Impeachment Flashcards
Impeachment Evidence
Offered to attack a witness’s credibility (as opposed to substantive evidence offered to prove some fact at issue in the case)
Any party may impeach a witness, even their own witness
Bolstering
A party is not permitted to bolster the testimony of their witness until the witness has been impeached (i.e., introducing a prior consistent statement)
Exceptions:
-Evidence that a witness made a timely complaint
-Prior statement of identification (i.e., identifying D as perpetrator of charge crime)
Impeachment Methods
Cross examination: eliciting facts from the witness that discredit their own testimony; or
Extrinsic evidence: calling other witnesses or introducing documents that prove the impeaching facts
Prior Inconsistent Statements
A party may show that the witness has, on another occasion, made statements inconsistent with their present testimony
-Impeaches a witness with facts that are specific to the current case
-By extrinsic evidence or cross-examination
Foundation for extrinsic evidence*:
Can be introduced to prove a prior inconsistent statement only if, at some point before or after introduction of extrinsic evidence:
-Witness is given an opportunity to explain or deny the statement
-Adverse party is given opportunity to examine witness about the statement
*Not applicable if prior inconsistent statement is an opposing party’s statement or when made by a hearsay declarant
A testifying witness’s prior inconsistent statement say also be admissible as substantive evidence when it was made under oath at a prior proceeding
-Admissible non-hearsay
Bias of Interest
A witness can be impeached by showing that he is biased or has an interest in the outcome of the case
-Shows witness has a motive to lie
-By extrinsic evidence or cross-examination
-Evidence that is otherwise admissible may be introduced if relevant to bias
Foundation for extrinsic evidence:
-Witness must first be asked about the facts that show bias or interest on cross-examination
Sensory Deficiencies
A witness may be impeached by showing that their faculties were so impaired that it is doubtful that they could have perceived those facts
-By extrinsic evidence or cross examination
-No foundation requirement for extrinsic evidence
Contradictory Facts
A cross-examiner is allowed to question the witness to make him admit he lied or was mistaken about some fact testified to during direct
-If witness admits mistake, he is impeached
-If he sticks to the story, extrinsic evidence is permitted to prove contradictory fact unless the fact is collateral (not significantly relevant)
Opinion or Reputation Evidence for Witness’s Untruthfulness
A witness can be impeached with reputation or opinion evidence of their own bad character for UNTRUTHFULNESS
-Not specific acts of untruthfulness
Conviction of Crime
A witness may be impeached by proof of a conviction for certain crimes (ARREST OR INDICTMENT IS NOT SUFFICIENT; pending review irrelevant):
-Any crime involving dishonesty or false statement (no discretion to exclude)
-A felony not involving dishonesty (discretion depends on type of witness):
-Criminal Defendant Witness –> exclude when prosecution has not
shown that probative value outweighs prejudicial effect (favors
exclusion)
-All other witnesses –> exclude when probative value is substantially
outweighed by prejudicial effect (403 - favors admission)
-Crimes older than 10 years (later of conviction or release) are INADMISSIBLE unless extraordinary circumstances
-Reverse 403 test that strongly favors exclusion + written notice
-A pardoned conviction based on innocence or rehabilitation cannot be used to impeach
-Juvenile convictions are generally inadmissible
Prior conviction is introduced on cross-examination or by introducing a record of judgement extrinsic evidence - NO FOUNDATION REQUIRED)
Other Bad Acts Involving Untruthfulness
A witness may be impeached with an act of misconduct if the act is probative of untruthfulness (does not cover asking about arrests)
-On cross examination only, must be in good faith
-NO extrinsic evidence allowed
-i.e., lying on income tax statement
Impeachment on Collateral Matter
A witness cannot be impeached on a collateral (not significant) matter by extrinsic evidence or by a prior inconsistent statement
Impeachment of Hearsay Declarant
A hearsay declarant may be impeached by ANY impeachment method
-Does not need to be given the opportunity to explain or deny a prior inconsistent statement
-Includes hearsay that falls into exception or as a vicarious statement
Rehabilitation
A witness who has been impeached may be rehabilitated by:
-Explaining or clarifying facts on redirect
-A witness’s bad character for truthfulness can be repaired by reputation or opinion testimony about the witness’s good character for truthfulness
-Prior consistent statements (two methods)*:
1. To rebut an implication a witness was lying or exaggerating because of a motive; or
2. To rebut an attack of faulty memory
