Impeachment Flashcards
Character for Untruthfulness
A witness can be impeached by their character for truthfulness or untruthfulness,
Intrinsic evidence of a witness’ past specific act is allowed to impeach a witness!
Rehabilitate for Character for Untruthfulness
If you want to rehabilitate via character for truthfulness or untruthfulness, you must wait until the witness’ character has been impeached first.
Extrinsic Evidence of Character for Untruthfulness
Extrinsic evidence of a specific instance of untruthfulness is not admissible to impeach the witness by reputation or opinion.
The court may, on cross examination, allow past specific acts to be inquired into if they are probative of the character for truthfulness or untruthfulness OF:
(1) the witness or;
(2) ANOTHER witness whose character the witness is testifying about
Prior Inconsistent Statement
General Rule: A witness’ prior inconsistent statement is admissible to impeach them.
R/E: Any party can use intrinsic evidence to impeach a witness with their prior inconsistent statement. A party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
Extrinsic Evidence of PIS
Extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to cross-examine the witness about it, or if justice so requires. If it meets either of these aforementioned requirements, then extrinsic evidence will be admissible so long as it a non-collateral matter.
A judge may allow extrinsic evidence of a PIS If justice so requires, meaning the witness was already dismissed and the proponent learned about the PIS after the witness was dismissed.
Contradiction
Impeachment by contradiction involves introducing evidence (usually bringing in a witness) that contradicts something the witness has said (Not PIS).
Contradiction is wider than PIS. Impeachment by contradiction is allowed so long as 401-403 are met.
Intrinsic Evidence of Contradiction
Impeachment by contradiction is admissible through intrinsic evidence.
Extrinsic Evidence of Contradiction
Extrinsic evidence is allowed, but NOT okay for collateral issues.
Extrinsic evidence may be admitted to impeach testimony by raising questions about a witness’ ability to perceive the events that transpired.
Relevance under 401-403 for Contradiction
Theory of Relevance for Contradiction under 401: If witness is wrong about X, you can infer witness is wrong about other things. Calls into question whether or not X saw/heard/etc what they are tesitfying to.
Theory of Relevance for Contradiction under 402: All relevant evidence is admissible unless rules say otherwise
Theory of Relevance for Contradiction under 403: Dangers of mini trials
Bias
Evidence of witness bias can be used for impeachment as long as it is relevant, and satisfies 403. Witness Bias can be anything that suggests the witness is impartial and has a reason to slant their testimony in one direction or another (personal interest, gain, corruption, ensure, belonging to a religious group). Usually introduced intrinsically. Extrinsic evidence is admissible, but not if the witness has already admitted or if it is collateral. Can be admitted for both impeachment purposes and substantive reasons.
Theories of Relevance for Bias under 401-403
Theory of Relevance for Witness Bias under 401: Makes it more probable W is slating his testimony or lying
Theory of Relevance for Witness Bias under 402: All relevant evidence is admissible unless the rules say otherwise
Theory of Relevance for Witness Bias under 403: Highly probative of insecurity, but dangers of mini trial
Examples of bias: moral/religious/gang affiliations, witness is an insurance adjuster
Attack (other) Testimonial Qualities
Impeaching by attack on other testimonial qualities beside character for truthfulness/untruthfulness or PIS refers to the witness’ ability to accurately remember, their ability to observe, their ability to relate accurately, or their lack of understanding of duty to tell the truth. There is no FRE rule here, but 401-403 can inform relevance and admissibility.
Prior Criminal Conviction
As long as a prior conviction isn’t pending an appeal, pardoned, annulled, or dismissed due to juvenile adjudication, then it can be admissible to impeach a witness subject to certain limitations. The test in FRE 609 is based on the type of case and the age and the type of conviction. The clock starts at the date of conviction or date D was released from physician confinement, whichever is later.
→ TOR for using criminal conviction to impeach:
is that If the witness was convicted of a previous crime, it shows that he has disregard for the law and therefore it makes it more probable than without the evidence that witness has a disregard for the oath he just took and is lying now.
Rule for when witness is NOT Criminal Defendant + NO Crimen Falsi + Less than 10 years old:
If the witness is not the defendant in a civil or criminal case and the prior conviction is less than 10 years old and not a crimen falsi, then the conviction will only be excluded if the probative value is substantially outweighed by the unfair prejudice (U.P IS WAY MORE). [Regular 403] The unfair prejudice substantially outweighed by the probative value
Felony= has to be sentenced to more than 1 year. Mention why it is a felony and not a crimen falsi
Crimen falsi= any crime having to do with fraud, dishonesty (embezzlement, tax evasion, perjury)
Can work for civil and criminal
Rule for when the witness IS a Criminal Defendant + no Crimen Falsi + Less than 10 years old:
If the witness is a criminal defendant and the prior conviction is less than 10 years old and not a crimen falsi, then the prior conviction will be admitted if the probative value outweighs the unfair prejudice.(P.V IS A LIL BIT MORE) [Regular Reverse 403, Weird Variation]. The probative value just has to simply outweigh the unfair prejudice in order to be admitted.
Only works for criminal
Rule for when the prior conviction IS a misdemeanor or felony crimen falsi and LESS than 10 years old:
If the prior conviction is a misdemeanor of felony crimen falsi that is less than 10 years old, then it can automatically admitted for substantive and impeachment evidence.
Reasoning: probative value is high. It automatically outweighs any unfair prejudice.
Can work civil or criminal
Rule for when the prior conviction is older than 10 years:
If the conviction is more than 10 years old, then it will only be admitted if: (1) the probative value substantially outweighs the unfair prejudice (P.V IS WAY MORE). [MEGA reverse 403]; and (2) if the proponent gives notice. The clock starts at the date of conviction or date D was released from physician confinement, whichever is later
Can work for civil or criminal
Factors to look at when balancing probative value:
How much does it show the witness is less truthful than someone without the conviction???
Look at the other factors:
How remote (age of conviction)
Relation to truthfulness (i..e assault doesn’t relate much)
Witness’s intervening behavior. Has the witness mended their ways?
Factors to look at when assessing unfair prejudice
Bad person is prejudice, even if witness is not the party b/c of association
Improper use → jury is going to use this as substantive character evidence
*Note → ESSF that this PSA occurred is high because based on beyond a reasonable doubt standard
