Impeachment

Question 1

Impeachment

Answer 1

process of trying to show the witness is not credible

Question 2

Credibility

Answer 2

1. whether witness is believable. 3 types (PMS):
   
   • P- perception -whether witness could see what they saw
   • Memory-Whether they remember it
   • S- Sincerity- whether Witness is credible

Question 3

Rehabilitation

Answer 3

process of trying to repair witness after impeachment

Question 4

Who may the parties impeach

Answer 4

Parties may impeach their own witness

Question 5

Impeaching own Witness

VA Distinction

Answer 5

• In VA, a party is generally not allowed to impeach her own witness.
  
  • Exception: if a witness turns out to be hostile, the party may impeach the witness with his prior inconsistent statements only.

Question 6

Methods of impeachment

Answer 6

• Prior inconsistent statements
• Bias, interest or motive to lie
• Sensory defects
• Reputation/opinion testimony
• Criminal convictions
• Prior Bad Acts
• Contradictions

Question 7

Prior inconsistent statements

Answer 7

• Any witness can be impeached by showing prior material statements (oral or written) that is inconsistent with witnesss trial testimony.
• Statement need not be under oath

Question 8

Prior inconsistent statements admissibility

Answer 8

1. Used for impeachment but not for substantive evidence (truth of matter asserted)
2. BUT, if given under oath during prior proceeding, can be used as substantive evidence

Question 9

Prior inconsistent statements foundation requirement

Answer 9

1. No need to show the impeached witness the prior inconsistent statement before putting on inconsistent. evidence.
   
   1. But, fairness requires witness to get some opportunity to explain or deny
      
      1. Exception: no foundation where witness is party opponent or if hearsay declarant

Question 10

Prior Inconsistent Statements

VA Rule

Answer 10

• In VA, extrinsic evidence of a prior inconsistent statement is admissible only after the impeaching party has confronted the witness during cross examination and the witness denies or does not remember making it.
• (as under the FRE, no foundation is reqd if the witness is an opposing party)

Question 11

Bias, interest, or motive to lie

Answer 11

1. Can you show bias with extrinsic evidence?
   
   1. Yes
2. Must witness first be confronted w/ alleged bias before on the stand?
   
   1. Court’s dicretion, up to the judge

Question 12

Sensory defects

Answer 12

1. Ability to perceive can be drunk, blind, deaf, etc…
2. Extrinsic. Evidence. Permitted
3. Can put on another witness to show defect
4. No foundation needed

Question 13

Reputation/opinion testimony re character’s rep for truthfulness

Answer 13

1. Calling in another witness to testify as to witness’s character
2. Extrinsic evidence allowed
3. No foundation required
4. No specific acts!

Question 14

Reputation/Opinion Testimony

VA Distinction

Answer 14

• A character witness cannot provide opinion testimony in VA.
• Thus, a witness may be impeached with reputation evidence of untruthfulness, but not opinion evidence.

Question 15

Criminal Convictions

Answer 15

1. suggests that convicts are more likely to lie under oath than someone with no convictions
2. Any crime involving lying, deeit or false statement may be used to impeach
   
   1. E.g. fraud and embezzlement, but not robbery or ordinary theft bc no deceit there.

Question 16

Admissibility of criminal convictions

Answer 16

1. Ct has no discretion to keep convictions out. They must be put in, unless too old
2. Convictions with no fraud or deceit must be felonies. Ct has dicretion to exclude convictions, thru prejudice balancing.
   
   1. Cannot be too remote. General rule is 10 years from conviction or release from prison, whichever is later

Question 17

Method of proof for criminal convictions

Answer 17

1. Extrinsic evidence permitted
2. No foundation needed but typically used in cross

Question 18

Criminal Convictions

VA Distinction

Type of Crime

Answer 18

Any felony, or any misdemeanor involving moral turpitude

Question 19

Criminal Convictions

VA Distinction

Facts surrounding conviction

Answer 19

• If witness is the accused in a criminal case, or a party in a civil case.
• The name or nature of the crime cannot be disclosed to the jury.
• Only the number of qualifying prior convictions may be disclosed.
• All other witnesses.It is permissible ot disclose the name and nature of the crime, but not the details of the crime.

Question 20

Criminal Convictions

VA Distinction-Limitations

Answer 20

• No time limit for prior convictions
• Cts discretion to exclude
• The ct may exclude any conviction under the prejudicial/probative valuing test.

Question 21

Prior bad acts, not a conviction, involving witness’s character for truthfulness

Answer 21

1. Confrontation thru cross ONLY. No extrinsic evidence permitted.
2. Cross examiner must have a good faith basis for confrontation
3. You can ask about the act itself, but not the consequences of the act
   
   1. e.g. you can ask about lying on law school app, but not whether you were suspended for it
   2. Prior bad acts, not a conviction, involving witness’s character for truthfulness

Question 22

Prior Bad Acts

VA Distinction

Answer 22

• Generally this method of impeachment is not allowed in Virginia
• Exceptions:
  
  • Unajudicated perjury
    
    • Any witness may be cross examined about prior false statements under oath.
    • Extrinsic evidence of the perjury is not allowed
  • False rape accusations
    
    • In a rape case, the complaining witness may be cross examined about having made prior false accusations of rape
    • If the witness denies making the false accusations, extrinsic evidence of the false statements is admissible

Question 23

Contradiction

Answer 23

1. Demonstrates that a witness got a particular fact wrong in their testimony
2. Limited
   
   1. Cross examiner bound by answer given as to collateral matters (must take the answer)
   2. No extrinsic evidence allowed to imprach on a collateral matter- something not essential to the case

Question 24

Impeaching Hearsay Declarants

Answer 24

1. When hearsay statement admitted, declarant can be impeached by evidence that could be used if the declarant took the stand.
2. e.g. dead witness can be imprached with perjury conviction

Question 25

Rehabilitation

Answer 25

1. Witnesses, cannot be rehabilitated unti after impechment. i.e. can’t intro evidence of good character not allowed—must wait until after impeachment
   
   1. Exception—prior statement of identification
      
      1. Eg. Another witness ID’s witness as person who did the crime
2. Must meet the attack
   
   1. e.g. if impeached for incosistent statement, can rehab by providng reason why inconsistent; if impeached for poor rep for honesty, can rehab thry witness for good character for honesty

Question 26

Prior Consistent Statements

Answer 26

1. Prior consistent statement may be used if:
   
   1. Rebuts charge of recent fabricaton
      
      1. Statement must have been before motive to fabricate existed, or
   2. Tends to rehab witness who has been imprached on some other ground (e.g. sensory defect) in addition to rehab, these statements are considered nonhearsay and may be admitted substantively