Impeachment Flashcards
Five main ways to impeach-CBSPC
a. Character for truthfulness
b. Prior inconsistent statement (PIS)
c. Bias
d. Sensory or mental defect
e. Contradiction of testimony by another witness
Prior inconsistent statement (PIS)
- Extrinsic evidence may be used to prove the PIS if a. The witness who made the PIS is given an opportunity to explain or deny , and b. The proponent of the PIS is given an opportunity to interrogate the impeaching witness.
- FRE limitation: If not given under oath , the PIS can only be used for impeachment purposes. (CEC does not have this limitation.)
Character for truthfulness
This can be shown by reputation and opinion, past crimes, past bad acts.
Bias
A witness may be impeached by a showing of bias, self- interest, or motive. Extrinsic evidence is allowed if the witness is given an opportunity to explain or deny .
Sensory or mental defect
A witness may be impeached by showing that his capacity to observe or remember is impaired.
Contradiction of testimony by another witness.
However, this rule is limited and can’t concern a collateral matter. A collateral matter would be contradiction on a fact not material to case, but only contradicts the witness.
Impeaching witness’s character for truthfulness
Note that this is accomplished through character evidence regarding truthfulness, so be mindful of the character evidence rules discussed above.)
a. Reputation and opinion regarding truthfulness is allowed , but inquiry into any specific acts that led to the witness’s opinion or the person’s reputation is not allowed.
b. Specific bad acts that bear on truthfulness 1. FRE: Specific bad acts that are probative of truthfulness may be inquired into on cross examination but are always subject to the legal relevance balancing test.
a. The question must be made in good faith.
b. Extrinsic evidence is not allowed to prove the bad act, so essentially the questioner is stuck with the answer received from the witness.
2. CEC
a. Civil court: Prohibits the extrinsic evidence and the initial cross examination.
b. Criminal court: Prop. 8 permits both the initial cross examination and the extrinsic evidence (subject to the legal relevance balancing test).
Impeaching with criminal conviction-Crimen falsi (FRE)
All convictions (felonies and misdemeanors) for crimes involving a false statement are admissible and the judge may not exclude under the legal relevance balancing test, unless the conviction (e.g., forgery, perjury, embezzlement, etc.) is more than ten years old.
Impeaching with criminal conviction-Felony conviction FRE
A balancing test is used to determine admissibility, depending on witness status.
i. Witness is criminal defendant: The conviction is admissible only if the probative value outweighs its prejudicial effect.
ii. Other witness: The conviction is admissible unless the prejudicial effect substantially outweighs the probative value.
Impeaching with criminal conviction-CEC: Felony convictions are admissible if
i. It has not been expunged , pardoned, etc.
ii. The felony involves moral turpitude , and
iii. Subject to legal relevance balancing test.
Impeaching with criminal conviction-Misdemeanor convictions
a. FRE: Misdemeanors that are not crimen falsi are not admissible to impeach .
b. CEC i. Civil court: Misdemeanors cannot be used to impeach a witness ii. Criminal court: Misdemeanors can only be used if it involves moral turpitude .
Impeaching with criminal conviction-Old convictions
Old convictions may not be used if more than ten years have elapsed from both the conviction and the prison term, unless specific facts make the probative value of the conviction substantially outweigh the prejudicial effect.
Rehabilitating impeached witnesses
a. Must meet the attack: The rehabilitating evidence must support the witness’s credibility in the same respect as the attack.
b. Good character: Can show witness’s good character where evidence of his character for untruthfulness has been shown.
c. A prior consistent statement (PCS) can be used to rebut an express or implied charge of recent fabrication, or that witness’s testimony was the product of improper motive.
Bolstering the witness
- FRE: Bolstering is not allowed. A lawyer may not offer evidence supporting a witness’s credibility until it has been attacked.
- CEC: Bolstering is allowed . Either side may offer evidence supporting a witness’s credibility before it has been attacked.
Impeachment
A witness’s credibility may be impeached by cross examination (or on direct, if witness is “hostile”), or with the proper foundation, by extrinsic evidence (i.e., other witnesses). Either party may impeach a witness.
