Impeachment

Question 1

What is impeachment

Answer 1

offering evidence to discredit a witness/show they cannot be trusted - not substantive evidence

Question 2

What is the rule surrounding accrediting or bolstering a witness?

Answer 2

Generally, one may not accredit or bolster [strengthen] their witness until the W has been impeached/attacked

Question 3

What are some ways one may accredit or bolster a witness?

Answer 3

by introducing a prior statement by the W that is consistent with their testimony before W has been impeached

Question 4

what are the exceptions to the rule against accrediting or bolstering a witness?

Answer 4

a party may offer evidence that the witness made a timely complaint (such as in a sexual assault case) even if this tends to bolster their in-court testimony

a party may offer evidence that the witness made a prior statement of identification (usually, identifying the D as the perpetrator of the charged crime)

the prior identification may be substantive evidence that the ID was correct

Question 5

Who may impeach and who may be impeached?

Answer 5

Any witness may be impeached by any party, including the party who called them

Question 6

Common law rule against impeaching your own witness [NOT FRE]

Answer 6

You could not impeach your own witness unless the witness

(1) was an adverse party or identified with an adverse party

(2) was hostile

(3) was one whom the party is required by law to call; OR

(4) gives surprise testimony that is affirmatively harmful to the party calling them

Question 7

Methods of impeachment [include umbrella descriptors]

Answer 7

Impeaching with facts specific to the current case
(1) prior inconsistent statements
(2) bias
(3) sensory deficiencies
(4) contradiction

General bad character for truthfulness
(5) opinion or reputation evidence of untruthfulness
(6) prior convictions
(7) bad acts

Question 8

Forms of impeachment

Answer 8

Cross examination (or direct/redirect if impeaching your own witness)
– eliciting facts from the W that discredits his own testimony

Extrinsic evidence
– calling other W or introducing documents that prove the impeaching facts

Question 9

When is a prior inconsistent statement admissible as substantive evidence?

Answer 9

when the witness’s prior statement was made under oath at a previous proceeding [hearsay exclusion]

when the statement is an opposing party’s statement [hearsay exclusion]

Question 10

What does it mean to state that a prior statement is “inconsistent”

Answer 10

statement clearly contradictory to present testimony is inconsistent

a prior statement that omits a fact asserted during the current testimony is inconsistent IF it would have been natural for the witness to include it in the statement if they believed it were true

PRESENT Lack of memory is not generally inconsistent with a prior statement relating that fact, unless feigned

PAST lack of memory – if witness remembers the fact on the stand but did not remember the fact in the prior testimony, the earlier lack of memory is generally considered inconsistent

Question 11

In what form may a party impeach by a prior inconsistent statement?

Answer 11

Examination or extrinsic evidence

if introducing through extrinsic evidence, must lay foundation and statement must be relevant to some issue in the case

Question 12

How do you lay a foundation to prove a prior inconsistent statement by extrinsic evidence?

Answer 12

(1) witness is given an opportunity [before OR after introduction of the extrinsic evidence] to explain or deny the statement, AND

(2) the adverse party is given an opportunity to examine the witness about the statement

Question 13

When are you not required to lay a foundation before introducing extrinsic evidence of a prior inconsistent statement:

Answer 13

when the prior inconsistent statement is an opposing party’s statement

an inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation

when the court decides that “justice requires” dispensing with foundation (example, W has left the stand and is unavailable when inconsistent statement was discovered)

Question 14

what does it mean to show a witness is biased?

Answer 14

a witness has an outcome in the case and therefore has a motive to lie

Question 15

What is the rule for laying a foundation for extrinsic evidence of bias?

Answer 15

bias is actually not addressed by FRE = up to court discretion

Majority rule:
before a W can be impeached by extrinsic evidence of bias, they must first be asked about the facts that show bias or interest

Court has discretion to permit extrinsic evidence even if the W admits the bias

Question 16

Once foundation requirement for bias is fulfilled, what can be introduced?

Answer 16

any evidence that shows bias – even evidence otherwise inadmissible, such as arrests or liability insurance)

Question 17

what does it mean to impeach by sensory deficiency

Answer 17

show that a W’s faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts

show W had no knowledge of the fact to shish they testified

Question 18

what is the foundation requirement for introducing extrinsic evidence of sensory deficiency?

Answer 18

no foundation requirement

Question 19

examples of sensory deficiency

Answer 19

bad eyesight

bad hearing

poor memory

consumption of alcohol or drugs at the time of the event or while on the witness stand

Question 20

Summarize foundation rules for introducing extrinsic evidence to impeach a W - SEE word doc

Answer 20

see word doc

Question 21

how do you impeach by contradiction?

Answer 21

make W admit they lied or were mistaken about some fact they testified to during direct

Question 22

to what extent may you prove impeachment by contradiction with extrinsic evidence?

Answer 22

You can use extrinsic evidence unless the contradictory fact is collateral (meaning it has no significant relevance to the case or the W’s credibility)

Question 23

how to accomplish impeachment by opinion or reputation evidence of untruthfulness?

Answer 23

calling a character witness to testify about their bad reputation or character witness’s low opinion of the target witness

Question 24

How to impeach by conviction of a crime? What crimes can and cannot be used to impeach?

Answer 24

(1) any crime involving dishonesty or false statement [involves the uttering or writing of false words]

perjury, false statement, criminal fraud, embezzlement, false pretense (not simple theft)
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(2) felony not involving dishonesty or false statement IF court allows them

[a] Court has discretion to keep these out, depending on whether the W is the D in a criminal case or someone else:

[i] if the W being impeached is a criminal D, the court will exclude the conviction if the prosecution has NOT shown that its Probative Value outweighs its prejudicial effect [favors excluding evidence]

[ii] if the W being impeached is not the criminal D, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect [favors admitting evidence]
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(3) remote criminal convictions NOT admissible unless it passes a test:

if more than 10 years have elapsed since the date of conviction or release, whichever is later, the conviction is inadmissible unless:

(a) its probative value substantially outweighs its prejudicial effect [favor exclusion]
AND
(b) the proponent gives the adverse party reasonable written notice of their intent to use it
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(4) Juvenile offenses generally not admissible for impeachment – but there is an exception

exception: the judge has the discretion to admit evidence of juvenile offense committed by a W, as long as it is not the accused ….
[a] if the E would be admissible to attack the credibility of an adult
AND
[b] if the evidence is necessary to a determination of the accused’s guilt or innocence
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[5] conviction obtained in violation of the D’s constitutional rights is invalid for all purposes, including impeachment

Question 25

to what extent must you lay a foundation to introduce extrinsic evidence of prior convictions?

Answer 25

no foundation necessary

Question 26

effect of a pardon on availability of impeachment by prior conviction

Answer 26

a conviction cannot be used to impeach if the conviction was subject to a pardon or equivalent procedure, and either

[a] the pardon was based on rehabilitation and the W has not been convicted of a subsequent felony;

OR

[b[ the pardon was based on innocence, irrespective of subsequent convictions

Question 27

How do you impeach a witness with bad acts involving untruthfulness?

Answer 27

only by cross examination, no extrinsic evidence [no evidence of consequences of the bad act - you are stuck with the answer]

ask about an act of misconduct if the act is probative of truthfulness, such as an act of deceit or lying

cross examiner must have a good faith basis to believe the W committed the misconduct

do not refer to arrests - only bad acts [did you embezzle money, not were you arrested for embezzlement]

Question 28

What is the rules against impeachment by a collateral matter?

Answer 28

parties are prohibited from proving statements by Ws not directly relevant to the issue in the case, either by extrinsic evidence or by a prior inconsistent statement

Question 29

who is a hearsay declarant?

Answer 29

A person whose out of court statement has been admitted into evidence (1) under an exception to the hearsay rule, or (2) as a vicarious statement of an opposing party

Question 30

What is the rule of the impeachment of a hearsay declarant the

Answer 30

A hearsay declarant [who may or may not be present at trial] may be impeached by any of the impeachment methods and need not be given the opportunity to explain or deny a prior inconsistent statement

Question 31

Explain the methods of rehabilitation

[a] when the method is allowed

[b] what the rehabilitation evidence looks like for that method

Answer 31

(1) Explanation on redirect
[a] always allowed
[b] clarifying statements by impeached W
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(2) Good character for truthfulness

[a] This is allowed when W’s general bad character for truthfulness was attacked using . . .
-reputation/opinion evidence
-prior convictions
-prior acts of misconduct

[b] rehabilitation evidence:
reputation or opinion evidence of impeached W’s good character for truthfulness
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(3) Prior consistent statement
[a] This is allowed in two situations

[i] when the testimony of the W has been attacked by an express or implied charge that the W is lying or exaggerating because of some motive [the prior consistent statement has to have been made by the W before the onset of the motive]

[ii] when the testimony of the W is attacked on some different ground besides general character for untruthfulness, such as inconsistency, sensory deficit, etc.

[b] rehabilitation evidence:
prior consistent statement made by the witness that rebuts the impeachment evidence

*note that prior consistent statements are admissible as substantive evidence

Question 32

what method of rehabilitation evidence is also admissible as substantive evidence?

Answer 32

prior consistent statement [because it is a hearsay exclusion]

Question 33

to what extent can you impeach an unavailable declarant

Answer 33

you can impeach an unavailable declarant by evidence that would be admissible if declarant had testified as a witness

there is no requirement that declarant must be present at trial to be impeached

if you impeach unavailable witness, that W’s credibility may also be rehabilitated