Impeachment Flashcards
what are the five methods of impeachment
- bias
- perception defect/ mental capacity
- bad character for truthfulness
- prior inconsistent statement
- contradicting
what kind of evidence can you use for bias impeachment
intrinsic and extrinsic
bias is always relevant!!
what kind of evidence can you use for perception defect/ mental capacity
intrinsic and extrinsic
when can you use defective perception/mental capacity
if witness has testified about perception using those sentence
defective recall is fair game if testified about past events
what kind of evidence can you use for bad character for truthfulness
- unconnected prior conduct –> intrinsic
- prior criminal convictions –> intrinsic and extrinsic
- opinion/ reputation –> intrinsic and extrinsic
what are the three ways to prove bad character for truthfulness
- unconvinced prior conduct
- prior criminal convictions
- opinion/ reputation
what kind of convictions count for impeaching based on bad character using prior criminal convictions
a) felonies
b) misdemeanors that involved dishonesty
what kind of convictions don’t count for impeaching based on bad character using prior criminal convictions
pardoned/ annulled convictions
juvenile convictions – unless offered against witness other than the accused and court thinks it’s necessary
what’s the time limit for impeaching based on bad character using prior criminal convictions
10 years from date of conviction or
10 years from release from prison
whichever is LATER
is there a way to get around the time limit for prior convictions when impeaching
if you give notice and the court finds that the probative value substantially outweighs prejudicial effect
what is the balancing test for offering NON dishonest criminal convictions against a witness who is not ∆
does the prejudicial effect substantially outweigh the probative value?
what is the balancing test for offering NON dishonest criminal convictions against the ∆
does the probative value outweigh the prejudicial effect?
what kind of evidence can you use for impeaching with prior inconsistent statements
intrinsic or extrinsic – but witness must have chance to explain unless it’s not in the interest of justice
what can you not use impeachment with prior inconsistent statements for
- collateral matters
what is not a collateral matter
- bias
- sympathy
- truthful disposition
- matters witness raised on direct
- matters with substantive significance
what can you not use as proof of a prior inconsistent statement
- silence after miranda
- statements after grant of immunity
- involuntary statements
- certain statements in plea bargaining or settlement negotiation
when is the only time you should impeach your own witness
if you’re surprised and damaged
what kind of evidence can you use for impeaching witness with contradiction
intrinsic and extrinsic
what is the dual relevance test for extrinsic evidence admitted to impeach with contradiction
- must be offered to contradict and
- must be non collateral
what are the 3 methods of rehabilitation
- allow witness to explain on redirect
- show good character for truthfulness
- prior consistent statements
what are 3 considerations before rehabilitation
- must wait for attack
- you can front the impeachable material
- scope of rehabilitation is limited to the attack
how can you show good character for truthfulness to rehab a witness
- opinion/ reputation evidence of truthful character (from other witnesses)
- evidence of specific instances of conduct bearing on good character (like witness returned a wallet)
when can you use prior consistent statements to rehab witness
if opponent has suggested witness has motive to lie, and if witness is available for cross
how should you rehab a bias attack
- if dishonesty is suggested, opinion/rep evidence for good character
- if motive to lie is suggested, prior consistent statements
how to rehab perception/memory default
- counterproof that witness has good memory
how to rehab bad character for truthfulness: prior convictions
- show act didn’t happen
- opinion/rep evidence for good character
how to rehab bad character for truthfulness: opinion/reputation
- 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
how to rehab prior inconsistent statement
- 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
how to rehab contradictory evidence
- attack the evidence
- let your witness tell the story again
