Impeachment Flashcards
What is substantive evidence
Evidence offered to support a fact in issue**, as to the **necessary elements of the case (vs. evidence that goes to procedural or collateral issues).
Ex: hearsay v. nonhearsay
In a defamation case, P offers a statement by D that “P is a thief”.
What type of statement is this?
Non-hearsay
P is not offering the statement to prove that he is, in fact, a thief.
Rather, as substantive evidence of slander. As such, the statement is not being offered to prove the TOMA (that plaintiff is a thief), and the statement is therefore non-hearsay.
Ex: hearsay v. nonhearsay
D offers evidence of a statement made by P “D, I am going to attack you!!” as a claim for self-defense.
What type of statement is this? hearsay v. nonhearsay?
Non-hearsay
D is not offering the statement to prove the truth of whatever was said to D*, but rather to prove that D believed he would be attacked, and therefore was reasonable in defending himself against the attack –> which is substantive evidence as to why D acted the way he did.
* if it was being offered to prove the TOMA it would be to prove whether it was true that P said that to D
What is impeachment?
Evidence used to discredit a witness’s testimony
What is the point of offering evidence to impeach a witness?
To show that the witness CANNOT be trusted
Evidence offered to impeach a witness is NOT offered as what type of evidence?
it is NOT offered as substantive evidence
What is bolstering?
An attempt to strengthen the testimony of a witness
When can a witness’s testimony be strengthened?
When the witness has been impeached
When the witness has been impeached their reputation can be ____________________ ?
Rehabilitated
Is bolstering permissible?
Generally NO
List (2)
When IS bolstering allowed
To offer evidence: (1) That witness made a timely complaint (i.e. sexual assault case) (2) of a Prior Statement of Identification (i.e. identify D as perpetrator of crime)
Which party can impeach a witness?
Any party!
(even the party that called the witness to the stand)
Old CL
When a party impeaches their own witness AVOID these wrong answer choices
CL says witness cannot be impeached unless:
- W is an adverse party or identifies with an adverse party
- W is hostile/uncooperative
- W is one whom party is required by law to call
- W gives surprise testimony that is harmful to party calling them
List (2)
Through what methods can witness be impeached
hint: think of when the witness is on the stand and being asked Q
W can be impeached by:
- Cross-examination
- Extrinsic Evidence - sometimes (C-CRISP scenarios)
“C-CRISP”
What impeachment methods allow the use of extrinsic evidence?
When can you C-CRISP (aka burn aka impeach) the W?
These impeachment methods allow the use of EE
- Conviction of crimes
- Contradictory facts
- Reputation + opinion for untruthfulness
- Bias/Interest
- Sensory deficiencies
- Prior inconsistent statement
If extrinsic evidence is to be used in one of the five CRISP scenarios, then that evidence cannot be:
COLLATERAL
How can cross-examination be used to impeach a witness?
Elicit facts from W that will discredit the W’s testimony
**Remember** Same party can impeach its own witness in which case it will be through direct examination
List (2)
How can extrinsic evidence be used to impeach a witness?
Hint: who/what can be used?
- Calling other witnesses or
- Introducing certain documents that prove impeaching facts
“FIBS” , “CrOB” list (7)
What are the impeachment methods
Fact specific to current case: (“FIBS” or “CIBS”)
- Contradictory Facts
- Prior inconsistent statement *
- Bias or Interest to misrepresent*
- Sensory Deficiencies
General bad character for truthfulness (“CrOB”)
- Conviction of Crime*
- Opinion or Reputation for Untruthfulness*
- Bad Acts Involving truthfulness or untruthfulness*
* most commonly tested
FIBS - like lies or CIBS - like sibs , which ever one you remember better
CrOB - pronounced like Krob, like Rob Jr. Kardashian who posted revenge corn of Blac Chyna, and whath he did was a bad act + untruthful so, that’s how youll remember CrOB
*foundation*
How is a witness impeached by prior inconsistent statements
and what methods (ie what type of examination) - hint 2 methods
Through use of extrinsic evidence or cross-examination to show that W has made prior statements that are inconsistent with the present testimony
When using _______ to impeach a witness through prior inconsistent statements, _________ needs to be laid
extrinsic evidence; proper foundation
When using extrinsic evidence to impeach a witness through prior inconsistent statements, need:
- proper foundation -and-
- prior statement relevant to some issue in current case
*hearsay exception*
Are prior inconsistent statements hearsay?
Yes unless
- made under oath which case become nonhearsay -OR-
- used to impeach - still hearsay but permissible for impeachment purposes
When a PIS is made under oath this means that it was made under?
and what does this make the PIS?
pains and penalties of perjury at a prior hearing, trial, depo, or other proceeding making it admissible nonhearsay
At deposition: Witness says “Car ran a red light”
On the stand: Witness says “I dont remember if car ran red light”
Prior inconsistent statement?
(generally) NO
(unless ct thinks witness is faking memory loss)
If a fact is OMITTED in a prior statement and then MENTIONED in the current testimony, is this an instance of a prior inconsistent statement?
It’s a PIS ONLY IF:
- it would have been normal/expected to mention that fact in the prior statement and
- the witness believed that fact to be true
At deposition: Witness says “I dont remember if car ran red light”
On the stand: Witness says “Car ran a red light”
Prior inconsistent statement?
(generally) YES!
PIS ONLY IF:
- it would have been normal/expected to mention that fact in the prior statement and
- the witness believed that fact to be tru
When can prior inconsistent statements be used?
because PIS are hearsay… can only be used
- if PIS was made under oath in which case it’s nonhearsay and therefore admissible -OR-
- IMPEACH a witness
If prior inconsistent statements are offered under oath then…?
they become nonhearsay and are admissible as substantive evidence
List (2)
How is foundation laid to use extrinsic evidence to prove PIS?
At some point before or after introducing extrinsic evidence:
- Witness is given the opportunity to explain or deny statement - witness = explain or deny
- Adverse party given the opportunity to examine the witness about the statement - adverse = examine
list 2
To prove a PIS by extrinsic evidence
the W?
the evidence?
- The W must be given opportunity to explain or deny
- The evidence must be relevant to some issue in the case
*exception* List (3)
When is foundation for extrinsic evidence for PIS NOT needed?
- If PIS is the opposing party’s statement
- PIS is that of a hearsay declarant, foundation not need to impeach him
- When justice so requires (i.e. witness has left stand and unavailable when inconsistent statement was discovered
How is a witness impeached by bias/interest
Through evidence that witness is biased or has an interest in outcome of case (and tends to show W has motive to lie)
Is foundation needed for extrinsic evidence to impeach a witness on bias or interest?
FRE are silent - court’s discretion
How is foundation for impeaching a witness on bias or interest laid?
(majority rule)
Witness must first be asked about facts** that **show bias or interest during cross-examination
💡 TIP, “CRISP”
Can the court admit extrinsic evidence if the witness admits or denies to bias or interest
YES
(W says, yes I do have these reasons to slant testimony)
💡 TIP: can use bias/interest to introduce evidence that may otherwise be inadmissible (i.e. arrests, liability insurance)
“CRISP”
How is a witness impeached by
sensory deficiencies?
Show that witness’s perception or recollection of events was impaired through:
- Use of extrinsic evidence -OR-
- Questions during cross-examination to
(drunk, drugged, bad eyesight, bad hearing, bad memory etc)
Is foundation needed for extrinsic evidence to impeach a witness on sensory deficiencies?
No
How is a witness impeached by contradiction?
Cross-examiner can make witness admit they lied or were mistaken about some facts they testified to during direct examination.
ADMIT → CONTRADICTION → IMPEACHMENT
“CRISP”
If the witness does NOT contradict themselves, can extrinsic evidence be used to impeach them?
YES,
unless the contradictory fact is collateral (aka no significant relevance to case or witness’s credibility)
Can specific acts of conduct be used to explain
reputation or opinion evidence for untruthfulness?
NO
Reputation or opinion testimony; “CRISP”
Can extrinsic evidence be used to prove
reputation or opinion for untruthfulness?
YES
Bad acts for un/truthfulness
If the W denies the specific bad act for un/truthfulness, can extrinsic evidence be brought in?
NO!
What types of crimes are permissible to admit as evidence to impeach a witness on the basis of conviction?
- Crimes involving dishonesty or false statements (i.e.lying that the light was red)
-
Felonies which DON’T involve dishonesty/false statements
- and will likely need to show probative > prejudicial
What crimes are considered to involve dishonesty or false statements?
hint: aka crimen falsi
Crimes which involve uttering or writing of false words
Examples: perjury, false statements, criminal fraud, embezzlement, false pretenses
Felonies not involving crime or dishonesty _________ admissible
are NOT automatically admissible
What type of test is used to admit felonies which do not include dishonesty or false statement admitted as evidence for conviction of crime to impeach a witness?
by using a balancing test
For witness who is a defendant what is the balancing test to impeach them based on felonies which do not involve dishonesty/false statement
prosecution has to show
probative > prejudicial
if prosection fails to show then inadmissible
Hint: this is the standard 403 balancing test
For a witness who is a someone other than a defendant what is the balancing test to impeach them based on felonies which do not involve dishonesty/false statement
court exclude if:
probative < prejudicial
probative substantially outweighed by prejudicial, then excluded
Are past convictions (crimes -OR- felonies) involving or not involving crime/dishonesty admissible?
If more than 10 years have passed, (generally) NO
10 years = since date of conviction or release (which ever is later)
conviction is considered too remote
D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:
convicted 8 years ago for misdemeanor of tax fraud?
YES.
Tax fraud is a crime of dishonesty
D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:
released 9 yrs ago from prison for misdemeanor of marijuana possession?
NO.
not a crime of dishonesty and not a felony
D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:
convicted 2 yrs ago for misdemeanor of shoplitfing
NO.
not a crime of dishonesty and not a felony
D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was:
convicted 5 yrs ago for felony assault
Felony assault = Felony
prosecution needs to show that
probative > prejudicial
List (2)
Under what conditions may the court admit a prior conviction older than 10 yrs?
Under extraordinary circumstances where:
- probative >>> prejudicial (reverse 403)
- Proponent gives other party reasonable and written notice of intent to use it
Is foundation needed for extrinsic evidence to impeach a witness on conviction of crimes?
what are prior convictions shown through?
NO
prior conviction usually shown through direct or cross-examination (+ other methods)
Why might a party introduce evidence of its own prior conviction?
really just to get the upper hand of having the jury hear it from you rather than through cross-examination
If a party brings up their own prior conviction what can/can’t they do in regards to its admission?
Claim on appeal that it was erroneously admitted
Is a prior conviction admissible if it was pardoned?
NO. Cannot be used
Need pardon +
- pardon based on rehabilitation AND witness has not been convicted of subsequent felonies (bc if subsequent felony then you weren’t rehabbed)
- pardon based on innocence (irrespective of subsequent convictions )
Are juvenile convictions admissible?
(generally) NO
unless…
- attacking credibility of adult, and
- evidence necessary to determine accussed’s guilt or innocence
Is a constitutionally defective conviction admissible?
NOOOO!!!
invalid for ALL purposes inc. impeachment
How is a witness impeached by
bad acts involving untruthfulness
Through cross-examination about an act of misconduct that is probative of truthfulness (act of deceit or lying)
Subj to discretion of judge
If the cross examiner wants to impeach a witness based on bad acts involving untruthfulness, what basis is needed?
Good-faith basis that the witness committed the misconduct
*foundation*
Is foundation needed for extrinsic evidence to impeach a witness on bad acts involving untruthfulness?
NOOO!!!!!
Extrinsic evidence NOT allowed
Through what method can a witness be impeached regarding bad acts involving untruthfulness?
only through cross-examination (extrinsic evidence NOT allowed)
When impeaching a witness based on bad acts involving untruthfulness what is the cross-examiner not allowed to refer to
bonus point: explain rationale
consequences the W faced bc of those bad acts (i.e. cant say “isn’t it true that you were arrested bc of embezzelement”)*
rationale: consequence is 3rd persons opinion that W committed act aka extrinisic evidence
*can say “isnt it true you embezzeled money from your employer?” but cant ask where you arrested
Remember bad acts asking only about the ACT not the consequences
–
How is impeachment on collateral matters treated?
cannot provide extrinsic evidence or use PIS because it’s a collateral matter so prosecution/defense won’t spend time dealing with the collateral info
How does impeachment of a hearsay declarant work?
Hearsay declarant’s credibility can be impeached through evidence that would be admissible as if the HD had testified as a W.
if HD credibility attacked, can be supported
By what impeachment methods can the HD be impeached?
ALL!
What makes a hearsay declarant different from a witness
HD does not need to be given chance to explain or deny a PIS
rationale: the HD previously offered the statement as true and had the opportunity at that time to explain their statement…thus, when impeaching them on credibility/truthfulness the PIS is used to attack the HD’s truthfulness by offering the PIS to show that the HD knowingly offered a false or uncertain statement in the past
Who can call the hearsay declarant to cross-examine?
The party against whom the HD’s statement was offered
delete if needed; list (2)
Who is a hearsay declarant
HD is person who’s out of court statement has been admitted
- under hearsay exception or
- vicarious statement of opposing party
List (3)
How can a witness be rehabilitated?
- Explanation on redirect
- Good character for truthfulness
- Prior consistent statements
How is a witness rehabilitated on explanation on redirect?
W explains or clarifies facts that were brought out during cross
How is a witness rehabilitated on good character for truthfulness?
When W1 attacked for bad character, other W’s can testify to W1 good character through reputation or opinion testimony
*** no specific acts ***
Through what type of testimony can a W be rehabilitated using good character for truthfulness?
reputation, opinion, specific acts?
through reputation or opinion testimony ONLY
NO specific acts
Rehabilitation should rehab same facts as attack
i.e. W attacked for bad eyesight. cannot rehab for good character for truthfulness
–
list (2)
How is a witness rehabilitated using prior consistent statements?
- If W is attacked by explict or implicit motive to lie, PCS made before alleged onset of motive can be used
- W impeached on other grounds (except general attack on truthfulnes), can use PCS if it has tendency to rehab witness
A prior consistent statement admissible to rehab witness is also admissible as what type of evidence?
substantive evidence!
Are prior inconsistent statements admissible as substantive evidence for their truth?
NO comes into only to impeach unless
PIS was given under oath at a legal proceeding → then also comes in as substantive evidence
Which impeachment methods require foundation to be laid?
- Prior inconsistent statements when using extrinsic evidence
- Bias/interest - FRE silent; up to courts which have a majority rule (ask about bias/interest during cross before impeaching)
List (2); Erou gtrw
Specific acts are NOT allowed for:
- Even Really Old Uncles*
- Get* Crazy andToo Rowdy on Wednesdays
- to explain reputation or opinion evidence for untruthfulness
- using good character for truthfulness to rehab a witness
Extrinsic evidence is NOT allowed for:
- impeaching a witness re: bad acts of D involving D’s untruthfulness
- collateral matters
Remember: no foundation required to impeach PIS of a HD
rationale?
since the first statement was admitted improperly as hearsay, it is not necessary to establish a foundation to impeach that HD
Although extrinsic evidence is usually NOT allowed of bad acts of D involving D’s untruthfulness, what is the one scenario in which can be used
Only if a witness is impeached with a prior conviction (even where the act did not result in a conviction)
Who is a hearsay declarant
A declarant, generally speaking, is anyone who composes and sing a statement or declaration alleging that the information he has given therein is true.
