Examination and Impeachment of a Witness: 601, 602, 608, 609, 613

Question 1

What does Rule 601 say?

Answer 1

R. 601 Competency to testify
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Question 2

Is 601 a primary foundation for evidence?

Answer 2

Yes. Primary foundational requirement: witness must be able to understand what it means to tell the truth
+ No bright-line standard, too difficult
+ “No mental or moral qualifications for testifying as a witness are specified”
+ Assumed that witnesses know to tell the truth
+ This extends to convicted perjurers
+ For children, attorneys must lay the foundation and establish the child’s understanding of the difference between lying and the truth

Question 3

What does R. 602 say?

Answer 3

R. 602 Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.

Question 4

How does a witness’ lack of knowledge violate the FRE?

Answer 4

Without personal knowledge, a layperson is likely in violation of this rule in at least two ways

1) Testimony is likely hearsay
2) Testimony is likely speculation

Question 5

What are the exceptions to R.602’s requirement of personal knowledge?

Answer 5

R. 602 Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.

Exceptions:
+ R. 703 Expert witnesses
+ R.801(d)(2) Out of court admissions of party opponents (generally offered through the testimony of in-court witnesses)

Question 6

What are the differences between R.602 and R.701?

Answer 6

R.701 When a layperson may offer opinion
+ Rationally based on witness’s perceptions
+ Helpful to clearly understand witness’s testimony or to determining a fact in issue
+ Not based on scientific, technical, or other specialized knowledge within the scope of R.702
+ Leaves some room for lay witnesses to offer opinions and inferences but only within narrow guidelines

R.602 Need for personal knowledge

Question 7

True or false: R.602 applies to witness expert testimony

Answer 7

False. R.602 Need for Personal Knowledge does not apply to a witness’s expert testimony under R. 703.

Question 8

Can judges testify as a witness?

Answer 8

R.605 Judge’s Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Judges cannot testify at trials over which they are proceeding
+ If a judge has personal knowledge of a case, they should recuse themselves
+ If a presiding judge is called to testify, R.605 ensures that the advisory need not object to preserve the impropriety on appeal
+ Though there’s no rule preventing attorneys from testifying in a case where they are representing a client, it becomes a problem under MRPC

Question 9

Can jurors serve as witnesses in a trial?

Answer 9

R.606 Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

+ Bans jurors from testifying in a trial where they are sitting
+ CAN talk to jurors after the case or if the case is declared a mistrial

(b) During an Inquiry into the Validity of a Verdict or Indictment.

Question 10

What are the exceptions to Rule 606(a)-(b)(1)?

Answer 10

Rule 606(b)(2): (2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

+ Allows adverse party to object out of the jury’s presence
+ Reduces the risk that the objection will prejudice the remaining jurors
+ Keeps deliberations largely hidden from view by jurors from testifying about them
+ Assumes that perfection in the trial process is impossible to achieve, need for finality means improprieties in the jury process may generally be tolerated
+ Avoids jurors feeling like they cannot speak openly
+ Avoids losing parties hounding jurors who suffered from “buyer’s remorse”
+ Not limited to after trial/verdict for jurors to testify to improprieties that arise

Question 11

D was convicted of mail fraud. Following his conviction, in an effort to obtain a new trial, D submitted affidavits from two of the jurors describing events that had taken place during the trial and the deliberations. The affidavits claimed that a number of the jurors smoked marijuana regularly during the trial, and others snorted cocaine. In addition, one juror sold marijuana to another juror during the trial, and a number of jurors fell asleep. Even more, some jurors consumed beer and wine during lunch breaks and at recess. Would D be able to use these affidavits to obtain a new trial?

Answer 11

Objection: Prohibited Juror Testimony
Response: Intolerable improprieties by jurors affected the outcome
Ruling: Sustained. R.606 exceptions allows jurors to testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Even if a judge considers such evidence, jurors are never allowed to testify to the impact of the proper influence on their reasoning process.

Question 12

A juror in a case submitted an affidavit stating that while the bailiff was escorting the jurors to lunch, the bailiff told the juror, “This wasn’t allowed in evidence, but should now that D is a bad guy. He has a string of convictions for mail fraud a mile long.” The juror’s affidavit also states, “I never would have voted to convict D if the bailiff hadn’t said that.” Can a judge consider this affidavit as witness evidence?

Answer 12

Objection: Improper juror testimony
Response: Prejudicial information provided by bailiff to set aside guilty verdict
Ruling: Affidavit is overruled, but the juror’s assertion as to the effect of the impropriety on juror’s vote is impermissible

Question 13

What does Rule 608(a) say?

Answer 13

Rule 608: Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness or by testimony in the form of an opinion about that character.

BUT

Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

+ When opinion or reputation evidence is offered, counsel must lay foundation showing character witness has an adequate basis for forming an opinion about the impeached witness’ character
+ Or for having heard about the impeached witness’ reputation (Rehabilitation)

Question 14

What does Rule 608(b) say?

Answer 14

Rule 608: Witness’s Character for Truthfulness or Untruthfulness
(b) Specific Instances of Conduct
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.

But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Question 15

D is charged with robbery and his primary alibi witness was impeached with evidence of untruthful character. On rebuttal, the defense calls the witness’ pastor to testify that the witness, who the pastor has known for the past 10 years, has an honest character. Is this allowed?

Answer 15

Yes, under R.608(a) on sur-rebuttal, after the other side has attacked the witness’ truthfulness first during cross-examination. This is to rehabilitate the witness’ truthfulness.

Question 16

The prosecution brings two witnesses to trial, one to speak about D’s reputation as an untruthful person and another to speak to D’s character as an abuser. Is impeachment allowed?

Answer 16

D can only impeach the first witness, as his testimony had to do with untruthfulness. The second witness spoke to different character traits and cannot be impeached under R.608

This doesn’t mean that the witnesses’ testimony won’t be admitted, only that the D can impeach the first witness under R.608(a)

Question 17

Witness 1 and D testify at a rape trial. D claims the alleged victim consented. In rebuttal, the prosecution called Witness 2, who testified that D had a reputation in his neighborhood as a liar. Witness 1 testifies in response that, in his opinion, D has the character of a truthful man. During cross-examination, the prosecution asks Witness 1: “Weren’t you present when D purchased liquor from a local store using a fake ID?” Is this allowed?

Answer 17

Yes, within the scope of R.608(b) because Witness 1 testified to D’s truthful character. From there, the court can allow the prosecution, upon cross-examination of Witness 1, to challenge Witness 1’s claim about Witness 2 by suggesting (via specific acts) that Witness 1 has an untruthful nature.

Question 18

What does Rule 609(a)(1) say?

Answer 18

Rule 609: Impeachment by Evidence of a Criminal Conviction

(a) In General: rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction
(1) For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) Must be admitted, subject to R. 403, in a civil case or in a criminal case in which the witness is not a defendant
(B) Must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant

Question 19

What does Rule 609(a)(2) say?

Answer 19

Rule 609: Impeachment by Evidence of a Criminal Conviction

(a) In General: rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction
(2) For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the element of the crime required proving – or the witness’s admitting – a dishonest act or false statement.

Question 20

What are the typical character based impeachment inferences?

Answer 20

1) Witness has a character for untruthfulness (indicated by reputation, opinion, or specific instances of untruthful conduct)
2) Witness is acting in accordance with propensity for untruthfulness ⇒ R.404(a)(3) allow witness-character evidence via R.607, R.608, and R.609

Therefore, witness is less likely to be telling the truth on the stand today

Question 21

What are the types of non-character impeachment?

Answer 21

1) Bias: witness is motivated to lie in this specific case
2) Prior Inconsistent Statement: witness said different things at different times about the same matter
3) Contradictory Evidence: Challenging witness statement by other contradictory evidence in an attempt to persuade the jury to give the witness account less weight
4) Memory or Perception: Attacking witness’s memory or perceptions

Question 22

Why is the differentiation between character and non-character impeachment important?

Answer 22

1) Non-character includes proof indicating that the witness is lying in the specific instance for some reason, not that the witness is generally a liar.
2) Being able to recognize non-character impeachment is important b/c a character based objection should be overruled
3) Know when the character-based limitations apply

Question 23

True or false: Only the defense can impeach a witness

Answer 23

False. R. 607: Who May Impeach a Witness
+ Either party may offer impeachment evidence to suggest that another party’s witness is just wrong – lying or simply mistaken
+ Offered to persuade jury that the witness cannot be believed

Question 24

True or false: R.608(a) allows parties to offer positive character evidence to establish that a witness has a truthful character

Answer 24

True. In rehabilitating a witness’s character, positive evidence may be used to establish that a witness is truthful.

+ This comes into play after a party has attacked the same witness’ truthful character
+ BUT non-character impeachment (bias, contradictory evidence, etc.) generally does not implicate R.608

Question 25

True or false: Extrinsic evidence is allowed for specific instances of conduct to attack or support the witness’s character for truthfulness (under R. 608(b))?

Answer 25

False. Extrinsic evidence not allowed, as stated in R.608(b)

UNLESS it’s a criminal conviction under R.609

Question 26

True or false: Specific acts evidence is allowed if those specific acts are elicited “intrinsically” – from the mouth of the witness being cross-examined

Answer 26

True.

Question 27

What happens under Rule 608 if a witness being cross-examined denies committing a specific wrongful act?

Answer 27

If the witness being cross-examined denies committing or knowing about the alleged wrongful acts, the cross-examiner CANNOT
+ Call another witness (one whose testimony is “extrinsic” to the witness being cross examined)
+ Introduce an exhibit to prove contrary

UNLESS…
+ Testimony has some relevance additional to that of proving the witness’ untruthful character

Question 28

Witness called on behalf of D testifies that he saw P initiate as the aggressor in this dispute at trial. In the prosecution’s cross examination of the witness, the prosecution asks the witness if he recently lied on the stand during his recent divorce trial. The witness denies lying, yet the prosecution calls witnesses to testify to the witness’ contrary testimony during his divorce trial.

Is this allowed?

Answer 28

D should object and the objection should be sustained. Such evidence is extrinsic and needs to have additional relevance beyond proving the witness is untruthful.

Prosecution is stuck with the witness’ denial, false or not

Question 29

Witness for the defense had testified previously in front of a grand jury that P was not the aggressor in the interaction at issue. What could the prosecution do in response?

Could the prosecution call another witness in rebuttal to testify that the witness and D were lifelong friends, thus the witness is biased and motivated to protect his friend?

Could the prosecution ask the witness at cross-examination if he had assaulted anyone within the last week?

Answer 29

R.613, introduce transcript from grand jury to impeach the witness.

Yes because the prosecution seeks to establish that the witness is biased/has motivation to lie in this specific case, non-character impeachment

No because this does not address the witness’ truthfulness

Question 30

Witness 1 and D testify at a rape trial. D claims the alleged victim consented. In rebuttal, the prosecution called Witness 2, who testified that D had a reputation in his neighborhood as a liar. Witness 1 testifies in response that, in his opinion, D has the character of a truthful man. During cross-examination, the prosecution asks Witness 1: “Weren’t you present when D purchased liquor from a local store using a fake ID?”

Is this allowed?

Answer 30

Yes, within the scope of R.608(b) because Witness 1 testified to D’s truthful character. From there, the court can allow the prosecution, upon cross-examination of Witness 1, to challenge Witness 1’s claim about Witness 2 by suggesting (via specific acts) that Witness 1 has an untruthful nature

On cross-examination a witness who has testified about the character of another witness, the witness being cross-examined may be questioned about acts relating to that other witness’ character for truthfulness

Question 31

Witness 1 testifies at a rape trial, but D has not testified. Witness 1 testifies on direct that D has a reputation of peacefulness, which is introduced to the jury as evidence relevant to proving that a peaceful man was less likely than most men to commit rape, an act of violence. On cross-examination, the prosecution asks Witness 1, “Had you heard that one week before this rape, D beat his next door neighbor to the extent of hospitalization?” Is this allowed?

Answer 31

Yes, under R.405(a) because the character trait that Witness 1 testified to on direct was peacefulness, which allows extrinsic impeachment because the inquiry is only allowable on cross-examination.

BUT if Witness 1 denies hearing anything about the beating, no other witnesses may be called to contradict Witness 1’s testimony.

Question 32

How is the balancing test for R.609(a) different than most balancing tests?

Answer 32

R.609(a)(1) Witness who is a criminal defendant
+ Court may admit evidence ONLY IF it determines that the “probative value of the outweighs its prejudicial effect to that defendant
+ Places burden of admitting the evidence on the proponent
+ Requires the probative value exceed undue effects
+ More protective of the accused than R.403 and favors exclusion

Question 33

What are some R.609(a)(1) balancing factors that could be helpful in determining the degree of prejudice?

Answer 33

1) Degree to which crime reflects on credibility
+ Violent crime may not reflect on credibility as much as a theft conviction

2) Nearness or remoteness of prior conviction
+ A person who has led a blameless life for years after a conviction is entitled to more consideration as an honest one vs. someone recently convicted

3) Similarity of prior offense to one charged
+ The more similar, the more the court outweighs bringing it in

4) Extent to which D’s testimony is needed for fair adjudication of the trial
+ If D’s testimony is crucial to his defense – usually it is

5) Whether D’s credibility is central to the case
If we’re going to let in a felony conviction, attorneys will recommend that D not testify

Question 34

D is charged with simple assault. D takes the stand and claims self-defense. P seeks to impeach D by introducing evidence that D was convicted of felony assault almost 10 years ago, a crime punishable by up to 20 years in prison, on D’s 18th birthday. The past offense involved D hitting a person D suspected of having an affair with his then girlfriend. The current case has to do with D punching a co-worker who made a racial slur in D’s presence. There were no eyewitnesses to the current case - D’s word against his coworker. D admitted to starting the fight in the current case without much provocation.

Should the trial court allow the past conviction evidence?

Answer 34

Probably not. The prior crime has little reflection on credibility, the conviction is old, D’s testimony is essential to his defense, D’s credibility is central to the case, there are other adequate means for challenging credibility.

Question 35

True or false:
Evidence that a witness has been convicted of a crime requiring proof of a dishonest act or false statement MUST be admitted

Answer 35

True. R.609(a)(2)
+ Evidence of all other convictions inadmissible under this rule, irrespective of whether the witness exhibited dishonesty or made false statement in the process of commission of the crime of conviction

+ Historically, offenses classified as crimen falsi have included ONLY those crimes in which the ultimate criminal act was itself an act of deceit

Question 36

True or false: Past convictions are not subject to R.403

Answer 36

True.
+ Trial judge has no discretion to weigh prejudice against probative value
+ Convictions, unlike almost all other evidence, not subject to R.403
+ Admissible whether felony or misdemeanor

Question 37

What is a crime of dishonesty or false statement?

Answer 37

Perjury, false statement, criminal fraud, embezzlement, false pretense

Involving some element of deceit, untruthfulness, or falsification bearing on accused’s propensity to testify

Question 38

True or false: Both 608(b) and 609(b) are limited to intrinsic evidence

Answer 38

False.
R.608(b) limited to intrinsic evidence: Use of extrinsic evidence to impeach a witness by proof of specific acts concerning a witness’ character for truthfulness or untruthfulness that did not result in a conviction is barred.

R.609(b) extrinsic or intrinsic: Impeachment by a prior conviction may be done by intrinsic or extrinsic evidence

If a witness denies that she/he was convicted of the impeaching crime, the prosecution may use public record or any other extrinsic evidence to prove otherwise

Question 39

D is on trial for felony cocaine distribution. The prosecution seeks to impeach D’s testimony with evidence of D’s felony conviction for possessing marijuana with intent to sell. The trial court permits impeachment by noting the name, existence and date of the marijuana conviction, as well as punishment imposed. The prosecution seeks to show that the earlier crime involved 80 pounds of marijuana found in D’s home at the time of his arrest on cocaine charges.

Is this allowed?

Answer 39

Probably not because the court has limitations specified as to what could be introduced in impeachment. The additional details would likely show the similarity between the previous crime and the one which D is being charged. The marijuana evidence during cocaine arrest would suggest evidence of substantive guilt rather than credibility.

Question 40

When is evidence of a prior conviction not admissible?

Answer 40

R.609(c)(1)-(2) Effect of a Pardon, Annulment, or Certificate of Rehabilitation
Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Question 41

When is evidence of a juvenile conviction allowed for evidence?

Answer 41

R.609(d)(1)-(4) Juvenile Adjudications.
Evidence of a juvenile adjudication is admissible under this rule only if

(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.

Question 42

If a conviction is pending appeal, may it be used under R.609?

Answer 42

R.609(e) Pendency of an Appeal.

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Question 43

D testifies at his own embezzlement trial, denying any wrongdoing. Prosecution seeks to impeach D with a conviction for felony robbery (punishable by up to 20 years in prison). D was convicted 12 years ago, serving five years in prison and released on pardon based on finding he had been rehabilitated. D was arrested one year later for committing felony assault, which he was convicted and served two years. Is this admissible?

Answer 43

R.609’s exceptions do not bar impeaching D with robbery conviction, as D was released 7 years ago (not too old). Though pardoned for rehabilitation, the pardon was not based on D’s innocence. And he was convicted of a subsequent crime punishable by more than a year in prison.

Question 44

The prosecution seeks to impeach D with a juvenile rape adjudication received 20 years ago, which D served two years at a juvenile home. Is this allowed?

Answer 44

No, R.609(d) prevents the prosecution from impeaching D with his juvenile adjudication because he is the criminal accused. Even if that weren’t the case, the prosecution would have a heavy burden to show great probative value under R.609(b) because the adjudication was well over 10 years old.

Question 45

When is extrinsic evidence of a witness’s prior inconsistent statement allowed into evidence?

Answer 45

R.613(b)) Witness’s Prior Statement
(b) Extrinsic Evidence of a Prior Inconsistent Statement
Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if
+ the witness is given an opportunity to explain or deny the statement and
+ an adverse party is given opportunity to examine the witness about it
+ Or if justice so requires

Question 46

What is intrinsic evidence? When is it generally allowed?

Answer 46

Intrinsic – Attack on witness’ truthfulness essentially depends on the answers given by the witness being impeached. From the witness’ own mouth.

Most types of intrinsic impeachment are permissible
+ Contradiction
+ Bias
+ Convictions of certain crimes
+ Prior acts relating to witness’ truthfulness
+ Testimonial capacities
+ Prior inconsistent statements

Question 47

What is extrinsic evidence? When is it generally allowed? When is it generally NOT allowed?

Answer 47

Extrinsic – Comes from an external source
+ Restricted b/c of greater potential for wasting time and distracting the jury
+ Collateral issue rule: prohibits use of extrinsic evidence to impeach witness on a collateral matter – permits only for not important matters

Allowed
+ Bias
+ Impeachment relating to a fact at issue
+ Witness’ testimonial capacity
+ Convictions of a crime
+ Reputation or opinion evidence about truthfulness or veracity of another witness

NOT Allowed
+ Contradicting the witness on a collateral fact
+ Showing witness’ prior inconsistent statement on a collateral fact
+ Extrinsic evidence is allowed at judge’s discretion – is the issue relevant?
+ Offering a prior act by the witness relating to the witness’ truthfulness

Question 48

What is a contradiction for impeachment purposes? When can extrinsic evidence be used to show contradiction?

Answer 48

Contradiction → examining attorney disputes the witness’ testimony about a fact
+ The fact need not be dispositive or even important to the outcome of the case.
+ Different than prior consistent statement.
+ If a witness is inaccurate about one fact, she is more likely to be inaccurate about other facts

If the witness denies asserted contradicting facts, the cross-examiner is not allowed to prove them by extrinsic evidence UNLESS the subject fact is important to the case
+ Collateral or non-collateral? Extrinsic evidence will be allowed for non-collateral issues

Question 49

What is bias for the purposes of impeachment? When can extrinsic evidence be introduced to impeach a witness for bias?

Answer 49

Bias → witness shown to be influenced, prejudiced, or predisposed toward or against a party
+ May exist because the witness is hostile or interested in the outcome
+ Usually occurs on cross examination

Can be advanced through extrinsic evidence
+ Extrinsic impeachment of bias is routinely permitted b/c bias is non-collateral (important) to the case
+ Can be confused with prior untruthful acts that is NOT permitted

Question 50

When can prior convictions be used to impeach a witness? Is extrinsic evidence allowed?

Answer 50

Convictions of a Crime → witnesses convicted of certain types of crimes are less believable
+ R.609 generally excludes juvenile adjudications and “stale” convictions
+ Extrinsic Evidence Allowed for Direct or Cross

R. 609(a)(1)(A) Witness is NOT the Defendant
Admissible for felonies (death or possible penalty >1year) in current criminal AND civil cases
Reverse balancing

R. 609(a)(1)(B) Witness is the Defendant
Admissible for felonies (death or possible penalty >1year) in current criminal cases

R.609(a)(2) Any crime regardless of the punishment
The evidence must be admitted
If the court can readily determine that establishing the elements of the crime required proving
Or the witness’s admitting – a dishonest act or false statement.

Question 51

What prior bad acts be used to impeach a witness? When can extrinsic evidence be used?

Answer 51

Prior Bad Acts → limited to specific prior acts of the witness that reflect on the witness’ capacity for truthfulness

R.608(b): limited to specific prior acts of the witness that reflect on the witness’ capacity for truthfulness or veracity
+ No conviction required
+ Limited to those involving truthfulness or veracity: Fraud, Obtaining property under false pretenses, Perjury
+ Does not include “bad acts” not related to honesty, violence, disorderly conduct, Drug use
driving at excessive speeds
+ If impeachment is proper, witness may be asked only about the underlying act itself and not about an arrest, charge, indictment, suspension or expulsion relating to the act.

Extrinsic Evidence NOT ALLOWED
+ Prior bad acts considered collateral
+ Intrinsic Evidence Only – if witness denies, cannot bring in extrinsic evidence under R.608(b)
+ But can try under R.609(a) if there is a conviction or under some other rule

Question 52

What is testimonial capacity for the purposes of impeachment? When can extrinsic evidence be introduced?

Answer 52

Testimonial Ability/Capacity → Aspects of a witness’ testimony important for accuracy
+ Physical and psychological conditions, such as bad eyesight, amnesia, hearing loss, or schizophrenia: injurious to a witness’ ability to be accurate
+ Perception (what the witness saw, heard, smelled, or touched at the time in question)
+ Memory (the ability of the witness to recall the occurrence, happening, or event)
+ Narration (the ability of the witness to communicate this perception and memory to others)
+ Sincerity (measurement indicating a lack of prevarication, often a combo of #1-#3)

External evidence allowed – always non-collateral
+ If witness denies, bring in the outside evidence
+ Generally follows a failed attempt on cross-examination to impeach a witness’ testimonial capacities intrinsically

Question 53

What is a prior inconsistent statement for the purposes of impeachment? When can extrinsic evidence be introduced?

Answer 53

Prior Inconsistent Statements → Self-contradiction of two statements made by the same witness
R.613: special rule by self-contradiction
+ Statement 1: during witness testimony at trial
+ Statement 2: prior to trial testimony
+ Not remembering is not sufficient, UNLESS witness acts in bad faith by intentionally “forgetting”

Extrinsic evidence permitted IF the subject matter is non-collateral to case
+ Judge decides if it’s relevant and admissible
+ Witness must have an opportunity to deny or explain the statement

Question 54

How does poor character for truthfulness work with impeachment? When is extrinsic evidence allowed?

Answer 54

Poor Character for Truthfulness →
+ R.608(a) expressly permitted in the form of reputation or opinion testimony ONLY
+ When opinion or reputation evidence is offered, counsel must lay foundation
+ Showing character witness has an adequate basis for forming an opinion about the impeached witness’ character
+ Or for having heard about the impeached witness’ reputation

Extrinsic evidence only
Non-collateral, you can always bring in a witness to rebut