Impeachment

Question 1

Bolstering

Answer 1

Generally, party may not bolster or accredit the testimony of his witness (prior consistent statement) until the witness has been impeached

Question 2

Prior CONSISTENT statement

Answer 2

NOT considered hearsay and admissible for all purposes if made before a BRIBE. Also may be used to rehabilitate W credibility (bolster) when impeached on another ground.

Question 3

Who may impeach

Answer 3

Any party may impeach a W, including the party calling the W

Question 4

methods of impeachment

Answer 4

W may be impeached either by cross or by extrinsic evidence. But also a party may impeach his own witness on direct or redirect.

Question 5

Prior Inconsistent Statement

Answer 5

Extrinsic evidence may be introduced to prove PIS only if the witness was given an opportunity to explain or deny the statement

Usually, PIS is hearsay and thus admissible ONLY for impeachment purposes. If the PIS was made under oath at a prior proceeding (depo), however, it is admissible nonhearsay and can be admitted as substantive evidence of the facts asserted

CA: PIS hearsay if offered to prove truth of facts asserted, but one exception is VERY BROAD: ALL INCONSISTENT STATEMENTS OF WITNESS to show substantive evidence, whether or not under oath

Question 6

Bias

Answer 6

Evidence that a W is biased or has an interest in the outcome of the suit may impeach

Foundation: W must first be asked about the facts that show bias or interest on cross-examination

Evidence that is otherwise inadmissible (plea bargain, liability insurance) may be introduced if relevant to impeach for bias.

Question 7

Impeachment with Conviction for crime involving false statement

Answer 7

ALL convictions (felony and misdemeanors) for crimes of false statement (perjury, forgery, fraud are admissible. NO BALANCING

Exception: If more than 10 years old, INADMISSIBLE unless PV outweighs unfair prejudice

Question 8

Impeachment with conviction for a crime not involving false statement

Answer 8

Felonies that do not involve false statement (murder, robbery, rape) may be admissible to impeach, but court may exclude for unfair prejudice

Misdemeanors that do not involve false statements are inadmissible

Question 9

Impeachment with nonconviction misconduct evidence bearing on truthfulness

Answer 9

Acts of misconduct that did not result in a conviction are admissible to impeach in civil and criminal cases if the acts involved lying.

Extrinsic evidence is not permitted however. Can only cross examine about it.

CA: inadmissible in civil cases. BUT, Prop 8 makes it admissible in criminal cases if involves moral turpitude. Cross examination and extrinsic evidence permitted, subject to balancing.

Question 10

Opinion or Reputation Evidence for Truthfulness

Answer 10

W may be impeached by showing that he has a poor reputation for truthfulness.

Extrinsic evidence permitted (community rumors and such)

Question 11

Sensory Deficiencies

Answer 11

W may be impeached by showing that his perception and recollection were so impaired as to make it doubtful that he could have perceived facts testified to (no knowledge)

Question 12

Impeachment of Hearsay Declarants

Answer 12

Credibility of a hearsay declarant (the out of court speaker) may be attacked by evidence that would be admissible if the declarant had testified as a W

No need for an opportunity to explain or deny

Question 13

California Impeachment Rules for Prior Felony Convictions

Answer 13

All felonies involving MORAL TURPITUDE are admissible, but court must balance.

Felonies NOT involving moral turpitude are INADMISSIBLE

Question 14

Moral Turpitude

Answer 14

crimes of lying, violence, theft, extreme recklessness, or sexual misconduct. NOT crimes for negligent or unintentional acts

Question 15

California impeachment for prior misdemeanor convictions

Answer 15

CA: Inadmissible in all civil cases. HOWEVER, through prop. 8, misdemeanors involving MORAL TURPITUDE may be admitted in a CRIMINAL cases, subject to balancing.