Impeachment

Question 1

Is evidence of a juvenile conviction admissible in a civil case to attack a witness’s character for truthfulness?

Answer 1

NO. Never

Under FRE 609, evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.

The policy underlying this rule is that juvenile adjudications lack the precision and general probative value of criminal convictions.

This is generally attributed to the informality of juvenile proceedings, the diminished amount of proof required for juvenile adjudications, and other departures from accepted standards for criminal trials.

Question 2

Can a W be impeached by evidence that directly contradicts the W’s testimony on a material issue?

Answer 2

YES.

A witness may be impeached (i.e., discredited) by evidence that directly contradicts the witness’s testimony on a material issue.

This can be done through both:

intrinsic evidence – testimony elicited from the witness sought to be discredited and

extrinsic evidence – evidence from any source other than the witness’s own testimony.

Question 3

Impeaching Witness’s Character for Truthfulness

Answer 3

A party can attack any witness’s character for truthfulness with reputation or opinion testimony OR with specific instances of conduct (SICs) that are probative of that character.

Only two types of SICs are admissible for this purpose:

(1) convictions for a felony or crime of dishonesty AND
(2) other bad acts.

However, a mere arrest does not qualify as a bad act that can be used to attack a witness’s character for truthfulness. That is because an arrest for misconduct is not itself misconduct.

Question 4

A specific instance of involving a mere bad act may only be intorduced ________________.

Answer 4

Intrinsically

A witness’s character for truthfulness can be attacked with a specific instance of conduct (SIC) involving a criminal conviction for a felony or crime of dishonesty—regardless of whether the SIC is introduced intrinsically or extrinsically.

However, a SIC involving a mere bad act can only be introduced intrinsically.

Question 5

Methods of impeaching witness

Answer 5

1. Character for truthfulness
   i) Reputation or opinion testimony (extrinsic)
   ii) SIC involving bad act (intrinsic)
   iii) SIC involving criminal conviction of felony or crime of dishonesty (instrinsic)
2. Self-interest / bias
   i) motive to lie or partiality to party (extrinsic or intrinsic)
3. Prior inconsistent statement
   i) Witness’s prior statement inconsistent with present testimony (extrinsic or instrinsic)
4. Specific contradiction
   i) evidence directly contradicting witness’s testimony on material use ((extrinsic or instrinsic)
5. Sensory abilities
   i) Evidence showing witness’s senses were impaired by physical / mental condition or environmental factors (extrinsic or instrinsic)

Question 6

Methods of impeaching hearsay declarant

Answer 6

When a hearsay statement is admitted, the hearsay declarant may be impeached as if the declarant had testified at trial.

Allowable methods of impeachment include, but are not limited to:

i) evidence of a criminal conviction for a felony or any crime of dishonesty—but misdemeanors not involving dishonesty are not admissible for this purpose.
ii) reputation or opinion testimony regarding the declarant’s character for truthfulness—BUT NOT the declarant’s reputation for violence, AND
iii) evidence that the declarant had a motive to lie or was partial to a party.

Question 7

Impeachment

General Rule

Answer 7

A witness may be impeached by calling into question her credibility.

Typically, a witness’s testimony is challenged based on her:

i) character for untruthfulness,
ii) bias,
iii) ability to perceive or testify accurately, or
iv) prior statement that contradicts the witness’s testimony at trial.

Impeachment evidence may be presented:

i) through the witness’s own testimony,
ii) by the testimony of another witness, OR
iii) by other extrinsic evidence that contradicts the witness’s testimony.

Question 8

Impeachment

Who May Impeach a Witness

Answer 8

Any party, including the party that called the witness to testify, may attack the credibility of a witness.

Question 9

Impeachment

• Witness’s Character for Truthfulness*
• Reputation and Opinion Testimony*

Answer 9

A witness’s credibility may be attacked by testimony regarding the witness’s character for untruthfulness.

Generally, this testimony must be about the:

i) witness’s reputation for having a character for untruthfulness OR
ii) in the form of an opinion of the witness’s character for untruthfulness.

Question 10

Impeachment

• Witness’s Character for Truthfulness*
• Truthful character evidence*

Answer 10

The credibility of a witness may not be bolstered.

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

Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack.

As with evidence regarding a witness’s character for untruthfulness, evidence as to a witness’s character for truthfulness is generally admissible only in the form of reputation or opinion testimony.

Question 11

Impeachment

• Witness’s Character for Truthfulness*
• Specific instances of conduct & Limitations*

Answer 11

Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness’s character for truthfulness.

However, on CROSS-EXAMINATION a witness may be asked about specific instances of conduct if:

1) it is probative of the truthfulness or untruthfulness of
(i) the witness or
(ii) another witness about whose character the witness being cross-examined has testified.

The judge may refuse to allow such questioning of a witness under either Rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or Rule 611 (protection of the witness from harassment or undue embarrassment).

• In addition, the lawyer who examines the witness must have a good-faith basis for believing that the misconduct occurred before asking the witness about it.

Question 12

Impeachment

• Witness’s Character for Truthfulness*
• Specific instances of conduct & Arrest*

Answer 12

Because an arrest for misconduct is not itself misconduct, a witness may not be cross-examined about having been arrested solely for the purpose of impeaching the witness’s character for truthfulness.

However, the witness may be cross-examined about the underlying conduct that lead to the arrest.

Question 13

Impeachment

• Witness’s Character for Truthfulness*
• Specific instances of conduct & Use of Extrinsic Evidence*

Answer 13

When, on cross-examination, the witness denies a specific instance of conduct, extrinsic evidence is NOT admissible to prove that instance in order to attack or support the witness’s character for truthfulness.

This prohibition also bars references to any consequences that a witness may have suffered because of the conduct (e.g., suspension from a governmental job for improper personal use of governmental property).

Note, however, that extrinsic evidence of specific conduct can be admissible to impeach the witness on other grounds, such as bias.

While a document is generally considered to be extrinsic evidence, when the foundation for the document is established through the witness being impeached, it is possible that the document might be admissible to impeach the witness’s character for truthfulness.

Question 14

Impeachment

• Witness’s Character for Truthfulness*
• Specific instances of conduct & Privilege against self-incrimination*

Answer 14

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

Question 15

Impeachment

Criminal Conviction

Answer 15

A witness’s character for truthfulness may be impeached with evidence that the witness has been convicted of a crime, subject to the limitations.

***It does not matter whether the conviction is for a state or federal crime***

Question 16

Impeachment

• Criminal Conviction*
• Crimes involving dishonesty or false statement*

Answer 16

Subject to the 10-year restriction, any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence.

• A crime involves dishonesty or false statement if establishing the elements of the crime requires proof (or admission) of an act of dishonesty or false statement, such as perjury, fraud, embezzlement, or false pretense.

​Crimes of violence, such as murder, assault, and rape, are not crimes involving dishonesty or false statement, even though the perpetrator acted deceitfully in committing the crime of violence.

Question 17

Impeachment

• Criminal Conviction*
• Crimes NOT involving dishonesty or false statement*
• Criminal Defendant*

Answer 17

Subject to the 10-year restriction, a conviction for a crime not involving fraud or dishonesty is admissible to impeach a witness only if the crime is punishable by death or imprisonment for more than one year (typically, a felony).

1) Criminal defendant

When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant.

This stricter-than-usual balancing test gives extra protection to a criminal defendant who takes the stand in his own defense.

Question 18

Impeachment

• Criminal Conviction*
• Crimes NOT involving dishonesty or false statement*
• Other Witnesses*

Answer 18

For witnesses other than a criminal defendant, such evidence generally must be admitted.

The court does have the discretion, however, to exclude the evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect (i.e., the Rule 403 standard).

Question 19

Impeachment

• Criminal Conviction*
• Convictions more than 10 years old*

Answer 19

If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:

i) The probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; AND
ii) The proponent gives an adverse party reasonable written notice of the intent to use such evidence so that the adverse party has a fair opportunity to contest the use of such evidence.

Question 20

Impeachment

• Criminal Conviction*
• Effect of Pardon*

Answer 20

Evidence of a witness’s conviction is not admissible if the conviction has been the subject of a pardon, annulment, or other action based on a finding of innocence.

This rule also applies to an action based on a finding that the witness has been rehabilitated, provided that the witness has not been convicted of a later crime punishable by death or imprisonment in excess of one year (typically, a felony).

Question 21

Impeachment

• Criminal Conviction*
• Juvenile adjudications*

Answer 21

Evidence of a juvenile adjudication is not admissible to impeach a defendant.

When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if:

i) It is offered in a criminal case;
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; AND
iii) Admitting the evidence is necessary to fairly determine guilt or innocence.

Used to show bias: Under the Sixth Amendment Confrontation Clause, evidence of a witness’s juvenile adjudication can also be used by a criminal defendant to impeach a witness’s credibility by showing bias, such as when the witness’s juvenile adjudication could provide a motive for the witness to lie.

Question 22

Impeachment

• Criminal Conviction*
• Manner of Proof*

Answer 22

Evidence of a prior conviction may be produced by way of an admission by the witness, whether during direct testimony or on cross-examination, as well as by extrinsic evidence (e.g., a record of the conviction).

Question 23

Impeachment

• Criminal Conviction*
• Pendency of Appeal*

Answer 23

A witness’s conviction may be used for impeachment purposes even if an appeal is pending.

Evidence of the pendency is also admissible.

Question 24

Impeachment

Prior Inconsistent Statements

Answer 24

A witness’s prior statement that is inconsistent with a material part of the witness’s testimony may be used to impeach the witness.

Question 25

Impeachment

• Prior Inconsistent Statements*
• Disclosing the statement to the Witness*

Answer 25

A party who is examining a witness about the witness’s prior statement is not required to show it or disclose its contents to the witness, but the statement must be shown, or its contents disclosed, to an adverse party’s attorney upon request.

Question 26

Impeachment

• Prior Inconsistent Statements*
• Extrinsic Evidence*

Answer 26

Extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if:

i) the witness is given the opportunity to explain or deny the statement, AND

ii) the opposing party is given the opportunity to examine the witness about it.

The witness’s opportunity to explain or deny the statement need not take place before the statement is admitted into evidence.

Question 27

Impeachment

• Prior Inconsistent Statements*
• Extrinsic Evidence – Exceptions to the opportunity to explain*

Answer 27

The opportunity to explain or deny a prior inconsistent statement does not apply when the statement:

(i) impeaches a hearsay declarant OR
(ii) qualifies as an opposing party’s statement under Rule 801(d)(2)

Question 28

Impeachment

• Prior Inconsistent Statements*
• Extrinsic Evidence – Collateral Matter*

Answer 28

Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral (i.e., irrelevant) matter; the questioning party is bound by the witness’s answer.

Question 29

Can the court refust to admit evidence of a prior sworn inconsistent statement if it involves a collateral matter?

Answer 29

YES.

Even assuming the sworn statement was introduced for the truth of the matter asserted, the court could refuse to admit it into evidence because it relates to a collateral matter.

Example: Because the police officer testified that she did not remember what the witness had told her, her prior statement, although made under oath, does not contradict her current testimony.

• a witness who says they don’t remember something does not mean they are contradicting their testimony.

Question 30

Impeachment of Hearsay Declarant

Answer 30

When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked (and, if attacked, supported) by any 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 any inconsistent statement or conduct, whether such statement or conduct occurred before or after the hearsay statement.

If the party against whom a hearsay statement has been admitted calls the declarant as a witness, then the party is entitled to examine the declarant on the statement as if under cross-examination. Fed. R. Evid. 806.

Similar impeachment treatment is accorded a nonhearsay statement made by a co-conspirator, agent, or authorized spokesperson for an opposing party that has been admitted into evidence.

Question 31

Although a defendant’s crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving………

Answer 31

1. ^_motive,
2. ^{_opportunity,}
3. ^_intent,
4. ^{_preparation,}
5. ^_plan,
6. ^_knowledge,
7. ^_identity,
8. ^{_{absence of mistake, or}}
9. ^{_{lack of accident.}}

Question 32

Does the opportunity to explain or deny a prior inconsistent statement apply when the statement qualifies as an opposing party’s statement?

Answer 32

NO.

The witness’s opportunity to explain or deny the statement need not take place before the statement is admitted into evidence.

The opportunity to explain or deny a prior inconsistent statement does not apply when the statement qualifies as an opposing party’s statement.

Question 33

Can a witness be asked about their affiliation with a church, who is a party to the case?

Answer 33

YES.

Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., avoidance of prosecution), or his interest in the outcome of the case (e.g., receipt of an inheritance), a witness’s bias or interest is always relevant to the credibility of his testimony, and a witness may always be impeached on this ground.

Because the witness’s affiliation with the church may influence her to give testimony that is favorable to the church, this is a proper impeachment inquiry.

Question 34

When is evidence of liability insurance admissible?

Answer 34

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness’s bias or prejudice.

Question 35

Impeachment by Juvenile Adjudication

Answer 35

Evidence of a juvenile adjudication is not admissible to impeach a defendant.

When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if:

i) It is offered in a criminal case;
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; AND
iii) Admitting the evidence is necessary to fairly determine guilt or innocence.

Used to show bias: Under the Sixth Amendment Confrontation Clause, evidence of a witness’s juvenile adjudication can also be used by a criminal defendant to impeach a witness’s credibility by showing bias, such as when the witness’s juvenile adjudication could provide a motive for the witness to lie.