Impeachment

Question 1

Impeachment by prior inconsistent statement

Answer 1

For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material party of her present testimony. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. An inconsistent statement may be proved by either examination of the witness or by extrinsic evidence. To prove a prior inconsistent statement by extrinsic evidence, the witness generally must be given an opportunity at some point to explain or deny the allegedly inconsistent statement (even after the statement is introduced), and the statement must be relevant to some issue in the case.

Question 2

Impeachment - prior bad acts

Answer 2

A witness can be impeached on cross-examination by inquiry into a specific act of misconduct that is probative of truthfulness. Counsel must have a good faith basis for such inquiry. However, a witness may not be impeached by extrinsic evidence of bad acts. If the witness denies the act on cross-examination, extrinsic evidence cannot be offered to refute the answer.

Question 3

Bolstering witnesses

Answer 3

A party cannot bolster the testimony of a witness until the witness has been impeached.

Question 4

Impeachment of a hearsay declarant

Answer 4

Generally, when a hearsay statement is admitted into evidence, the party against whom the statement is offered has the opportunity to impeach the credibility of the declarant by evidence that would be admissible if the declarant had testified as a witness. The statement will only be admissible to impeach the declarant’s credibility and not as substantive evidence of the statement.

Question 5

Impeachment - general rules

Answer 5

A witness’s credibility may be attacked by any party, including the party calling her.

Question 6

Impeachment by prior conviction

Answer 6

A witness’s character for truthfulness may be attacked by
1. any felony; or
2. any crime, if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement.
If a felony is not one that involves dishonesty or false statement, the court has discretion to exclude it it fails the Rule 403 balancing test (i.e., if the probative value of introducing the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc.). A different balancing test applies where the witness is a criminal accused.
A conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date.
The trial court has no discretion to disallow impeachment by convictions of crimes involving dishonesty or false statement.

Question 7

Impeachment on a collateral matter

Answer 7

Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair surprise, confusion of issues, and undue consumption of time. An issue is considered collateral if it would not be admissible other than to contradict the testimony. Evidence that a person has previously filed similar claims is generally inadmissible to show the invalidity of the present claim.