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July Exam - Evidence > Impeachment > Flashcards

Impeachment Flashcards

1
Q

Impeachment - General Concepts

A
  • impeachment = discrediting w
  • when ev is admissible only to impeach, it’s not being offered as substantive ev (can’t be used to prove some fact at issue in the case
    -> only admissible to show w can’t be trusted
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2
Q

Accrediting or Bolstering

A
  • generally prohibited
  • party generally not allowed to bolster or accredit testimony of their w UNTIL w has been impeached
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3
Q

Exceptions to Rule Against Bolstering

A
  • in certain cases, party may offer ev that w made a timely complaint (ex: in a sexual assault case) or a prior statement of id (usually id’ing def as perpetrator) even if tends to bolster in-court testimony
  • prior id may also serve as substantive ev that the id was correct
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4
Q

Who May Impeach?

A
  • under Fed Rules, w may be impeached by ANY party, including the party who called them
    -> keep in mind used to not be able to impeach own w’s, so exam often includes this as wrong answer
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5
Q

Impeachment Methods - Overview

A

W may be impeached by either:
1) cross-examination OR
2) extrinsic ev

  • certain grounds allow cross-exam only, others require you to first lay foundation on cross
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6
Q

Impeachment by Cross-Examination - General Concept

A
  • eliciting facts from w that discredit their own testimony
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7
Q

Impeachment by Extrinsic Ev - General Concept

A
  • calling other witnesses or introducing docs that prove the impeaching facts
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8
Q

Impeachment Methods Involving Facts Specific to Current Case

A
  • prior inconsistent statements
  • bias or interest
  • sensory deficiencies
  • contradictory facts
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9
Q

Impeachment Methods Involving General Bad Character for Truthfulness

A
  • opinion or reputation ev of untruthfulness
  • prior convictions
  • bad acts
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10
Q

Prior Inconsistent Statements - Overview

A
  • party may show, by cross-examination or extrinsic ev, that the w has, on another occasion, made statements inconsistent w/ their present testimony
  • to prove the statement by extrinsic ev, proper foundation must be laid + the statement must be relevant to some issue in the case
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11
Q

Prior Inconsistent Statements - Wrinkles Re Inconsistency

A
  • prior statement that omits fact asserted during current testimony may constitute inconsistency if would’ve been natural for w to include fact in statement if they believed it to be true
  • lack of memory on stand generally not inconsistent w/ prior statement re that fact
    -> BUT if w remembers on stand but didn’t remember in prior statement, earlier lack of memory is generally considered inconsistent
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12
Q

Prior Inconsistent Statements - When Admissible as Substantive Evidence

A
  • usually hearsay -> admissible only for impeachment purposes
  • BUT can admit as substantive ev if the w is currently testifying + the prior inconsistent statement was made under oath at a prior proceeding (b/c qualifies as nonhearsay in that case)
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13
Q

Extrinsic Ev + Prior Inconsistent Statement

A

Extrinsic ev can be introduced to prove a prior inconsistent statement only if, at some point:
- w is given an opp to explain or deny the statement AND
- adverse party is given opp to examine w about the statement

-> under Fed Rules, opp to explain or deny can be given before or after introduction of extrinsic ev

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14
Q

Exceptions to Req Re Opp to Explain/Deny Prior Inconsistent Statement

A
  • doesn’t apply if prior inconsistent statement is also an opposing party’s statement
  • don’t need foundation if impeaching a hearsay declarant w/ declarant’s inconsistent statement (since hearsay dec not always a testifying w)
  • court can dispense w/ foundation req where justice requires
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15
Q

Bias or Interest

A
  • ev that w is biased or has interest in outcome of case tends to show w has a motive to lie
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16
Q

Bias or Interest - Foundation for Extrinsic Ev

A
  • b/c impeachment w/ bias not specifically addressed by fed rules, much is left to discretion of court
  • majority rule = before w can be impeached by extrinsic ev of bias or interest, they must first be asked on cross about the facts that show bias/interest
  • court has discretion to permit the extrinsic ev even if w admits the bias
17
Q

Sensory Deficiencies

A
  • w may be impeached by showing that their faculties of perception + recollection were so impaired as to make it doubtful that they could’ve perceived those facts
  • w may also be impeached by showing they had no knowledge of the facts to which they testified
18
Q

Sensory Deficiencies - Method of Impeachment

A
  • can do either on cross or w/ extrinsic ev
  • no foundation req for proving sensory deficiency w/ extrinsic ev (don’t need to confront w w/ the impeaching fact)
19
Q

Contradictory Facts

A
  • not specifically addressed in fed rules
  • cross-examiner, while questioning w, can try to make w admit they lied or were mistaken about some fact they testified to during direct examination
  • if w admits the mistake or lie, they’ve been impeached by contradiction
  • BUT if w sticks to story, q arises re whether can impeach w/ extrinsic ev -> can use to prove contradictory fact UNLESS the contradictory fact = collateral (i.e. no significant relevance to the case or w’s credibility)
20
Q

Opinion or Reputation Evidence of Untruthfulness

A
  • w can be impeached w/ rep or opinion ev of own bad character for truthfulness -> to suggest not telling truth on stand
  • accomplished by calling character w to testify re target w’s bad rep or character w’s low op of target w
21
Q

Impeachment - Proof of Prior Conviction

A
  • w may be impeached by proof of a conviction for certain crimes
    -> arrest or indictment not sufficient
    -> BUT pending review or appeal doesn’t affect use of conviction for impeachment
22
Q

Prior Conviction of Crime - Options Re Type of Crime

A
  • any crime involving dishonesty or false statement
  • felony not involving dishonesty or false statement
23
Q

Rules for Impeachment By Crime Involving Dishonesty/False Statement

A
  • w can be impeached by ANY crime (felony or misdemeanor) involving act of dishonesty or false statement
  • court has no discretion to bar impeachment by these crimes
  • pretty narrowly restricted -> crimen falsi only (perjury, criminal fraud, embezzlement, false pretenses, etc)
24
Q

Impeachment by Felony

A
  • w may be impeached by felony not involving dishonesty, BUT ct has discretion to exclude the conviction

Balancing tests:
- if w= crim def, ct excludes conviction if pros hasn’t shown probative value outweighs prejudicial effect
- for all other w’s, court excludes conviction if determines probative value is substantially outweighed by prejudicial effect (standard Rule 403 test)

25
Q

Prior Crim Convictions - Remoteness

A
  • generally, if more than 10 yrs since date of conviction or date of release from confinement (whichever later) the conviction is inadmissible
    -BUT court may admit if:
    1) probative value substantially outweighs prejudicial effect (reverse 403) AND
    2) proponent gives adverse party reasonable written notice of their intent to use it
26
Q

Prior Crim Conviction - Methods of Establishing

A
  • usually shown by either direct or cross or by introducing record of judgment
  • no foundation necessary
  • if party introduces ev of own prior conviction, can’t later claim on appeal that the conviction was erroneously admitted
27
Q

Prior Crim Conviction - Effect of Pardon

A
  • conviction can’t be used to impeach w if was subject to pardon or equiv procedure AND either:
    -> pardon was based on rehabilitation + w hasn’t been convicted of subsequent felony OR
    -> pardon was based on innocence (irrespective of any subsequent convictions)
28
Q

Juvenile Convictions

A
  • generally not admissible for impeachment purposes
  • in crim case, judge has discretion to admit ev of juvenile offense committed by w other than the accused if ev would be admissible to attack credibility of an adult + if ev is necessary to determination of accused’s guilt or innocence
29
Q

Impeachment - Constitutionally Defective Convictions

A
  • conviction obtained in violation of def’s con rights = invalid for all purposes, including impeachment
30
Q

Bad Acts Involving Untruthfulness

A
  • subject to discretionary control of trial judge, w may be interrogated upon cross wrt act of misconduct if act is probative of truthfulness (i.e. an act of deceit or lying)
  • cross-examiner must have a good-faith basis to believe w committed the misconduct
31
Q

Bad Acts Involving Untruthfulness - Extrinsic Ev

A
  • extrinsic ev of the bad acts is not permitted
    -> this method of impeachment can be accomplished only by cross-examination of the witness
  • cross-examiner can’t refer to any consequences w may have suffered as result of bad act
    -> CAN’T ask about arrests
32
Q

Impeachment on Collateral Matter

A
  • where a witness makes a statement not directly relevant to the issue in the case, rule against impeachment on collateral matter prohibits a party from proving the statement untrue either by extrinsic ev or by prior inconsistent statement
33
Q

Impeachment of Hearsay Declarant

A
  • credibility of a hearsay declarant may be attacked (and if attacked, supported) by ev that would be admissible if dec had testified as a witness
  • can be impeached by any of the methods discussed
  • need not be given opp to explain or deny prior inconsistent statement
  • party against whom out-of-court statement offered can call hearsay dec as a witness + cross-examine re the statement
34
Q

Rehabilitation

A

Witness who has been impeached may be rehabilitated by:
- w on redirect may explain or clarify facts brought out on cross
- good character for truthfulness (only rep + op)
-> only available if attacked bad character for truthfulness
- prior consistent statement

July Exam - Evidence (12 decks)

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