Impeachment

Question 1

what are the five methods of impeachment

Answer 1

1. bias
2. perception defect/ mental capacity
3. bad character for truthfulness
4. prior inconsistent statement
5. contradicting

Question 2

what kind of evidence can you use for bias impeachment

Answer 2

intrinsic and extrinsic

bias is always relevant!!

Question 3

what kind of evidence can you use for perception defect/ mental capacity

Answer 3

intrinsic and extrinsic

Question 4

when can you use defective perception/mental capacity

Answer 4

if witness has testified about perception using those sentence

defective recall is fair game if testified about past events

Question 5

what kind of evidence can you use for bad character for truthfulness

Answer 5

1. unconnected prior conduct –> intrinsic
2. prior criminal convictions –> intrinsic and extrinsic
3. opinion/ reputation –> intrinsic and extrinsic

Question 6

what are the three ways to prove bad character for truthfulness

Answer 6

1. unconvinced prior conduct
2. prior criminal convictions
3. opinion/ reputation

Question 7

what kind of convictions count for impeaching based on bad character using prior criminal convictions

Answer 7

a) felonies

b) misdemeanors that involved dishonesty

Question 8

what kind of convictions don’t count for impeaching based on bad character using prior criminal convictions

Answer 8

pardoned/ annulled convictions

juvenile convictions – unless offered against witness other than the accused and court thinks it’s necessary

Question 9

what’s the time limit for impeaching based on bad character using prior criminal convictions

Answer 9

10 years from date of conviction or

10 years from release from prison

whichever is LATER

Question 10

is there a way to get around the time limit for prior convictions when impeaching

Answer 10

if you give notice and the court finds that the probative value substantially outweighs prejudicial effect

Question 11

what is the balancing test for offering NON dishonest criminal convictions against a witness who is not ∆

Answer 11

does the prejudicial effect substantially outweigh the probative value?

Question 12

what is the balancing test for offering NON dishonest criminal convictions against the ∆

Answer 12

does the probative value outweigh the prejudicial effect?

Question 13

what kind of evidence can you use for impeaching with prior inconsistent statements

Answer 13

intrinsic or extrinsic – but witness must have chance to explain unless it’s not in the interest of justice

Question 14

what can you not use impeachment with prior inconsistent statements for

Answer 14

• collateral matters

Question 15

what is not a collateral matter

Answer 15

• bias
• sympathy
• truthful disposition
• matters witness raised on direct
• matters with substantive significance

Question 16

what can you not use as proof of a prior inconsistent statement

Answer 16

• silence after miranda
• statements after grant of immunity
• involuntary statements
• certain statements in plea bargaining or settlement negotiation

Question 17

when is the only time you should impeach your own witness

Answer 17

if you’re surprised and damaged

Question 18

what kind of evidence can you use for impeaching witness with contradiction

Answer 18

intrinsic and extrinsic

Question 19

what is the dual relevance test for extrinsic evidence admitted to impeach with contradiction

Answer 19

1. must be offered to contradict and
2. must be non collateral

Question 20

what are the 3 methods of rehabilitation

Answer 20

1. allow witness to explain on redirect
2. show good character for truthfulness
3. prior consistent statements

Question 21

what are 3 considerations before rehabilitation

Answer 21

1. must wait for attack
2. you can front the impeachable material
3. scope of rehabilitation is limited to the attack

Question 22

how can you show good character for truthfulness to rehab a witness

Answer 22

1. opinion/ reputation evidence of truthful character (from other witnesses)
2. evidence of specific instances of conduct bearing on good character (like witness returned a wallet)

Question 23

when can you use prior consistent statements to rehab witness

Answer 23

if opponent has suggested witness has motive to lie, and if witness is available for cross

Question 24

how should you rehab a bias attack

Answer 24

• if dishonesty is suggested, opinion/rep evidence for good character
• if motive to lie is suggested, prior consistent statements

Question 25

how to rehab perception/memory default

Answer 25

• counterproof that witness has good memory

Question 26

how to rehab bad character for truthfulness: prior convictions

Answer 26

• show act didn’t happen
• opinion/rep evidence for good character

Question 27

how to rehab bad character for truthfulness: opinion/reputation

Answer 27

• challenge the basis of the person’s opinion of witness (don’t even know him that well)
• cross ex the opponent about specific acts witness has done that show good character
• call another person to offer opinion/rep evidence for good character

Question 28

how to rehab prior inconsistent statement

Answer 28

• allow impeached witness to explain or deny
• if dishonesty is implicated, offer opinion/rep showing good character
• if prior statement suggests motive to lie at specific moment in time, offer prior consistent statement that predates the motive
• prior consistent statement can rehab when attacked on other grounds too

Question 29

how to rehab contradictory evidence

Answer 29

• attack the evidence
• let your witness tell the story again