impeachment

Question 1

Accrediting/bolstering W’s testimony

Answer 1

generally prohibited

Question 2

ways to impeach

Answer 2

1. prior inconsistent statements
2. bias
3. sensory deficiencies
4. contradiction
5. opinion or reputation re untruthfulness
6. prior convictions
7. prior bas acts involving untruthfulness

Question 3

PIS

Answer 3

here just offered for impeachment (not substantiveley bc hearsay, but if under oath then can be hearsay exclusion aka nonhearsay)

methods: examination of W or with EE

EE must be relevant and meet foundation
* must not be collateral
* not collateral = Probative of some fact of consequence or says something about the W’s credibility beyond just showing the W made an inconsistent statement
* at some point during case, W must have opportunity to explain or deny and adverse party opportunity to examine the W about the statement
* exceptions: (1) where PIS is opposing party statement, (2) whereh hearsay declarant is being impeached, (3) where justice so requires e.g. witness has lef the stand and is unavilable

note: hearsay declarants can be impeached to the same extent as those in court

Question 4

bias

Answer 4

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie

EE allowed, but W generally must be questioend about bias first

Question 5

sensory deficiencies

Answer 5

Admissible on examination of witness or by EE, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts

no foundation required and W need not be confronted with impeaching fact first

Question 6

contradiction

Answer 6

Cross-examiner can try to make W admit that they lied or were mistaken about some fact they testified to during direct examination
* if they admit, they have been impeached by contradiciton
* but if they dont then EE may be used to prove contradictory fact
* EE generally permitted unless impeaching fact is collateral

Question 7

Opinion or reputation evidence of untruthfulness

General Bad Character for Truthfulness

Answer 7

Testimony admissible to show impeached witness has poor character for truthfulness

no limit on EE

Question 8

prior convictions

General Bad Character for Truthfulness

Answer 8

W can be impeached with any crime involving dishonesty or false statement
* No 403 balancing –> admissible; cannot be excluded
* but still, cannot be character evidence to show conduct in case

Felony not involving dishonesty or false statement
* If W being impeached is a criminal defendant: court excludes conviction unless probative value outweighs prejudicial effect (reverse 403; harder test, burden on prosecution)
* Any other W: court excludes conviction if probative value is substantially outweighed by prejudicial effect (403 balancing w burden on contesting party)

Misdemeanors for crimes that do not involved false statement, are inadmissible to impeach

Remoteness: generally conviction is inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later
* court may allow if probative value substantially outweighs unfair prejudice (reverse 403)

impeachment by prior convictions can occur on examination or thru EE and no foundation necessary

Question 9

prior bad acts

General Bad Character for Truthfulness

Answer 9

Act of misconduct if probative of truthfulness (act of lying/deceit)

The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about

Interrogation permitted
* If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer.
* But court has discretion to limit or stop such inquiry

EE prohibited
* A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness
* If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

Question 10

Impeaching a Hearsay Declarant

Answer 10

Impeached to same extent as in-court witness

need not be given opporunity to explain or deny inconsistent statement

Question 11

Rehabilitation

Answer 11

If W has been impeached, then can rehabilitate via:
(1) explanation on redirect
(2) When W’s bad character for truthfulness was attacked then evidence of good character for truthfulness can be brought via opinion or reputation testimony
(3) Prior consistent statement
* When W attacked with charge of lying or exaggerating because of some motive subsequent to statement, a previous consistent statement by the W before the onset of the alleged motive is admissible to rebut the evidence
* When W impeached on other non-character ground, prior consistent statement can be introduced to show it has a tendency to rehabilitate W’s credibility