Impeachment Flashcards
When evidence is admissible to impeach a witness, what is evidence doing?
It’s not being offered to show a fact at issue in the case, but rather to show witness can’t be trusted.
What is the general rule towards a party’s ability to a credit or bolster their witnesses?
Generally it’s not permitted, until the witness has been impeached.
In certain cases, what is the exception to the general presumption against bolstering?
Evidence that
1) W made a timely complaint
OR
2) a prior statement of identification
Who can impeach which witnesses?
Any party can impeach any witnesses, even the party that called them.
MBE TIP: IF a party is impeaching their own witness, what are wrong answer choices that reflect the traditional rule against impeaching your own witness unless witness:
1) Is an adverse party, or identified with an adverse party
2) W is HOSTILE and affirmatively uncooperative
3) IS one whom party is REQUIRED BY LAW to call
4) Gives SURPRISE testimony
What is the traditional rule against impeaching your own witnesses?
A party can’t impeach their own witnesses unless:
1) Is an adverse party, or identified with an adverse party
2) W is HOSTILE and affirmatively uncooperative
3) IS one whom party is REQUIRED BY LAW to call
4) Gives SURPRISE testimony
How can a witness be impeached and by whom?
1) on Cross-examination
2) extrinsic evidence
How can a party impeach a witness for a prior inconsistent statements?
1) By cross examination
2) extrinsic evidence
How must a party impeach a witness for a prior inconsistent statements via extrinsiv evidence?
1) By laying a proper foundation
2) and showing prior inconsistent statement is relevant to an issue in the case
If a plaintiff’s prior statement omits a fact asserted during a current testimony, is it a PIS?
It may be if:
it would have been natural for Witness to include the fact in the Prior statement if they believed it to be true
Does a witness’s present lack of memory about a statement mean it’s inconsistent with a prior statement relating the fact forgotten?
Not on its own, unless it appears witness is feigning forgetfulness.
Is a witness a witness remembers a fact on stand but forgot it in the Prior statement, is their an inconsisten statement?
Generally, yes.
Generally, what are prior inconsistent statements admissible for?
Impeachment purposes, because they are hearsay.
Are prior inconsistent statements generally/always hearsay?
Yes, generally. BUT if the IS was made under oath at a prior proceeding, it is admissible non hearsay and can be admitted as substantive evidence.
IF a prior inconsistent statements was made under oath at a prior proceeding, is it hear say? What can it be admitted as?
No, and can be admitted as substantive evidence.
How is a proper foundation laid to allow extrinsic evidence to show prior inconsistent statements/
1) Witness is given opportunity to explain/deny PS
2) Adverse party is given opportunity to examine witness about statement
When must a witness be given the opportunity to explain or deny a PS for extrinsic evidence foundation purposes?
It can happen before or after the extrinsic evidence is introduced.
When does the foundation requirement for extrinsic evidence not apply?
If the PIS is an opposing party’s statement.
When can the court dismiss extrinsic evidence’s foundation requirement?
When justice requires (witness has left stand, is now unavailable and their inconsistent statements is discovered
What does bias or interest evidence show?
That the witness has a motive to lie.
What are examples of possibly biased/interested witnesses?
1) W is friend/relative/employee of party
2) Expert W is being paid by party
3) witness has grudge against party
In bias/motive through extrinsic evidence, what is the court’s scope of control?
Court has wide discretion to allow or not allow.
What is the majority rule about impeachment for bias/motive through extrinsic evidence?
Witness must first be asked about the facts that show bias/interest.
MBE EXAM TIP: If a proper foundation has been laid for bias/motive extrinsic evidence, what evidence can be admitted?
Other evidence that is typically inadmissible like arrests/liability insurance.
Is their a foundation requirement for sensory deficiency?
No.
What does it mean to say there is no foundation requirement for sensory deficiency?
The witness does not need to be confronted with the fact.
What does it mean to impeach someone by contradictory facts?
A cross examiner, can try and get witness tripped up and admit they were mistake on a fact they testified to during direct examination.
If someone is impeached by contradictory facts and sticks to their story, and court allows extrinsic evidence to be used to show the contradiction, when will it not be permitted?
If the contradiction is collateral.
What does it mean to say a contradiction is collateral?
It has no significant relevance to the case or witness’s credibility.
How is a witness impeached with reputation or opinion evidence of their own bad character for truthfulness?
1) Calling a character witness to testify
2) about target witness’s bad reputaiton
OR
3) Character witness’s low opinion of target witness
Can a witness be impeached by proof of their arrest?
No.
Can a witness be impeached by proof of their indictment for a crime?
No,
Can a witness be impeached by a conviction?
Yes.
Can a witness be impeached by a conviction that is currently pending review/appeal?
Yes.
What type of crime can a witness be impeached on that gives the court no discretion to bar it?
Any crime, felony or misdemeanor that required:
1) an act of dishonesty
2) a false statement
What are crimes that courts interpret false/dishonest?
1) Perjury
2) False statement
3) criminal fraud
4) embezzlement
5) false pretenses
Is simple theft a crime of dishonesty?
No.
In deciding if a crime is one of falsity/dishonesty, what should you look for?
Uttering/writing false words.
Can a witness be impeached for a felony not involving dishonesty/false statement?
Yes. BUT
What type of felony conviction does a court have discretion to exclude for IMPEACHMENT purposes? How does the court analyze this?
Felonies not involving dishonesty/false statement
2) court uses a balancing test
If a party is seeking to impeach a criminal defendant for a felony conviction that is not dishonesty or false statement, when will the court in its discretion exclude it? What is the nature of this test?
If prosection
2) has not shown that its Probative value
3) outweighs its prejudicial effect
It is a more difficult test than the one for other witnesses – it favors not admitting the evidence.
If a party is seeking to impeach a witness other than a criminal defendant, for a felony conviction that is not dishonesty or false statement, when will the court in its discretion exclude it? What is the nature of this test?
Court will exclude conviction if:
Probative value is
SUBSTANTIALLY OUTWEIGHED
by its prejudicial effect.
This is the standard 403 balancing test and favors admitting the evidence.
As a general rule, how do courts treat remote convictions?
GENERALLY, If more than 10 years have passed since:
1) Date of conviction
OR
2) date of confinement release
(whichever is later)
The conviction is GENERALLY inadmissible. BUT
In remote convictions, do courts do more than ten years since the date of conviction or the date of release from confinement?
Whichever is later.
In extraordinary circumstances, will a court admit an older conviction than 10 years?
They MAY if:
1) Its Prob value
2) substantially outweights its prejudicial effect
AND
1) Propenent gives adverse party reasonable written notice of their intent to use the conviction.
What must a proponent seeking to admit into evidence for IMPEACHMENT of a witness’s conviction that was more than 10 years ago do?
They must provide notice to the adverse party that is reasonable, written, and tells of their intent.
What type of test does the court administer for convictions of more than 10 years prior?
Reverse 403 that strongly favors exclusion.
Does extrinsic evidence for a prior conviction need a foundation laid?
No.
Can a conviction that was subject to a pardon be used to impeach a witness?
Not if it was pardoned and EITHER
1) it was a REHABILITATION based pardon, and witness has not been convicted of a SUBSEQUENT felony
2) Pardon was based on innocence (which removes any consideration of subsequent felonies)
When can juvenile convictions be used to impeach?
In a criminal case, a judge has discretion to admit when it was committed by witness OTHER than accused and of evidence would be admissible to attack credibility of an adult and if evidence neccessary to guilt determination
When can a bad act be asked about?
On cross examination.
What can’t be asked about in regards to a bad act?
Consequences of the act.
What is the difference between a bad act and an arrest and what are examples?
A bad act can be asked about.
An arrest itself is not a bad act and can’t be asked about.
You can ask a witness on cross “did you embezzle money from your employer?
You cannot ask “were you arrested for embezzlement?”
What does rule against collateral matter prohibit?
It prohibits a party from proving a statement not directly relevant to the issue in the case as true or untrue either through
1) extrinsic evidence
2) collateral matter
When a witness’s general bad character for truthfulness is attacked, what can an opposing party do?
1) call other witnesses to give reputaiton or opinion testimony
2) about witness’s good character for truthfulness
When a character witness is offering an impeached witness’s good character for truthfulness, what can they testify about?
ONLY reputation and opinion
1) specific acts of truth ful conduct are NOT ALLOWED
How can a witness’s bad character for truthfulness be attacked?
1) By reputation/opinion testimony
2) prior convictions
3) prior acts of misconduct
What is the rule of the road around rehabilitation for good char of truthfulness?
Rehabilitation must meet the attack. Good character for truthfulness can only be introduced to rebut bad character for truthfulness.
When can a prior consistent statement be used to rehab a witness?
1) Witness’s testimony is attacked for lying/exaggerating due to motive…. then a PCS made by W before onset of alleged motive is admissible
2) If witness testimony is impeached for a different ground like inconsistency/faulty memory, prior consistent statement can be introduced.
Is a prior consistent statement admissible to rehab witness hearsay?
No.
What can a prior consistent statement that is admissible to rehab witness be offered as?
Substantive evidence.
