Impeachment Flashcards
General Definition
Discrediting a witness.
Bolstering/Rehabilitating a Witnesses credibility
Attempts to strengthen credibility before credibility has been attacked are generally prohibited. Even a witness bolstering their own is not okay.
After impeachment, it’s okay and such an attempt is called rehabilitation
Exceptions to bolstering
Certain cases these can be admitted:
1) timely complaints (ex. sex assualt)
2) Prior statements of identiication of D (usally identifying D as perpetrator)
Who can impeach?
Any party, including the party who called them.
How a witness may be impeached
1) Cross examination
2) Extrinsic evidence (other witnesses or documents)
3) Direct examination (for party calling own witness)
NOTE: Different grounds of impeachment call for different methods/processes
Impeachment methods
FACTS SPECIFIC TO CASE
1) Prior inconsistent statements
2) bias
3) sensory deficiencies
4) contradiciton
GENERAL BAD CHARACTER FOR UNTRUTFULLNESS
1) Opinion or reputation evidence of untruthfullness
2) Prior convictions
3) bad acts
Prior Inconsistent statements
By CX or EX.
A showing that the witness made statements inconsistent with present testimony.
To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
Prior inconsistent statements and omissions and lack of ememory
Prior statement that omits a fact asserted during testimony MAY constitute inconsistency IF it would have been natrual for the witness to have included.
BUT, a witnesses PRESENT lack of memory of a fact is generally not inconsistent.
Admissibility of PIS
Generally admissible for impeachment purposes only
BUT admissible as substantive evidence when made under oath at prior proceeding.
PIS: Foundation for extrinsic evidence and exceptions
EX may be introduced to prove a prior inconsistent statement only if, at some point: (BEFORE OR AFTER)
1) GIve witness oppurtunity to explain or deny
2) Give adverse party oppuruntity to examine witness about it
EXCEPTIONS. No foundation required where:
1) prior inconsistent statement is opposing party’s statement
2) Hearsay declarent is being impeached
3) Where justice requires
Bias or Interest + foundation for ex
Evidence that witness is biased or witness.
Foundation: EX is allowed, but witness first must be asked on CX.
Sensory Deficiencies
Showing that a witnesses’ faculties of perception and recollection were so impaired as to make their recollection doubtful. Or no knolwedge.
Admissible on CX or EX. No foundation req.
Contradictory Facts
Cross examiner, while questioning, can try to make the witness admit they lied or were mistaken about some fact they testified to during direct exam.
If witness admits, the have been impeached.
If witness sticks to story, EX CAN be used UNLESS the contraictory fact is collateral (no significant relevance to the case or witnesses cred)
Opinion or Reputation Evidence of Untruthfullness
Accomplsihed by calling a character witness to testify about the target.
General, but no specific incidents of conduct.
Conviction of Crime
May be impeached by proof of CONVICTION. Pending reviews or appeals are irrelevanrt.
Any crime involving dishonesty or false statement can be used. Some uttering or writing of false words.
– Court has no discretion to bar.
Felonies NOT involving dishonesty or false statement? Generally allowed, but court discretion. Uses balancing tests.
Generally, Inadmissible if more than 10 years has elapsed since date of conviction or release from confinment (whichever is later) (remote convictions)
No foundation required for EX
Felony not Involving dishonesty or false statement balancing test
Balancing test used depends on whether witness is the D in a criminal case or somenoe else.
–criminal D: court excludes conviction unless probabtive value outweighs prejudicial effect (burden on P)
–any other witness: excludes conviction if probabitve value SUBSTANTIALLY outweighed by prejudicial effect (403)
Remote Convictions Exception
Extraoridary Circumstances. Court may admit if:
1) probative value substantially outweighs its prejudicial effect; and
2) the proponent gives the adverse party reasonable written notice of their intent to use it
Conviction of Crime and Pardons
Conviciton can’t be used to impeach a witness if hte conviction was subject to a pardon or equivalent procedure, AND EITHER:
1) pardon based on rehabilitation and no subsequent felony conviction OR
2) pardon based on innocence
Conviction of Crime (Juvenile COnvictions and consitutionally defective convictions)
Juv Generally not admissible
Defective not adissible
Bad Acts involving Untruthfullness
Subject to court discretion, interrogation of witness on CX with respect to a “bad act” permitted if its probabtive of truthfulness. No conviction required.
No EX.
Can’t refer to any consequences of bad act the witness may have suffered.
Does not include inquiring about arrests. Arrests are not a bad act.
Impeachment on Collateral Matter
Cannot prove collateral (unimportant) matter by extrinsic evidence or prior inconsistent statement
Impeachment of Hearsay Declarant
HD=person who’s out of court statement has been admitted into evidence under exception to the hearsay rule OR as a vicarious statement of an opposing party.
May be impeached to same extent as in-court witness.
Need not be given oppurtunity to explain or deny prior inconsistent statements.
Rehabilitation
A witness who has been impeached may be rehabilitated by the following methods:
1) Explanation on redirect (explain/clarify cx facts)
2) Good character for truthfullness (general, not specific) (only when attatcked on this basis)
3) Prior consistent Statement (two situations where applicable)
–also as substantive evidence
Prior inconsistent statement rehabilitation Scenarios
1) When witness attacked with charge of lying or exaggerating b/c of some motive, and statement predates motive
2) When witness impeached on other non-character grounds (faulty memory)
