Impeachment

Question 1

Impeachment refers to…

Answer 1

Attacking a witness’s credibility

Question 2

What is the general rule regarding accrediting or bolstering a witness’s testimony?

Answer 2

Generally, a party is not permitted to bolster or accredit the testimony of their witness (for example, by introducing a prior consistent statement by the witness) until the witness has been impeached.

Question 3

HYPO: (1) Plaintiff calls Witness 1 to the stand. Witness 1 testifies that she saw Defendant’s car run the red light. Defense counsel states that she has no questions for the witness. After Witness 1 steps down, Plaintiff calls Witness 2, who testifies, “Witness 1 has a good reputation for truthfulness.” Objectionable?

(2) Variation: Witness 1, after testifying that she saw Defendant’s car run the red light, then testified, “I told everyone at work the next day that I had seen Defendant run the red light.” Result?

Answer 3

(1) Yes. Defense did not impeach Witness 1 for any bad character trait for dishonesty, so Plaintiff may not introduce character evidence of Witness 1’s good character for truthfulness, so this is impermissible bolstering.
(2) Not permitted, for three reasons. First, it’s bolstering the witness’s credibility when there’s been no attack on credibility. Second, there is minimum probative value to the prior consistent statement. The witness could have been lying consistently. Third, it’s hearsay. It’s the witness’s own out-of-court statement being offered to prove the truth of the matter asserted: that the defendant ran the red light.

Question 4

What are the exceptions to the rule against bolstering?

Answer 4

In certain cases, a party may offer evidence that the witness made a timely complaint (for example, in a sexual assault case) or a prior statement of identification (usually, identifying the defendant as the perpetrator of the charged crime) even if this tends to bolster their in-court testimony.

The prior identification may also serve as substantive evidence that the identification was correct.

Question 5

Who may impeach a witness under the Federal Rules?

Answer 5

A witness may be impeached by any party, including the party who called the witness.

Question 6

What are the two permissible impeachment methods?

Answer 6

(1) Cross-examination (eliciting facts from the witness that discredit their own testimony)
(2) Extrinsic evidence (calling other witnesses or introducing documents that prove the impeaching facts)

Question 7

Which impeachment methods require impeaching the witness with facts that are specific to the current event?

Answer 7

(1) Prior inconsistent statements
(2) Bias
(3) Sensory deficiencies
(4) Contradiction

Question 8

Which impeachment methods require impeaching the witness with their general bad character for truthfulness?

Answer 8

(1) Opinion or reputation evidence of truthfulness
(2) Prior convictions
(3) Bad acts

Question 9

How, and using which methods, may you impeach a witness with prior inconsistent statements?

Answer 9

A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.

Question 10

HYPO: Defendant is sued for negligence in a multi-vehicle accident in which he was driving his Suburban. Witness testifies for Plaintiff that she saw the Suburban run the stop sign.

(1) On cross-examination, may Defendant’s counsel seek to establish that a few days after the accident, Witness told the police that the Jeep Cherokee, not the Suburban, ran the stop sign?
(2) If Witness admits she made the prior inconsistent statement, may Defendant use the statement as substantive evidence that the Jeep Cherokee, rather than the Suburban, ran the stop sign?

Answer 10

(1) Yes. Her trial testimony is inconsistent with her prior statement, so Defendant may offer the prior statement to discredit her trial testimony.
(2) No. The statement may only be used to attack the credibility of the witness unless it was made under oath. If Defendant offers it for its truth, it would be hearsay, which is impermissible.

Question 11

When is a prior inconsistent statement admissible as substantive evidence?

Answer 11

If the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

The rationale is that the statement is reliable because of the oath, and because the witness is now subject to cross-examination about the statement.

Question 12

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if…

Answer 12

At some point:

(1) The witness is given an opportunity to explain or deny the statement; and
(2) The adverse party is given the opportunity to examine the witness about the statement

This is the method for establishing foundation for extrinsic evidence.

Question 13

The foundation requirement for extrinsic evidence of a prior inconsistent statement does not apply in which circumstances?

Answer 13

(1) If the prior inconsistent statement is an opposing party’s statement
(2) If the prior inconsistent statement is being used to impeach a hearsay declarant
(3) Where justice requires (for example, when the witness has left the stand and is unavailable when their inconsistent statement is discovered)

Question 14

HYPO: In an auto accident case, Plaintiff testifies that she was wearing her seat belt. Defendant does not cross-examine her. During the defense, Defendant calls Joe the Bartender, who testifies that Plaintiff told him, at Joe’s bar a week after the accident, that she had NOT been wearing her seat belt.

(1) Should Plaintiff’s motion to strike be granted on the ground that Plaintiff was not given an immediate opportunity to explain or deny the inconsistency?
(2) Is Plaintiff’s statement admissible to impeach Plaintiff AND as substantive evidence that she was not wearing her seat belt?

Answer 14

(1) No. The plaintiff need only be given an opportunity to explain or deny the inconsistency at some point. There is also never a need to allow this witness to explain or deny because this witness is an opposing party, which is an exception to the rule.
(2) Yes. This particular statement comes in for its truth even though it was made under oath because it qualifies as an opposing party’s statement.

Question 15

Why is evidence that a witness is biased or has an interest in the outcome of a case allowed?

Answer 15

Because it tends to show that the witness has a motive to lie.

Question 16

How may you establish foundation for extrinsic evidence of bias or interest?

Answer 16

The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination. Note that the court has discretion to permit extrinsic evidence even if the witness admits the bias.

Question 17

True or false: Evidence that is otherwise inadmissible, such as arrests or liability insurance, may be introduced if relevant to bias, regardless of whether foundation has been laid.

Answer 17

False. Evidence that is otherwise inadmissible may be introduced if relevant to bias, but only if proper foundation is laid first.

Question 18

How many a witness be impeached based on sensory deficiencies? (2 ways)

Answer 18

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts.

A witness may also be impeached by showing that they had no knowledge of the facts to which they testified?

Question 19

What is the foundation requirement for proving a sensory deficiency with extrinsic evidence?

Answer 19

None. (The witness does not need to be confronted with the impeaching fact, unlike with bias.)

Question 20

How may a witness be impeached with contradictory facts?

Answer 20

The cross-examiner can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination.

Question 21

Under what circumstances is extrinsic evidence permitted to impeach a witness based on contradictory facts?

Answer 21

Only if:

(1) The witness refuses to admit the mistake or lie, and
(2) The contradictory fact is not collateral (meaning it has significant relevance to the case or to the witness’s credibility)

Question 22

HYPO: In an auto accident case, Witness testifies for Plaintiff that, while leaning against a maple tree near the intersection of Yale and Harvard on March 1, he saw that the traffic light was red for Defendant as his car entered the intersection and hit Plaintiff. On cross-examination, Witness is asked (a) “Isn’t it a fact that the tree near the intersection of Yale and Harvard is an oak?” and (b) “Isn’t it a fact that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?” Witness insists that his direct testimony was accurate.

(1) During the defense, may Defendant properly prove that the tree at Yale and Harvard is an oak tree?
(2) During the defense, may Defendant properly call a police officer to testify that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?”

Answer 22

(1) No. The issue of what kind of tree was at Yale and Harvard is collateral and has no bearing on the credibility of the witness.
(2) Yes. The issue of whether the light was functioning is pertinent to the case, and the witness has refused to admit that their testimony was incorrect.

Question 23

How may a witness be impeached with reputation or opinion evidence of their own bad character for truthfulness?

Answer 23

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness to suggest that they were not telling the truth while on the stand. This is accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.

Question 24

HYPO: Larry testifies for the prosecution that he saw Defendant commit the crime. During the defense: Defendant calls Reverend Al to testify that Larry has a lousy reputation for truthfulness among members of Reverend Al’s congregation, and in Reverend Al’s opinion, Larry is not a truthful person.

(1) Admissible to suggest Larry’s testimony is false?
(2) May Reverend Al follow up his opinion as follows: “Let me tell you how I reached my opinion of Larry. During the past year, he lied to me on 6 separate occasions”?

Answer 24

(1) Yes. Larry testified, so he is subject to impeachment by opinion or reputation evidence of untruthfulness.
(2) No. The character witness may only give opinion or reputation evidence, not specific instances of conduct, not even to show why the character witness has the opinion.

Question 25

True or false: a witness may be impeached by proof of a conviction for any crime, without exception.

Answer 25

False.

Question 26

True or false: an arrest or indictment, without a conviction, is sufficient for the purposes of impeachment by criminal conviction.

Answer 26

False. Only a conviction will suffice.

Question 27

True or false: a pending review or appeal does not affect the use of a conviction for impeachment.

Answer 27

True.

Question 28

What are the limitations on impeachment by conviction for a crime of dishonesty or false statement?

Answer 28

The only limitation is that, generally, the date of conviction or the date of release from confinement (whichever is later) must have occurred within the 10 years prior to the witness’s testimony (with some exceptions).

Question 29

What are the limitations on impeachment by prior conviction of a criminal defendant for crimes not involving dishonest or false statement?

Answer 29

(1) The conviction must be for a felony.
(2) The conviction will be excluded if its probative value does not outweigh its prejudicial effect. (Note that this is more difficult than the standard Rule 403 balancing test.)
(3) The date of conviction or the date of release from confinement (whichever is later) must have occurred within the 10 years prior to the witness’s testimony (with some exceptions).

Question 30

What are the limitations on impeachment by prior conviction of anyone besides a criminal defendant for crimes not involving dishonest or false statement?

Answer 30

(1) The conviction must be for a felony
(2) The court will exclude the conviction if it determines that its probative value does not substantially outweigh its prejudicial effect.
(2) The date of conviction or the date of release from confinement (whichever is later) must have occurred within the 10 years prior to the witness’s testimony (with some exceptions).

Question 31

True or false: the court has discretion to bar impeachment by criminal conviction for a crime of dishonesty.

Answer 31

False.

Question 32

HYPO: Defendant is prosecuted for arson. At trial, Defendant testifies on his own behalf, urging that the fire was an accident. On cross-examination, may the prosecutor properly ask Defendant:

(1) Whether he was convicted 8 years ago for the misdemeanor of income tax fraud?
(2) Whether he was released from prison 9 years ago for his misdemeanor conviction for possession of marijuana?
(3) Whether he was convicted 2 years ago for the misdemeanor of shoplifting?
(4) Whether he was convicted 5 years ago for felony assault?

Answer 32

(1) Yes. Fraud is a crime of dishonesty, and the conviction occurred less than 10 years ago. The court has no discretion to exclude the conviction.
(2) No. Misdemeanor marijuana possession is not a crime of dishonesty, and it is not a felony conviction.
(3) No, for the same reasons as (2).
(4) Yes. Felony assault is not a crime of dishonesty, and since this is a criminal defendant, the probative value of the conviction must outweigh its prejudicial effect. Further, the conviction or release from confinement must have occurred within the previous 10 years. Here, the conviction occurred fewer than 10 years ago, and since this is a felony, it would be admissible subject to the court’s discretion under the appropriate balancing test (i.e., probative value outweighs its prejudicial effect).

Question 33

May a court ever admit a conviction older than 10 years? State the rule.

Answer 33

Yes. A court may admit an older conviction if:

(1) Its probative value substantially outweighs its prejudicial effect; and
(2) The proponent gives the adverse party reasonable written notice of their intent to use it

Question 34

Under what circumstances is foundation required for extrinsic evidence of a prior conviction?

Answer 34

None - that is, foundation is never required for extrinsic evidence of a prior conviction.

Question 35

True or false: If a party introduces evidence of their own prior conviction, they may claim on appeal that the conviction was erroneously admitted.

Answer 35

False

Question 36

A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either:

Answer 36

(1) The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or
(2) The pardon was based on innocence (irrespective of any subsequent convictions)

Question 37

Explain the admissibility of juvenile convictions for the purposes of impeachment.

Answer 37

Juvenile offenses are generally not admissible for impeachment purposes. However, in a criminal case, the judge has discretion to admit evidence of a juvenile offense committed by a witness other than the defendant if:

(1) The evidence would be admissible to attack the credibility of an adult, and
(2) If the evidence is necessary to the determination of the defendant’s guilt or innocence

Question 38

True or false: A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment.

Answer 38

True

Question 39

Under what circumstances may a witness be interrogated with respect to an act of misconduct for which the witness was not tried (meaning, the witness was never put on trial)? List all limitations and requirements.

Answer 39

If the act is probative of truthfulness (that is, an act of deceit or lying)

Limitations/Requirements:

(1) Subject to the discretionary control of the judge
(2) Must occur on cross-examination
(3) The cross-examiner must have a good-faith basis to believe the witness committed the misconduct
(4) Extrinsic evidence is strictly forbidden
(5) Cross-examiner may not refer to any consequences the witness may have suffered as a result of the bad act (e.g., if they were arrested for the act)

Question 40

HYPO: (1) Witness gives favorable testimony for Defendant. On cross-examination, Plaintiff asks Witness whether she assaulted her mail carrier 2 years ago (no charges were ever brought). Objectionable?

(2) After Witness testifies for Defendant, Plaintiff asks Witness whether she made false statements in an application for food stamps in July 2010 (no charges were ever brought). Objectionable?
(3) Same cross-examination. Witness vehemently denies making false statements in the application for food stamps. May Plaintiff thereafter call a welfare agent to prove that Witness made the false statements?

Answer 40

(1) Yes. This is not an act involving deceit or lying.
(2) No. This is an act of deceit or lying.
(3) No. Extrinsic evidence is not permitted to prove an act of deceit or dishonesty.

Question 41

HYPO: Federal prosecution of Dieter. Hans testifies for Dieter. On cross-examination, Hans is asked whether he was arrested 3 years ago for passing counterfeit money. Objectionable?

Answer 41

Yes. Even though passing counterfeit money is an act of deceit or lying, this is objectionable because it references his arrest.

Question 42

HYPO: Prosecution of Donald. Winston testifies for the prosecution. On cross-examination, Winston is asked whether he was arrested a month ago for selling marijuana and is awaiting trial on those charges. Permitted?

Answer 42

Yes. This is permissible because it goes to bias or interest. The defense is trying to show that Winston has an interest in cooperating with the prosecution because he’s trying to gain favor with the prosecution in his own interests.

Question 43

State the rule regarding impeachment on collateral matters.

Answer 43

Where a witness makes a statement not directly relevant to the issue in the case (i.e., a statement regarding a collateral matter), the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Question 44

The credibility of a hearsay declarant may be attacked by…

Answer 44

Any impeachment method and permissible evidence related to those methods.

Question 45

True or false: A hearsay declarant must be given the opportunity to explain or deny a prior inconsistent statement.

Answer 45

False

Question 46

True or false: The party against whom a hearsay declarant’s statement was offered may call the hearsay declarant as a witness and cross-examine them about the statement.

Answer 46

True

Question 47

For the purposes of impeachment of a hearsay declarant, a “hearsay declarant” means:

Answer 47

A person whose out-of-court statement has been admitted into evidence:

(1) Under an exception to the hearsay rule, or
(2) As a vicarious statement of an opposing party

Question 48

HYPO: Shooter is on trial for murder of Victim. In hospital bed, Victim told the nurse, “I’m feeling pretty good considering Billy Ray tried to kill me.” The next day, Victim told a visitor, “I know I’m about to die. Shooter’s the one who shot me.”
Prosecution introduces Victim’s statement to the visitor as a dying declaration. Should Shooter be allowed to introduce Victim’s statement to the nurse?

Answer 48

Yes. It is inconsistent with the declarant’s statement that has been admitted into evidence, so the prior inconsistent statement is admissible to cast doubt on the hearsay declarant’s statement to the nurse.

Question 49

A witness who has been impeached may be rehabilitated by:

Answer 49

(1) Explanation on redirect
(2) Evidence of good character for truthfulness
(3) A prior consistent statement

Question 50

Under what circumstances may a witness be rehabilitated by evidence of their good character for truthfulness?

Answer 50

If the witness’s general character for truthfulness has been attacked (by reputation or opinion testimony, prior convictions, or prior acts of misconduct), other witnesses may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness. However, testimony regarding specific acts of truthful conduct are still impermissible.

Question 51

Explain the 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement.

Answer 51

(1) If the witness’s testimony has been attacked by express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut the evidence.
(2) If the witness’s testimony is impeached on some other ground (e.g., an inconsistency or a charge of faulty memory), counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility.

Question 52

True or false: A prior consistent statement that is admissible to rehabilitate a witness’s credibility is also admissible as substantive evidence of the truth of its contents.

Answer 52

True

Question 53

HYPO: Tom v. Nicole. On July 1, pedestrian Tom was struck by a car driven by Nicole. Penelope, a stranger to Tom and Nicole at the time, witnessed the accident and told the police on July 1 that Tom looked sober as he crossed the street. At trial, 6 months later, Penelope testifies for Tom, “He looked sober as he crossed the street.”

(1) On cross-examination, Penelope is asked whether she was having memory problems due to a medication she was taking, to which she answers “No.” On re-direct, may Penelope properly testify that she told the police on July 1 that Tom had looked sober?
(2) Assume that on the cross-examination of Penelope, she is asked, “Isn’t it a fact that after this accident, you and Tom became close friends and are now living together as lovers?” to which she answers, “Yes.” On re-direct, may Penelope properly testify that she told the police on July 1 that Tom had looked sober?

Answer 53

(1) Yes. Her credibility has been attacked on the grounds of faulty memory, so a prior consistent statement is relevant to rehabilitate her credibility.
(2) Yes. Her implied motive to lie to protect Tom only arose after her prior consistent statement, so the prior statement is admissible to rehabilitate her credibility.