Impeachment

Question 1

What are the three ways to impeach?

Answer 1

1. bias - showing that the witness has some reason to lie or shade the facts
   (Can use extrinsic evidence in cross examination to impeach)
2. sensory competence - showing that the witness is mistaken in their observation somehow
3. show that the witness is dishonest; bad character for truthfulness

Question 2

How can a party show character for truthfulness/untruthfulness

Answer 2

1. can introduce character witness who will testify that the target witness is dishonest
   - can be attacked through opinion or reputation, NOT prior specific acts
   - can introduce extrinsic evidence
2. can cross-examine target witness WITH prior specific acts
   - only permitted to ask; must take witness’ answer
   - must have reasonable basis for asking Q
   - CANNOT use extrinsic evidence (except if the SIC relates to a criminal conviction for a felony or crime of dishonesty)
3. can cross examine with crimes involving dishonesty or false statement
   - CAN use extrinsic evidence
4. can cross examine with felony convictions (punishable by death or at least 1y in prison)
   - with criminal defendants, the probative value must substantially outweigh the prejudicial effect (reverse 403)
5. can cross examine with old conviction (>10y) IF probative value substantially outweighs prejudicial effect
6. CANNOT use pardon/certification of rehabilitation

A witness may be impeached by evidence that directly contradicts the witness’s testimony on a material issue. Both intrinsic and extrinsic evidence may be used for this purpose.

Question 3

When can prior inconsistent statements be used for impeachment?

Answer 3

Used ONLY for impeachment purposes (not substantive evidence)

Any type of prior statement (*does not have to be under oath)

Can be proven by extrinsic evidence but only if witness is given the opportunity to explain/deny the evidence.

Question 4

Explain impeachment of a hearsay declarant

Answer 4

When a statement that would otherwise be hearsay comes into court, the declarant is acting like a witness and can be impeached.

Can be made by any evidence that would be admissible if the declarant had testified as a witness.

Question 5

How can rehabilitation of a witness be accomplished?

Answer 5

1. give witness a chance to clarify & explain
2. prior consistent statement - if witness has been accused of changing their story, etc, can be rehabilitated with a statement witness made BEFORE the alleged motive arose; or
3. if witness has been attacked as having a bad character for truthfulness, evidence can be introduced bolstering character of truthfulness (opinion or reputation only).

Question 6

Is a juvenile conviction ever admissible in a civil case for impeachment purposes?

Answer 6

Evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.

Question 7

When is intrinsic and extrinsic evidence allowed for impeachment purposes?

Answer 7

Intrinsic evidence is always admissible for impeachment purposes. But extrinsic evidence (e.g., the police report) is admissible only if the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the inconsistent statement (or if justice so requires).