Impeachment Flashcards
character based impeachment
608 W character for un/truthfulness
609 prior criminal convictions to show W untruthfulness
not character based impeachment
conflicting statements with other E
Prior inconsistent statements
E of bias
608
impeachment on character of truth
(a) A W’s credibility may be attacked or supported by testimony about the W reputation for having a characcter for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.
but E of truthful character is admissible only after the W’s character for truthfulness has been attacked
(b) except 609, extrinsic E is not admissible to prove specific instances of a Ws conduct in order to attack or support the W character for truthfulness
but the court may, on cross, be allowed to inquire into if probative
Applies in civil and criminal cases
either party may initiate an attack on credibility and is for the truth only
US v. Whitmore
drug and gun charged soley based on testimony of soto- cop
D theory: Soto planted gun
E: D offers 3 W to testify on Sotos character for untruthfulness and cross of Soto on prior acts
3 W’s
Local reporter - reputation (court said too remote in time)
criminal lawyer- R&O (not speaking on behalf of community)
friend of Soto 5 yrs ago- R&O (too remote in time)
For reputation, must be
1. acquantance with W, and
2. acquaintance with his community and
3. know the circles in which he moves
cross: on child support and license suspension
held: DMV record clearly enough to provide basis for questions
If D denies then have to go with answer- no EE permitted
609
impeachment by E of a Conviction.
(a) the following rules apply to attacking a Ws character for truthfulness by E of a criminal conviction:
(1) for a crime that… was punishable by death or imprisionment for more than 1 year, the E
(A) must be admitted, subject to rule 403, in a civil case or in a criminal case in which the W is not a D;
(B) must be admitted in a criminal case in which the W is a D, if the probative value outweights its prejudicial effect to that D
(2) for any crime regardless of punishment, the E must be admitted if the court can readinly determine that establishing the elements of the crime required proving- or the W admitting- a dishonest act or false statement
basis for 609
i. more likely to lie if W has a felony conviction
ii. cannot use for propensity reasoning
iii. juries understand the difference between purpose
609 5 standards
609a2: dishonest crimes shall be admitted- no balancing
609a1: crimes over 1 yr, W not the accused- should be admitted, subject to 403
609a1: crimes over 1 yr, W is the accused- probative value must exceed prejudice- strict balancing
609b- 10 yr rule- presumptively not admissible unless probative value substantially outweighs the prejudice
609d- juvilnile- never in a civil case or to impeach the D, only allowed with others if 1) OK by rules above, 2) necessary for fair determination of guilt/innocence
US v. Brewer 1978:
Kidnapping and autotheft
D moves to exclude priors if D testifies
4 priors:1960 kidnapping; 1968 aggravated assault and rape
all felonies- punishable by over 1 year
10 yrs is measured from the date of conviction or date of release from confinement, whichever is later
1986 charges, D released within the last 10 years and 1960 charges was recommitted unitl 1976 and is within the last 10 yrs.
Used against the D and does not get balancing- to admit, probative value must exceed prejudice
consider these 5 factors:
1. nature of the crime
2. W subsequent history
3. similarilty between past and charged crime
4. importane of D’s testimony
5. centrality of the credibility issue
Held: 3 offenses from ohio in 1968 are admitted
kidnapping charge from 1960 is out- too much like the present charge prejudice is high and probative value is lower because other crimes are being admitted.
note: the more the D needs to testify, the less likely the court should admit the crime.
US v. Valencia
cocaine distribution case
E: prosecution offers prior sale of controlled substances under 404b- excluded
TC: prior sale is admissible to impeach D once D testified
D argued: since it was inadmissible for 404b purposes, cannot be admitted for 609a balancing
Held: E serves legitimate impeachment purpose, and probative value is the additive value of 404b use and impeachment use.
admit
altobello v. Borden
age discrimintation suit
p impeached by a prior conviction for a theft offense
theft statute: 3 ways to prove elements, 6 mo imprisionment possible- when P plead, admitted he tampered with electricity meters
not admissible under 609a1 because 6 mo
under 609a2? act of deceit?
Held: admissible under 609a2 because this crime necessarily involved dishonesty becuase intending to decieve the electrict company.
W rehabilitation
when party has attacked character for truthfulness
608a: R&O testimony re W untruthful character
608b: evidence of SIC re W untruthfulness on cross
-bias is not a character attack
609: impeachment for truthfulness by W conviction
Then, proponent may respond and bolster:
1. call new W to discuss the W 1 character for honesty (608a2) on direct must be R&O only
2. may cross W about SIC showing W1 character for untruthfulness BUT; no extrinsic E
US v. Bonner
DA bosltered character for truthfulness, D convicted
Attacks on W character? Opening statement and Q’s on cross
DC attacks on the W were not impeaching character= no bolstering allowed
were these statements impeaching W character for truth
Held: allowed bolstering; E of bias or interest does not qualify as a general attack for truthfulness
Extrinsic Evidence
Dissallowed:
405: May cross on SIC, but cannot then offer EE of the SIC offered solely for the character trait
608: cross on SIC, but stuck with answer, but cannot then offer EE of the SIC offered solely for character
Some allowed in limited circumstances:
609: prior convictions- true exception under 608b
evidence shows charater under 405/608 and also for other valif purpose
when not attacking character, but addressing the specific lies in this case- noncharacter theory for impeachment
Hall v. State:
D wants to call 2 Ws to testify about DA star W, S
w1: S accused w of meth possession to help themselves
w2: S blackmailed him to get car repairs
D: offering these W to show that S is a liar in general
TC held denial of W was proper
w2; regarding car repairs, EE of SIC- out
w1; regarding meth possession threats, the D offering the plea deal and convcition is good enough to impeach, dont need the SIC- out
