Impeachment

Question 1

Impeachment general concepts

Answer 1

Refers to discrediting a witness

When evidence is admissible only to impeach, it is not being offered as substantive evidence

Question 2

Accrediting / bolstering

Answer 2

Generally, a party is not permitted to bolster or accredit the testimony of their witness until the witness has been impeached

So cannot introduce a prior statement that is consistent with their testimony unless rehabilitation

Question 3

Exceptions to rule against bolstering

Answer 3

In certain cases, a party may offer evidence that the witness made a timely complaint (like in a sexual assault case) or a prior statement of identification even if this tends to bolster their in-court testimony

Prior identification may also serve as substantive evidence

Question 4

Who can impeach

Answer 4

Under the federal rules, a witness may be impeached by any party, including the party who called them

When a question involves a party impeaching their own witness, be sure to avoid the following wrong answer choices reflecting the traditional rule, which prohibited impeaching own witness with some exceptions

Question 5

Impeachment methods

Answer 5

A witness may be impeached either by
- cross examination (eliciting facts from the witness that discredit their testimony), or
- extrinsic evidence (calling other witnesses or introducing documents that prove the impeaching facts)

Some grounds require foundation to be laid before extrinsic evidence can be introduced and some allow impeachment only by testimony and not extrinsic evidence

Question 6

Grounds for impeachment generally

Answer 6

Following grounds involve impeaching a witness with facts that are specific to the current case
- prior inconsistent statements
- bias
- sensory deficiencies
- contradiction

Involve impeaching a witness with their general bad character for truthfulness
- opinion or reputation evidence of untruthfulness
- prior convictions
- bad acts

Question 7

Prior inconsistent statements

Answer 7

A party may show, by cross examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony

To prove statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case

Most are clearly contradictory but some may omit a fact or add

Question 8

Prior inconsistent statement - prior statement omits a fact

Answer 8

A prior statement that omits a fact asserted during the current testimony may constitute an inconsistency if it would have been natural for the witness to include the fact in the statement if they believed it to be true

Question 9

Prior inconsistent statement - remembers on stand but not in original statement

Answer 9

If the witness remembers the fact on the stand but did not remember the fact in the prior statement, the earlier lack of memory is generally considered inconsistent
- but on its own, a witness’s present lack of memory of a fact generally is not inconsistent

Question 10

Prior inconsistent statement - substantive evidence

Answer 10

Usually prior inconsistent statements are hearsay and admissible only for impeachment purposes

But if a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible non hearsay and may be admitted as substantive evidence the facts stated

Reliable because of the oath and subject to cross

Question 11

Prior inconsistent statement - extrinsic evidence

Answer 11

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point
- the witness is given an opportunity to explain or deny the statement, and
- the adverse party is given an opportunity to examine the witness about the statement

This requirement does not apply in following circumstances
- prior inconsistent statement is an opposing party’s statement
- inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation
- court mat dispense with the foundation req where justice requires (witness left stand and unavailable when inconsistent statement is discovered)

Question 12

Bias or interest

Answer 12

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie

Impeachment with bias is not specifically addressed by federal rules so much is left to court’s discretion

Question 13

Bias or interest - foundation for extrinsic evidence

Answer 13

Majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about he facts that show bias or interest on cross-examination

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

Question 14

Sensory deficiencies

Answer 14

A witness may be impeached by showing, either on cross or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts

Can also be impeached by showing that they had no knowledge of the facts to which they testified

No foundation requirement for proving the sensory deficiency with extrinsic evidence - witness does not need to be confronted with the impeaching fact

Question 15

Contradictory facts

Answer 15

Not specifically addressed in the federal rules but impeachment by contradiction is a recognized method of impeachment

Cross-examiner, while questioning, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct

If witness admits the mistake or lie, impeached
- but if the witness sticks to their story, extrinsic evidence is permitted to prove the contradictory fact unless the contradictory fact is collateral (meaning no significant relevant to the case or to witness’s credibility)

Question 16

Opinion or reputation evidence of untruthfulness

Answer 16

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness to suggest that they were not telling the truth while on stand

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

Question 17

Conviction of crime generally

Answer 17

A witness may be impeached by proof of a conviction for certain crimes
- arrest or indictment is not sufficient
- pending review or appeal does not affect the use of a conviction for impeachment

Question 18

Conviction of crime - dishonesty or false statement

Answer 18

A witness may be impeached by any crime, felony, or misdemeanor, requiring an act of dishonesty or false statement
- interpret this narrowly - include only crimes in the nature of false criminal acts, requires some uttering or writing of false words

No discretion to bar impeachment by these crimes

Question 19

Conviction of crime - felony

Answer 19

A witness may also be impeached by a felony that does not involve dishonesty or false statement, but the court has discretion to exclude these convictions

Balancing test depends on whether the witness is the defendant in a criminal case or someone else

Question 20

Conviction of a felony and witness is criminal defendant

Answer 20

If the witness being impeached is a criminal defendant, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect

More difficult balancing test than for other witnesses

Question 21

Conviction of a felony and witness is not criminal defendant

Answer 21

In the case of all other witnesses, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect

Standard 403 balancing test, favors admitting it

Question 22

Convictions of felony - time limit

Answer 22

Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible

May admit an older conviction if
- its probative value substantially outweighs its prejudicial effect (reverse 403 that strongly favors exclusion), and
- the proponent gives the adverse party reasonable written notice of their intent to use it

Question 23

Convictions of crimes and extrinsic evidence

Answer 23

A prior conviction is usually shown by either direct or cross examination of the witness or by introducing a record of the judgment
- other methods may be permitted

No foundation is necessary

Question 24

Convictions of crimes and effect of pardon

Answer 24

A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure and either
- pardon was based on rehab and the witness has not been convicted of a subsequent felony, or
- the pardon was based on innocence

Question 25

Convictions of crimes - juvenile convictions

Answer 25

Juvenile offenses are generally not admissible for impeachment purposes

But in a criminal case, judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence

Question 26

Convictions of crimes - constitutionally defective conviction

Answer 26

A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment

Question 27

Bad acts involving untruthfulness

Answer 27

Subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of untruthfulness (like act of deceit or lying)

Cross-examiner must have a good-faith basis to believe the witness committed the misconduct

Question 28

Bad acts involving untruthfulness - extrinsic evidence

Answer 28

Extrinsic evidence of the bad acts is not permitted

This method of impeachment can be accomplished only by cross-examination of the witness

Cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act

Asking about bad acts does not include inquiring about arrests - arrest itself is not a bad act, so cannot ask about arrested for the bad act

Question 29

Impeachment on collateral matter

Answer 29

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement

Question 30

Impeachment of hearsay declarant

Answer 30

The credibility of a hearsay declarant may be attacked

And if attacked, may be supported by evidence that would be admissible if the declarant had testified as a witness
- hearsay declarant can be impeached by any of the impeachment methods
- need not be given the opportunity to explain or deny a prior inconsistent statement

The party against whom statement was offered may call the hearsay declarant as a witness

Question 31

Rehabilitation generally

Answer 31

A witness who has been impeached may be rehabilitated by following methods
- explanation on redirect
- good character for truthfulness
- prior consistent statement

Question 32

Rehabilitation - good character for truthfulness

Answer 32

When the witness’s general bad character for truthfulness was attacked, other witnesses may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness
- cannot testify about specific acts or truthful conduct by the impeached witness

Question 33

Rehabilitation and prior consistent statement generally

Answer 33

There are two situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement
- exaggerated or implied charge of motive
- inconsistency due to memory

Prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents

Question 34

Rehabilitation and prior consistent statement - lying or exaggerating

Answer 34

If the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence

Question 35

Rehabilitation and prior consistent statement - faulty memory

Answer 35

If the witness’s testimony is impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility