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Evidence > Impeachment > Flashcards

Impeachment Flashcards

1
Q

what is impeachment?

A

when evidence is admitted for the purpose of showing that a witness can’t be trusted (to discredit them)

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2
Q

what is bolstering?

A

accrediting a witness’s testimony before it has been impeached
**NOTE = GENERALLY PROHIBITED

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3
Q

what are the two exceptions to the prohibition against bolstering?

A

party may offer “bolstering” evidence of…
1) a witness’s timely complaint (ie – sexual assault cases), or
2) a prior statement of identification (ie– identifying defendant as perpetrator of a charged crime)

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4
Q

true or false: a prior identification may serve as substantive evidence that the identification was correct.

A

TRUE

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5
Q

who may a witness be impeached by?

A

ANY PARTY (even the party who called them)

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6
Q

generally, via what two processes may a witness be impeached?

A

either by…
1) cross exam (or direct if its a party’s own witness), or
2) extrinsic evidence (calling other witnesses/producing docs to support impeaching facts)

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7
Q

which methods of impeachment involve impeaching a witness with facts that are SPECIFIC to the current case? (4)

A

impeachment by…
1) prior inconsistent statement
2) showing bias
3) showing sensory deficiencies
4) contradiction

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8
Q

what methods of impeachment involve impeaching a witness with their GENERAL character for UNTRUTHFULNESS? (3)

A

impeachment by…
1) opinion or reputation evidence for untruthfulness
2) prior convictions
3) prior bad acts

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9
Q

what is impeachment by prior inconsistent statement?

A

a party, by cross exam or extrinsic evidence, shows that the witness has, on another occasion, made statements inconsistent with their present testimony

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10
Q

what is required to prove a prior inconsistent statement by extrinsic evidence?

A

1) a proper foundation must be laid, and
2) the statement must be relevant to some issue in the case

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11
Q

under what circumstances may a prior statement that OMITS a fact asserted during the testimony be considered an INCONSISTENT statement?

A

when if would have been NATURAL for the witness to INCLUDE the fact in the statement if they believed it to be true

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12
Q

true or false: on its own, a witness’s present lack of memory of a fact is generally enough to be treated as an inconsistency with a prior statement relating that fact.

A

FALSE (generally NOT treated as an inconsistency absent any more facts)

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13
Q

when may a court find there’s been an inconsistency even where the witness has a present lack of memory of a fact?

A

when it appears that the witness’s memory loss is being faked

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14
Q

if a witness remembers a fact on the stand but DIDN’T remember the fact in an earlier statement, what will the court treat the prior lack of memory as?

A

a prior inconsistent statement

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15
Q

what is the one exception where a prior inconsistent statement is admissible for its TRUTH? (not simply impeachment)

A

when that prior inconsistent statement was made UNDER OATH

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16
Q

what is required for laying a proper foundation for extrinsic evidence to prove a prior inconsistent statement? (2 rqmts)

A

if at some point…
1) the witness is given an opportunity to explain or deny the statement (either before or after introduction of evidence), AND
2) the adverse party is given an opportunity to examine the witness about the statement (to explain, etc)

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17
Q

when does the foundation requirement for extrinsic evidence of prior inconsistent statements NOT apply? (3 situations)

A

when the prior inconsistent statement is…
1) made by an OPPOSING party,
2) made by a hearsay declarant and is being used to impeach that hearsay declarant, and
3) when justice so requires (ie– witness has left stand and is unavailable)

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18
Q

what is impeachment by showing bias/interest?

A

admitting evidence that a witness is biased or has an interest in the outcome of case to show they have a motive to lie

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19
Q

what is required to happen before a witness can be impeached by extrinsic evidence of bias?

A

they must first be asked about the facts that show bias or interest on cross examination (lays foundation)

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20
Q

true or false: a court still has discretion to permit extrinsic evidence even if the witness admits the bias.

A

TRUE

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21
Q

what is impeachment by showing sensory deficiencies?

A

by showing, either on cross exam or by extrinsic evidence, that a witness’s faculties of perception and recollection were so impaired as to make doubtful that they could have perceived those facts

22
Q

true or false: using extrinsic evidence to prove sensory deficiencies requires that a foundation be laid.

A

FALSE (no requirement that witness be confronted with the impeaching fact)

23
Q

what is impeachment by contradiction?

A

when the cross examiner, while questioning the witness, attempts to make the witness admit they lied or were mistaken about some fact that they testified to on direct exam, and they do so admit

24
Q

under what circumstances may extrinsic evidence be used to impeach a witness by contradiction? (2 rqmts)

A

1) the witness sticks to their story (doesn’t admit lie/mistake), and
2) the contradictory fact is NOT collateral (relevant to the case or witness credibility)

25
Q

what is impeachment by opinion/reputation evidence of untruthfulness?

A

when a character witness is called to give reputation or opinion evidence as to the target witness’s bad character for untruthfulness to suggest that they were not telling the truth while on the stand

26
Q

what is impeachment by prior conviction?

A

where a witness’ character for truthfulness is impeached by proof of convictions for certain crimes

27
Q

true or false: arrests and indictments may be used for impeachment by prior conviction

A

FALSE (only convictions may be used)

28
Q

true or false: a conviction that’s pending appeal or review does NOT affect its use for impeachment.

A

TRUE

29
Q

generally, what two categories of crimes may be admitted for impeachment by prior conviction purposes?

A

1) any misdo involving dishonesty or false statement
2) any felony (whether involving dishonesty/false statement or not)

30
Q

how do courts interpret “crimes involving dishonesty or false statement”?

A

narrowly (simple theft, etc doesn’t count but things like embezzlement, false pretenses, fraud, etc DO count)

31
Q

true or false: the court has NO discretion to bar impeachment by crimes of dishonesty or false statement.

A

TRUE (automatically admissible)

32
Q

true or false: the court has NO discretion to bar impeachment by felony convictions not involving dishonesty or false statements.

A

FALSE (court has discretion – thru a balancing test)

33
Q

what balancing test does the court use in evaluating admissibility of felony convictions when the witness being impeached is a CRIMINAL DEFENDANT?

A

court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect
**NOTE = similar to reverse 403 (no substantial rqmt), more difficult (favors exclusion)

34
Q

what balancing test does the court use in evaluating admissibility of felony convictions when the witness being impeached is NOT a criminal defendant? (anyone else)

A

the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect (standard Rule 403 analysis; favors admission)

35
Q

true or false: if more than 10 years have passed since the date of conviction or release (whichever is later) the conviction is INADMISSIBLE

A

TRUE (remote convictions generally not admissible)

36
Q

when may a court admit proof of an otherwise remote conviction? (2 rqmts)

A

1) its probative value substantially outweighs its prejudicial effect (reverse 403 analysis), and
2) the proponent gives the adverse party reasonable written notice of their intent to use it

37
Q

true or false: foundation is required to admit extrinsic evidence to prove a prior conviction for impeachment purposes.

A

FALSE (no foundation is required)

38
Q

what kinds of pardoned convictions will NOT be admissible for impeachment purposes? (2)

A

if the pardoned conviction was…
1) based on rehabilitation AND the witness has NOT been convicted of a later felony, or
2) based on innocence (REGARDLESS of whether the witness later committed a felony)

39
Q

true or false: juvenile convictions are generally admissible for impeachment purposes.

A

FALSE

40
Q

true or false: constitutionally defective convictions can nonetheless be used for impeachment purposes.

A

FALSE

41
Q

what is impeachment by prior bad acts involving untruthfulness? (2 rqmts)

A

when a witness is interrogated on cross exam with respect to an act of misconduct…
1) that is probative of truthfulness (ie–an act of deceit or lying), and
2) for which the cross examiner has a good faith basis to believe that the witness committed

42
Q

true or false: extrinsic evidence may be used to impeach a witness by prior bad acts.

A

FALSE (impeachment by prior bad acts can ONLY be accomplished thru cross exam)

43
Q

true or false: a cross examiner impeaching a witness by prior bad acts CANNOT refer to any consequences the witness may have suffered as a result of that bad act.

A

TRUE (treated as extrinsic evidence)
**NOTE = this usually refers to arrests, terminations, etc

44
Q

what is the rule against impeachment on a collateral matter?

A

when a witness makes a statement not directly relevant to the issue in the case, a party may NOT prove the statement untrue by either extrinsic evidence OR by prior inconsistent statements

45
Q

via what kinds of evidence may a party impeach the credibility of a hearsay declarant?

A

may attack credibility by evidence that would be admissible if the declarant had testified as a witness

46
Q

who is a hearsay declarant? (for impeachment purposes)

A

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

47
Q

what methods can a party use to rehabilitate a witness? (3)

A

1) explanation on redirect
2) good character for truthfulness after attack
3) prior consistent statements

48
Q

what kind of evidence may be admitted to rehabilitate a witness via good character for truthfulness?

A

only reputation or opinion evidence
**NOTE = character witness CANNOT testify about SPECIFIC acts of truthful conduct by the impeached witness

49
Q

when the target witness has been attacked by a charge that they are lying or exaggerating due to motive, how can a party rebut this charge with a prior consistent statement?

A

by introducing evidence of a prior consistent statement that was made BEFORE the onset of the alleged motive

50
Q

when a target witness has been impeached on any ground OTHER THAN their character for truthfulness, how can a party rehabilitate with a prior consistent statement?

A

by introducing evidence of a prior consistent statement that has a tendency to rehabilitate the witness’s credibility as to the impeached ground

51
Q

true or false: a prior consistent statement that is admissible to rehabilitate a witness’s credibility is ALSO admissible for the truth of its contents

A

TRUE (can be used as substantive evidence)

Evidence (9 decks)

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