starting with the date of conviction or the date of release, whenever is later.) unless proponent of evidence shows that the probative value outweighs the prejudicial value.
4. Juvenile convictions are never allowed
5. Extrinsic evidence is allowed

Question 8

Impeachment for misconduct (non-conviction) bearing on truthfulness RULE

Answer 8

Extrinsic evidence is NOT allowed

(because asking about specific acts without a conviction.)

Question 9

Impeachment with reputation / opinion bearing on truthfulness RULE

Answer 9

Extrinsic evidence is allowed

because not evidence of specific acts

Question 10

In a case of tax fraud, defendant testifies and admits his tax returns did not report all of his income, but claims this was unintentional. Prosecution offers evidence that Defendant previously was convicted of the misdemeanor of filing a false report.

1) Is this admissible? Why or why not?
2) Does the court have discretion to exclude the conviction due to unfair prejudice?

Answer 10

Yes, this is admissible. This is the impeachment with a conviction of a crime involving deceit/lying. It doesn’t matter that the conviction was for a misdemeanor.

The court does not have discretion to exclude this evidence.

Question 11

To impeach the defendant, Prosecution offers evidence that Defendant was previously convicted of disorderly conduct, a misdemeanor. Is that admissible?

Answer 11

No. This is a conviction of a crime not involving deceit/lying so a conviction for a misdemeanor is not admissible to impeach.

Question 12

In a bank robbery case, defendant testifies denying involvement in the bank robbery. Prosecution offers a copy of a judgment showing defendant was released from prison in 1988 after serving time for felony perjury. Is this admissible?

Answer 12

No. Convictions 10 years or older are inadmissible unless the prosecution shows that its probative value outweighs unfair prejudice.

Question 13

In an action for a breach of contract, and on cross examination of the plaintiff, the defense asks “isn’t it true that you lied on your driver’s license application?” Plaintiff answers “No.” Is this admissible?

Answer 13

Yes. Impeachment for misconduct bearing on truthfulness is allowed.

Question 14

Prosecution for bank robbery. ∆ testifies and denies involvement. Prosecutor asks defendant about lying on his driver’s license application but defendant denies it. Prosecution offers the application. Admissible?

Answer 14

No. This is an impeachment for misconduct bearing on truthfulness, not a conviction- so you cannot use extrinsic evidence.

Question 15

Prosecution asks defendant about the robbery. Defendant denies involvement in it. Prosecutor then asks defendant if he stole office supplies at work. Defendant admits to the theft. Admissible?

Answer 15

No. This is not based on truthfulness. The misconduct must have a bearing on witness’ propensity for truthfulness.

Question 16

In a personal injury action, plaintiff testifies he suffers back pain because of the accident. Defense witness testifies he lives in plaintiff’s community and has known plaintiff for years. Witness testifies that he believes plaintiff is a liar and is known in the neighborhood as “Shifty.” Is this admissible?

Answer 16

Yes, because this is impeachment with opinion or reputation evidence bearing on the witness’ truthfulness.

Question 17

During a trial for bank robbery, the Defendant thought it was a good idea to testify. The defendant claims no involvement in the crime. His attorney thought it was a good idea to ask specific questions about the defendant’s teller job at the bank, to show that he was well liked by his employer, and is an outstanding citizen that would not steal. On cross examination, the prosecution asks the defendant, “weren’t you fired in your previous bank teller job for embezzlement?” Prosecution objects. How should the court rule?

Answer 17

Objection sustained.

This is impeachment with misconduct bearing on truthfulness. While this act of misconduct is probative of truthfulness, this type of questioning is not allowed because impeachment with misconduct bearing on truthfulness only allows questions about the specific instances on cross examination, and disallows extrinsic evidence.

Evidently, asking a question like this provides a third person’s opinion of to the misconduct (here the firing constituted the employer’s opinion that the witness committed the act) and is the equivalent of presenting extrinsic evidence of the act.

Question 18

What impeachment method can you NOT give extrinsic evidence of:

Answer 18

1) Specific acts bearing on truthfulness (can only ask)
2) Specific acts of other bad acts NOT bearing on truthfulness: not even allowed to ask b/c too prejudicial.
3) no extrinsic evidence on collateral matters.
4) No extrinsic evidence of conviction of misdemeanor offenses for “other crimes” (crimes not based on deceit/lies like misdemeanor theft)

– For impeachment with conviction of crime… watch out for whether the crime was a felony or misdemeanor. Misdemeanor only allowed for crimes based on deceit.