Impeaching a Witness Flashcards
Who may attack a witness’s credibility?
Any party, opponent OR proponent of the witness
But most common for opponent to attack
What must the proponent of a witness show in order to impeach their own witness?
1.) Surpise; AND
2.) damage by the testimony
What are the FIVE most common methods of impeachment
1.) Showing Bias
2.) Prior inconsistent statements
3.) showing bad character for truthfulness
4.) Offering Counterproof
5.) Showing Defects in witness memory
May an attorney attempting to impeach a witness for bias use extrinsic evidence? (Bonus name the TWO types of extrinsic evidence to show bias)
Yes. Usually either extrinsic evidence of statement or conduct showing a close relationship in favor of the party
May a party use extrinsic evidence to impeach a witness for defects in perception?
Yes. Usually with some sort of communication from a medical professional or a friend.
What would constitute a defect in perception for the sake of impeachment?
Literal defects in memory, vision, hearing, etc. (where relevant); AND
Intoxication
What are the three ways to show bad character for truthfulness?
1.) Prior unconvicted bad acts
2.) Prior convicted bad acts
3.) Character reputation
What prior unconvicted acts may be used for impeachment?
Only acts which include fraud, not-yet convicted criminal activity for which dishonesty is an element (including criminal activity for which the witness entered a plea agreement for)
NOT acts that they were found not guilty of
May a party use extrinsic evidence to impeach a witness for prior unconvicted bad acts to show bad character for truthfulness?
No. If witness doesn’t admit, invokes privilege, etc. that’s it.
What are the three steps for impeaching by prior convicted acts to show bad character for truthfulness?
1.) Is there a qualifying conviction
2.) Does the proposed evidence satisfy its requisite balancing test
3.) Is it within the time limit?
What is a qualified conviction for convicted bad acts as evidence of bad character for truthfulness?
ANY Felony OR a misdemeanor which specifically involves dishonesty
(pleas(guilty or no contest) and convictions awaiting appeal count)
What are the three tiers of balancing test for prior convicted acts as evidence of bad character for truthfulness?
1.) IF Misdemeanor or Felony involving dishonesty: NO BALANCING TEST, JUST COMES IN.
remember! all misdemeanors have to involve dishonesty to qualify, thus if it is a qualified misdo, it comes in.)
2.) IF any other kind of FELONY offered against the defendant/accused (or if the felony is older than 10 years): Reverse standard balancing test – probative value must SUBSTANTIALLY outweigh risk of harm
3.) IF any generic felony against any witness not the defendant/accused: STANDARD BALANCING TEST – prejudicial effect must SUBSTANTIALLY outweigh probative value.
Can you use juvenile convictions as prior convicted bad acts to show bad character for truthfulness?
No. Unless proponent can show that it is necessary to the administration of justice (basically impossible)
Can a convicted act for which the witness was pardoned be used as evidence of bad character for truthfulness?
If pardoned based on subsequent finding of innocence –> cannot use
If pardoned based on rehabilitation –> Can ONLY use if the witness committed another felony
Can you review improper impeachment of a witness where that witness does not testify?
No. If a witness does not testify for fear of impeachment, can’t conduct appellate review of improper impeachment.
May extrinsic evidence of prior convicted bad acts be used to show bad character for truthfulness?
Yes.
May a party bring general character testimony from OTHER witnesses to attack/support whether the witness at issue has good character for truthfulness?
YES. (extrinsic evidence is fine)
If a Witness’s character has not been attacked, may the proponent of that witness bring opinion evidence in support of their character for truthfulness?
No. Character must be attacked in order to bring evidence in support.
May a party bring extrinsic evidence to impeach a witness for prior inconsistent statements?
Yes.
May a prior inconsistent statement be substantively? (Offer the prior inconsistent statement as the true one)
ONLY IF NON-HEARSAY
IF statement was made in-court, can offer that statement as true
IF statement was out of court, can ONLY offer to show inconsistency
May a party use unmirandized or involuntary prior inconsistent statements to impeach a witness?
No.
Must a prior inconsistent statement have probative value in order to introduce it to impeach a witness?
Yes. Not just looking for any inconsistency
(i.e. said they had eggs for breakfast one day and cereal when talking later)
What must an opposing party be given if a prior inconsistent statement is to be used for impeachment?
Opposing party MUST:
1.) Be given a copy of the statement; AND
2.) Witness MUST be GIVEN A CHANCE TO EXPLAIN INCONSISTENCY
May a SEPERATE witness be called by an opposing party to impeach a previous witness’s testimony?
Yes. BUT may not be able to call a new witness JUST to contradict the previous witness. It depends on the court.
