Impeachment

Question 1

Impeachment

Answer 1

Impeachment casts an adverse refelction on the veracity of W’s testimony
-Any party may impeach any W

Question 2

Methods of impeachment

Answer 2

1) Contradiction
2) Prior inconsistent statement (PIS)
3) Bias or interest
4) Sensory deficiencies
-E.g. W’s senes were incapable of producing the perceptions to which W testified
5) Reputation and/or opinion of untruthfulness
-Admissible to impeach W’s veracity by use of extrinsic evidence
6) Prior acts of misconduct
-Extrinsic evidence is prohibited
7) Prior criminal conviction

Question 3

Evidence supporting witness credibility

Answer 3

Inadmissible unless credibility has been attacked (i.e. W has been impeached)
-Exception: W’s prior consistent statement is admissible if the statement was made before W had a motive to fabricate

Question 4

Extrinsic evidence

Answer 4

Extrinsic evidence may be used to impeach W, except on collateral matters
* Any evidence other than W’s testimony at the current proceeding
* Includes evidence of out of court prior inconsistent statements
* Extrinsic evidence of contradictory facts is generally admissible to impeach W on material, non collateral matters

Question 5

Collateral matter

Answer 5

A fact not material to issues in the case
* Says nothing about W’s credibility only used to contradict W
-E.g. W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress - this is collateral (i.e. not material) to the issue of what W1 saw
* Test: to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?
-If not, it is likely collateral

Question 6

Contradiction

Answer 6

Any evidence may be used to show W has made contradictory statements on material issues

Question 7

Prior inconsistent statement

Answer 7

W’s prior inconsistent statements may be used to impeach W’s present testimony
* Establishing PIS: may be established through cross-exam or extrinsic evidence
-Extrinsic evidence is inadmissible if the PIS relates to a collateral matter
* Foundation requirement: W must have an opportunity to explain or deny the statement
-Not required for PIS by a hearsay declarant

Question 8

Prior inconsistent statements and hearsay

Answer 8

If PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)
* I.e. a hearsay PIS may only be considered for its bearing on W’s credibility
* If the PIS is not hearsay or it falls under a hearsay exemption/exception, it may be considered for any purpose

Question 9

Impeachment by establishing bias

Answer 9

May be established through cross exam or extrinsic evidence
-Foundation requirement: W must be questioned on cross exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny

Question 10

Impeachment by prior instances of misconduct

Answer 10

W may be questioned on cross exam about any prior misconduct probative of truthfulness (i.e. lying or deceit)
* Arrests does not equal misconduct: must be an act of lying
* No extrinsic evidence permitted: W may only be asked about prior misdconduct; questioning attorney must accept W’s answer

Question 11

Impeachment based on opinion or reputation for untruthfulness

Answer 11

W may be impeached by testimony describing his reputation for untruthfulness in the community

Question 12

Impeachment by prior conviction

Answer 12

• Felonies not involving dishonesty/false statements:
  -If W is the D: admissible if govt shows probative value outweights prejudicial effect
  -If W is non D: admissible but court can exclude under 403 balancing test
• Misdemeanors: inadmissible unless it involves dishonesty/false statements

Question 13

Impeachment by prior conviction involving act of dishonesty

Answer 13

• Always admissible: court has no discretion to exclude under 403 (rare exception to 403)
  -Includes felonies and misdemeanors
• Acts of dishonesty: prior conviction required proof or admission of an act of dishonesty or false statement (e.g. perjury, fraud)

Question 14

Impeachment by convictions more than 10 years old (felonies and misdemeanors)

Answer 14

• Not admissible unless: probative value substantially outweights unfair prejudice and adverse party is given notice
  -Note: inverse of 403 balancing
• Determining 10 year date: more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later