Impeachment Flashcards
Impeachment - General Concepts
- 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
Accrediting or Bolstering
- generally prohibited
- party generally not allowed to bolster or accredit testimony of their w UNTIL w has been impeached
Exceptions to Rule Against Bolstering
- 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
Who May Impeach?
- 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
Impeachment Methods - Overview
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
Impeachment by Cross-Examination - General Concept
- eliciting facts from w that discredit their own testimony
Impeachment by Extrinsic Ev - General Concept
- calling other witnesses or introducing docs that prove the impeaching facts
Impeachment Methods Involving Facts Specific to Current Case
- prior inconsistent statements
- bias or interest
- sensory deficiencies
- contradictory facts
Impeachment Methods Involving General Bad Character for Truthfulness
- opinion or reputation ev of untruthfulness
- prior convictions
- bad acts
Prior Inconsistent Statements - Overview
- 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
Prior Inconsistent Statements - Wrinkles Re Inconsistency
- 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
Prior Inconsistent Statements - When Admissible as Substantive Evidence
- 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)
Extrinsic Ev + Prior Inconsistent Statement
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
Exceptions to Req Re Opp to Explain/Deny Prior Inconsistent Statement
- 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
Bias or Interest
- ev that w is biased or has interest in outcome of case tends to show w has a motive to lie
Bias or Interest - Foundation for Extrinsic Ev
- 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
Sensory Deficiencies
- 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
Sensory Deficiencies - Method of Impeachment
- 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)
Contradictory Facts
- 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)
Opinion or Reputation Evidence of Untruthfulness
- 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
Impeachment - Proof of Prior Conviction
- 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
Prior Conviction of Crime - Options Re Type of Crime
- any crime involving dishonesty or false statement
- felony not involving dishonesty or false statement
Rules for Impeachment By Crime Involving Dishonesty/False Statement
- 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)
Impeachment by Felony
- 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)
Prior Crim Convictions - Remoteness
- 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
Prior Crim Conviction - Methods of Establishing
- 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
Prior Crim Conviction - Effect of Pardon
- 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)
Juvenile Convictions
- 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
Impeachment - Constitutionally Defective Convictions
- conviction obtained in violation of def’s con rights = invalid for all purposes, including impeachment
Bad Acts Involving Untruthfulness
- 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
Bad Acts Involving Untruthfulness - Extrinsic Ev
- 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
Impeachment on Collateral Matter
- 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
Impeachment of Hearsay Declarant
- 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
Rehabilitation
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
