Impeachment Flashcards
When can a party bolster/accredit their witness?
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.
Which party can impeach the witness?
Any party - including one who called.
How can witness be impeached? (what forms of evidence)
Cross exam or extrinsic evidence
What types of evidence/reasons can witness be impeached with?
(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
If a prior statement omits a fact said during testimony is that considered inconsistent for purposes of impeachment?
Only if it would have been natural for witness to have said fact before.
When can prior inconsistent statements be admitted to prove truth of matter, as opposed to just impeachment?
When it was made under oath at prior proceeding.
What foundation is required to introduce extrinsic evidence of prior inconsistent statements to impeach a witness?
- 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
When are the foundational req’s for introduced extrinsic evidence of prior inconsistent statements to impeach a witness not req’d?
- opposing party statements
- hearsay declarant statements
- justice requires (unavailable)
Can extrinsic evidence be introduced to impeach a witness for bias?
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).
Is there a foundational req for introducing extrinsic evidence re sensory deficiencies/no knowledge of facts?
No.
Is extrinsic evidence allowed to be introduced to impeach witness by contradiction (i.e. lied/mistaken about facts)?
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.
Can witness be impeached by character evidence? What forms?
Yes, can be impeached by reputation/opinion CE for truthfulness.
What types of prior crimes may witnesses be impeached with? Must/may court admit?
- 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.
When witness is impeached with felony non-crimen falsi conviction, what balancing test does court apply?
Criminal D impeached: prosecution must show probative value outweighs prejudicial effect
Other witnesses: 403
Is a foundation req’d to introduce extrinsic evidence of prior convictions?
No
If prior conviction was pardoned can it be used to impeach a witness?
Not if pardon was based on rehabilitation + witness not convicted subsequent felony OR pardon based on innocence
What prior bad acts (not convictions) may be used to impeach a witness?
Only if its re truthfulness. but can NOT ask re arrests
When impeaching a witness for prior bad acts, is extrinsic evidence allowed?
No, and cannot refer to consequences from bad acts.
If witness makes false statement re collateral matter, may they be impeached?
Not by prior inconsistent statement nor extrinsic evidence.
Can hearsay declarant be impeached?
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.
How can a witness be rehabilitated?
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)
When witness has been impeached for bad character of untruthfulness, can they be rehabilitated with specific acts re truthfulness?
No, only with reputation/opinion testimony.
Can you rehab witness re any trait?
No, must be for trait which was attacked.
When can you rehab witness with prior consistent statements?
(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
