Impeachment

Question 1

When can a party bolster/accredit their witness?

Answer 1

Not until witness has been impeached. Except, in certain cases, can offer evidence that witness made a timely complaint (e.g. sexual assault) or a prior statement of ID before being impeached.

Question 2

Which party can impeach the witness?

Answer 2

Any party - including one who called.

Question 3

How can witness be impeached? (what forms of evidence)

Answer 3

Cross exam or extrinsic evidence

Question 4

What types of evidence/reasons can witness be impeached with?

Answer 4

(a) Prior inconsistent statement
(b) bias/interest in outcome evidence
(c) sensory deficiencies
(d) contradictory facts
(e) opinion/reputation evidence re untruthfulness
(f) conviction of certain crimes
(g bad acts involving untruthfulness

Question 5

If a prior statement omits a fact said during testimony is that considered inconsistent for purposes of impeachment?

Answer 5

Only if it would have been natural for witness to have said fact before.

Question 6

When can prior inconsistent statements be admitted to prove truth of matter, as opposed to just impeachment?

Answer 6

When it was made under oath at prior proceeding.

Question 7

What foundation is required to introduce extrinsic evidence of prior inconsistent statements to impeach a witness?

Answer 7

• witness must be given opportunity to explain/deny statement at some point (before or after introduction of evidence)
• adverse party is given opportunity to examine witness

Question 8

When are the foundational req’s for introduced extrinsic evidence of prior inconsistent statements to impeach a witness not req’d?

Answer 8

• opposing party statements
• hearsay declarant statements
• justice requires (unavailable)

Question 9

Can extrinsic evidence be introduced to impeach a witness for bias?

Answer 9

Not until the witness has been asked about the facts re the bias on cross-exam. (Court can admit extrinsic evidence regardless of whether witness denies bias).

Question 10

Is there a foundational req for introducing extrinsic evidence re sensory deficiencies/no knowledge of facts?

Answer 10

No.

Question 11

Is extrinsic evidence allowed to be introduced to impeach witness by contradiction (i.e. lied/mistaken about facts)?

Answer 11

Once witness is questioned re contradiction on cross exam, if the witness denies contradiction/sticks to story - then extrinsic evidence is permitted unless re a collateral issue.

Question 12

Can witness be impeached by character evidence? What forms?

Answer 12

Yes, can be impeached by reputation/opinion CE for truthfulness.

Question 13

What types of prior crimes may witnesses be impeached with? Must/may court admit?

Answer 13

• Court MUST admit any conviction (felony, misdemeanor) involving dishonest (fraud, perjury, etc)
• Court MAY admit felony convictions re other crimes (no misdemeanors)

Note: no arrests, charges

If over 10 yrs have elapsed since date of conviction or release, whichever is later, then its NOT admissible. UNLESS probative value substantially outweighs prejudicial effect + written notice.

Question 14

When witness is impeached with felony non-crimen falsi conviction, what balancing test does court apply?

Answer 14

Criminal D impeached: prosecution must show probative value outweighs prejudicial effect

Other witnesses: 403

Question 15

Is a foundation req’d to introduce extrinsic evidence of prior convictions?

Answer 15

No

Question 16

If prior conviction was pardoned can it be used to impeach a witness?

Answer 16

Not if pardon was based on rehabilitation + witness not convicted subsequent felony OR pardon based on innocence

Question 17

What prior bad acts (not convictions) may be used to impeach a witness?

Answer 17

Only if its re truthfulness. but can NOT ask re arrests

Question 18

When impeaching a witness for prior bad acts, is extrinsic evidence allowed?

Answer 18

No, and cannot refer to consequences from bad acts.

Question 19

If witness makes false statement re collateral matter, may they be impeached?

Answer 19

Not by prior inconsistent statement nor extrinsic evidence.

Question 20

Can hearsay declarant be impeached?

Answer 20

Yes, by any of the evidence that would be admissible if the hearsay declarant were a witness. Also, declarant need not be given opportunity to explain prior inconsistent statements.

Question 21

How can a witness be rehabilitated?

Answer 21

Once impeached, a witness can be rehabilitated by:

• clarifying on redirect
• witnesses re reputation/opinion for truthfulness if that was attacked
• prior consistent statements (some circumstances)

Question 22

When witness has been impeached for bad character of untruthfulness, can they be rehabilitated with specific acts re truthfulness?

Answer 22

No, only with reputation/opinion testimony.

Question 23

Can you rehab witness re any trait?

Answer 23

No, must be for trait which was attacked.

Question 24

When can you rehab witness with prior consistent statements?

Answer 24

(A) If witness impeached on grounds that they are lying due to some motive - if statements come from BEFORE motive arose
(B) If witness was impeached for any reason except truthfulness + evidence is relevant to specific attack (e.g. faulty memory)

Note: In latter case, statement will also be admissible for truth of the matter