Impeachment Flashcards
During the testimony of Albert Speer about providing the potassium permanganate to the defendants, he changes a significant part of what he has said in the past. The prosecutor then begins to treat him as a hostile witness and cross examines him about the prior statements he has made. The defendants object that it is improper for the government to try to impeach their own witness. How should the judge rule?
Can impeach; but just because can impeach does not mean you can treat him as hostile; need to show more to have him described as hostile (RULE 607)
Before, had to have him defined as hostile before could impeach but now does not matter
The judge agrees that the government should not just immediately begin to treat Speer as hostile and instead asks the government to move that Speer be declared a hostile witness. The government makes that motion and the defendants object that merely remembering something differently does not make a witness hostile. The judge agrees and prevents the government from impeaching Speer. (Okay, I know they can refresh recollection, etc.) The government files an interlocutory appeal. What will the government argue to the Court of Appeals on this issue?
Just because not hostile doesn’t keep him from being able to impeachment; appeals will overturn and say should have let him impeach the witness
Can impeach your own witness even if they aren’t hostile
Harry Hines is a long time user of heroin. He was high on heroin at the time of the gas clouds. Having been found to be a competent witness, he is called by the government to identify defendant George Ginaris as the person Hines saw running from the AB site just before the explosion. Ginaris wishes to question Hines about his heroin addiction and his use of heroin on the day of the blasts? The government objects that this is improper character evidence and impeachment by extrinsic acts. How should the judge rule?
Might affect perception; use of heroin
Addiction? Might be unduly prejudicial; being addict effects ability to perceive and remember; allows good faith belief it is helpful
Not character, just trying to show his affected perception
Unless he issues a denial…
Leslie Krom has long protested AB’s environmental record. He frequently pickets across from the main entrance to AB with signs that call AB a prime murderer of the environment. Krom was present outside the AB site during the time of the explosion. The judge, having found that Krom’s potential bias does not make him an incompetent witness, is called by the plaintiffs to testify about what he saw AB employees doing immediately after the explosion. AB tries to cross examine Krom to show that the location at which he was standing made it impossible for him to have seen what he describes. Plaintiffs object that this is improper impeachment. How should the judge rule?
Permissible to show could not have seen impossible
Allow this in to show bias of the witness; admissible impeachment by contradiction
The defendants have learned the Nguyen and two friends hijacked a fishing 3boat on the South China Sea and forced the captain and his son to take them to Hong Kong. Along the way food ran out and Nguyen and his friends killed and ate the captain. They were arrested as they entered Hong Kong harbor, but as it was just the word of the captain’s son against the word of Nguyen and his two friends the Hong Kong authorities did not press charges and Nguyen was allowed into the United States. On cross examination the defendants question Nguyen about this conduct. The government objects this is not proper impeachment as there was no criminal conviction. How should the judge rule?
Does it go to his credibility? Does it go to his truthfulness? Hasn’t done anything to allow him to go into his truthfulness? Need some semblance of a legal argument
Assume that the judge allows the questioning, and during cross examination Nguyen denies the allegations, saying that they paid the captain for passage to Hong Kong and the captain was lost in a storm at sea. In their direct case, the defendants wish to call the captain’s son to tell contradict Nguyen’s version of the events. The government objects that the defendants may not impeach Nguyen with extrinsic evidence. How should the judge rule?
DO allow extrinsic evidence because don’t let witnesses lie; 403 issue because prejudice of cannibalism
Assume that the judge allows the questioning, and during cross examination Nguyen admits the allegations. In their direct case, the defendants wish to call the captain’s son to tell his version of the events, which is the same as Nguyen’s. The government objects that the defendants may not introduce this evidence. How should the judge rule?
Not allow; admitted it so there is nothing to impeach; he has admitted the fact
The ATF agent who conducted the interviews of the defendants is called by the government in the direct case to testify about the interviews. On cross examination the defendants wish to question him about the following administrative sanctions which have been leveled against him over his 20 year career with the ATF:
a. 3 years ago he lost a week of pay for submitting a travel voucher which added taxi fare when the agent had never taken a taxi. The agent’s explanation was that this occurred in London, England and the government’s per diem was so low that he had to pay out of his own pocket for government expenses.
b. 1 year ago he was placed on 2 days of unpaid leave because he was involved in an automobile accident while on duty. It appeared that he and the other driver were equally at fault.
c. 18 years ago, he was placed on 6 months’ probation by the ATF for using excessive force in subduing a suspect who fought during an arrest.
d. 14 years ago he was placed on a one month unpaid leave because he submitted a report of an interview which left out an exculpatory statement made by the subject being interviewed.
a. 3 years ago he lost a week of pay for submitting a travel voucher which added taxi fare when the agent had never taken a taxi. The agent’s explanation was that this occurred in London, England and the government’s per diem was so low that he had to pay out of his own pocket for government expenses.
Not under 609 or Character goes to general credibility of the witness
b. 1 year ago he was placed on 2 days of unpaid leave because he was involved in an automobile accident while on duty. It appeared that he and the other driver were equally at fault.
No because doesn’t go to his ability to tell the truth
c. 18 years ago, he was placed on 6 months’ probation by the ATF for using excessive force in subduing a suspect who fought during an arrest.
Courts are concerned with age but this is not 609; still be a consideration; probably not but if defendant claimed he beat the confession out of him then maybe
Doesn’t have to do with credibility
d. 14 years ago he was placed on a one month unpaid leave because he submitted a report of an interview which left out an exculpatory statement made by the subject being interviewed.
Age an issue but goes to his investigatory ability; will ignore the age because of the conduct; regardless of the age of the incident
Albert Speer has a number of prior convictions which the defendants seek to present to impeach Speer during his cross examination. Which may be used, and how should the judge consider each conviction?
a. A 20 year old conviction for bank robbery for which he received a 20 year sentence. Speer was released from custody after serving 5 years of the sentence.
b. A 15 year old misdemeanor conviction for marijuana possession for which he served 30 days in jail.’
c. A 15 year old conviction for burglary for which he received a 1 year terms of imprisonment followed by a 5 year term of probation. Speer served the 1 year in prison and at the end of his 5 year term of supervision was convicted of speeding in a school zone. Based on that conviction, his probation was revoked and he was given a 2 year term of imprisonment, which he served in full.
d. A 7 year old burglary conviction in the State of Arkansas. The state law considered the crime a serious misdemeanor for which there was a potential term of imprisonment of up to 3 years. Speer received a 6 month jail term.
e. A 2 year old misdemeanor conviction for filing a false document with the Social Security Administration.
a. A 20 year old conviction for bank robbery for which he received a 20 year sentence. Speer was released from custody after serving 5 years of the sentence.
Look to release or conviction; 15 years; probably not but judge still has discretion
b. A 15 year old misdemeanor conviction for marijuana possession for which he served 30 days in jail.’
No; 15 years old; not a crime of falsehood or dishonesty (and not a felony)
c. A 15 year old conviction for burglary for which he received a 1 year terms of imprisonment followed by a 5 year term of probation. Speer served the 1 year in prison and at the end of his 5 year term of supervision was convicted of speeding in a school zone. Based on that conviction, his probation was revoked and he was given a 2 year term of imprisonment, which he served in full.
Probation is revoked becomes 7 year sentence so let it in
d. A 7 year old burglary conviction in the State of Arkansas. The state law considered the crime a serious misdemeanor for which there was a potential term of imprisonment of up to 3 years. Speer received a 6 month jail term.
Burglary is not a crime of dishonestly; definition of felony is a crime punishable by minimum term of one year; this is a felony for purposes of 609
e. A 2 year old misdemeanor conviction for filing a false document with the Social Security Administration.
Allow it; element of falsehood; misdemeanor
Kelly Black’s testimony of what she saw in defendant Ginaris’ Motel 6 room is damaging to the defendants’ case. The defendants have questioned her about any racial animosity and she has denied any racial animosity. The defendants now offer the following: (note: this is not character impeachment but factual impeachment)
a. Witnesses will testify that Black had a reputation in the neighborhood in which she lived as a racist.
b. Witnesses will testify that Black was seen at a number of anti-civil rights protests.
c. The opinion of co-workers at Motel 6 that Black harbors deep racial animosity towards African-Americans.
d. The statement by a co-worker that Black had lied to the co-worker about Black’s ability to repay a personal loan.
May show dishonesty but do we force it into character?
e. Witnesses will testify that Black’s reputation for truthfulness was poor.
Exactly what rule allows
The government objects that none of these are proper impeachment. How should the judge rule on each of these offers?
b) Can only prove reputation of untruthfulness
Barbara Notstadd is intensely cross-examined about her testimony concerning the conversation between the three defendants. She finally shouts back at defense counsel that she would never lie because that would be against the rules of her religion. Notstadd is a Wiccan. The defendants wish to present the testimony of a Wiccan priest that their religion does not ban all lying, but allows it in defense of a person or their reputation. The government objects that this is impeachment through extrinsic evidence and it not allowed. How should the judge rule?
Lost benefit of 610 as using her religion offensively; allow impeachment by contradiction
William Hunt is a chemist employed by AB in St. Louis. He is called in the civil case by the plaintiffs wish to have him testify that about 5 years ago he became aware that the ammonia and chlorine bleach tanks were in close proximity and this caused him concern because of the potential for a chlorine gas cloud. He states that he went to his supervisor to discuss his fears and was told not to worry as the supervisor said he had already informed management of the issue. AB wishes to cross examine Hunt about whether any of the following are true:
a. He has since been hired by Coors and has been offered a bonus from Coors if he testifies against AB.
b. He was denied a promotion at AB after the blast and before he quit. He felt the refusal to promote him was related to his age and now hope to harm AB with his testimony.
c. As the plaintiffs are using him as an expert witness, he is being allowed to charge fees that any expert would charge for testimony. Further, he has been offered a bonus if the plaintiffs win the suit.
How should the judge rule and why?
a. He has since been hired by Coors and has been offered a bonus from Coors if he testifies against AB.
Allow because suggests that he has a motive to lie; financial benefit, bias
b. He was denied a promotion at AB after the blast and before he quit. He felt the refusal to promote him was related to his age and now hope to harm AB with his testimony.
Allow because hostility; have to have a good faith belief
c. As the plaintiffs are using him as an expert witness, he is being allowed to charge fees that any expert would charge for testimony. Further, he has been offered a bonus if the plaintiffs win the suit.
Bonus for sure allowed in as financial gain; always let them hear about the expert fees especially if they are being paid more than a normal witness
Plaintiffs call Dr. Heinrich Schliemann to testify about the effects of the chlorine gas on victims. Dr. Schliemann bases his testimony on a new medical technique for analyzing damage to human tissues which he has invented. After a Daubert hearing, the trial court allows the testimony. AB wishes to cross examine Dr. Schliemann about whether he is trying to promote his new and unaccepted technique through appearing at the trial. The plaintiffs object this is not proper impeachment. How should the judge rule and why?
Allow because goes to personal bias of his testimony financial; another motivation for testifying?
Kelly Black has said that the defendants used room 6 and room 10 during pre-trial interviews. After she testifies on direct that the defendants used room 6, the defendants wish to cross examine her from the prior interview report where she said they used room 10. To do this, defense counsel asks Black if it is not true that the defendants used room 10. When she denies this, counsel then asks her if she remembers making a statement to ATF agents about the case. Black says “yes.” Counsel then asks her if she remembers telling the ATF agent that the defendants used room 10. When she denies this, counsel reads quotes from the report and asks her if that conversation occurred. The government objects that this is not proper impeachment because Black was not first shown the statement. How should the judge rule and why?
Does not matter that she was not shown the statement first 613 explicitly says it does not have to be done
Government counsel also requests a copy of the statement being used. Defense counsel states it is an ATF report so the government must already have the report. Should the judge require the defense to produce a copy of the report to the government?
Must turn it over because they requested it; even if they have it courts will make you turn it over
