Impeachment Flashcards
General Concept of Impeachment
• The proponent of a witness OR the opposing party may try to show flaws in the witness and his/her testimony
- You are trying to destroy the witness’ credibility
• The credibility of a witness may be attached by any party, including the party calling the
witness
- Can impeach your own witness
- In CA, can use prior inconsistent statement not just for impeachment, but also for the truth of the matter/substantively
- In Federal court, can only use to say she is a liar, not that the first statement is the truth of the matter
5 types of impeachment
(1) Bias
• Relationship, etc.
(2) Impaired capacity
• Maybe drunk, etc.
(3) Bad character
• Prior bad acts
• Convictions
• Reputation or opinion
(4) Prior inconsistent statements
(5) Contradiction
Methods of impeachment
o Bias
- Cross examination
- Extrinsic
o Impaired capacity
- Cross examination
- Extrinsic – bring someone else in to say..
o Character evidence
- Prior bad acts (cross only)
- Convictions (cross and extrinsic)
- Reputation and opinion (extrinsic only)
o Prior inconsistent statements
- Cross examination
- Extrinsic
o Contradiction
• Extrinsic only
Impeachment – Bias
Generally trying to show the witness is swayed in his testimony for some reason
- Perhaps relationship to a party
- Perhaps motivation to cut a deal with prosecution
- Cut a plea deal – need to disclose
- Interest in how case comes out can be a bias
United States v. Abel
o Abel indicted for robbery w/ 2 accomplices.
o Person on witness stand – bias?
- Want to cross-examine to show bias
• Aryan Brotherhood – prison gang
• Lie for each other on the witness stand - try to bring out part of organization sworn to lie on witness stand and are
biased against all
o Extreme: Most of the time have to do with relationship with one another, or interest in the lawsuit or the property
Impeachment – Sensory or Mental Capacity
- Witness only had a brief chance to see or hear what he described
- Witness was under influence of drugs or alcohol which may have altered perception
- Witness has some sort of mental defect which may have altered perception
Impeachment – Bad Character
See handout on character for truth and veracity.
(Witness on witness stand and trying to impeach with untruth – trying to show that they are a liar)
- First witness gives straight testimony
- Showing the general character of a witness is untruthful
• A second witness testifies to the opinion or reputation of the first witness for untruthfulness
- Once character of untruthfulness is admitted, opposing side may try to rehabilitate (really honest/truthful person)
- Ends up being cumulative, pissing match
- A third witness testifies to opinion or reputation of first witness for truthfulness
- Prosecutor calls X as sole witness against D. theoretically D can call 10 character witnesses to attack X, but in practice, would not want to.
• Prosecutor could then call 1- character witnesses who say X is truthful, but practically speaking don’t want to
Impeachment – bad character contd.
o Cross specific instances of conduct
- Except for a criminal conviction under rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’ conduct in order to attack or support the witness’ character for truthfulness
- But the court may, on cross-examination, allow them 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 being cross-examined has testified about.
o Extrinsic evidence forbidden
- Must accept witnesses answer – cannot contradict by calling another witness – no trials within trials
o Examiner must have good faith basis for asking such questions about prior bad acts
- Cannot just make up a story
o Admitted at discretion of judge
Video Clip #1
o Defendant on witness stand – trying to impeach him
- Only goes to truth or veracity – that he is a liar on witness stand
- Not trying to show bad character or that he is a violent man – beingviolent does not make you a liar on the witness stand – improper for this
o Discharged from the army for psychiatric reasons
- Might come in to show whatever his perception of what happened may be altered by a mental capacity
o Beat up an officer with a shovel
- Prior act of violence – cannot bring in even under character evidence
o Arrested for assaulting an aid
- Prior act of violence – don’t come in
o Punch attorney in face
- Prior act of violence – don’t come in
o Isn’t it true you lied to a congressional aide?
- Not okay – cannot cross examine witness himself about own prior bad acts. Only reputation or opinion of the witness by someone else.
Video Clip #2
o Going to bias
- Maybe get a better deal for testifying?
- If he was offered a better deal, would show bias – jailhouse snitch
o For acts of dishonesty
- Assault with deadly weapon – act of violence – can’t come in
- Arson – act of violence – can’t come in
Prior Convictions - General Theory
Someone convicted of a crime would have no issue lying on a witness stand, despite being under oath. Oath means less to them.
Prior Convictions - General Rule
- Impeach with crimes “punishable by death or imprisonment in excess of one year” (felonies), subject to balancing test by judge
- Impeach with ANY CRIME involving “dishonesty or false statement” (even misdemeanors)
Prior Convictions - Break Down
• Civilian witness on stand – court must balance whether the conviction’s probative value for impeachment purposes is “substantially outweighed” by the danger of unfair prejudice
- Ex. Involuntary manslaughter – fraternity accident – deserve to be called a liar on the witness stand? Maybe not. Weigh that.
• Defendant on witness stand – court must balance whether the conviction’s probative value for impeachment purposes is “outweighed” by the danger of unfair prejudice
Crime involving dishonesty means:
- The elements of the crime itself proving a dishonest act or false statement (ex. forgery, perjury, embezzlement, etc.)
- Or within the course of the crime the perpetrator did a dishonest act or made a false statement for purposes of completing the crime (ex. theft by fraud)
- No balancing test by judge
- Prior conviction must be admitted
Time limit for convictions
Time limit: 10 year rule. If prior conviction is older than 10 years, generally not going to come in.
- Is conviction date; or
- Date of release from confinement from that conviction
- Within 10 years of this current matter?
Step by Step Approach to Priors (SEE HANDOUT)
Step 1: Is conviction or date of release from confinement from that conviction within 10 years?
• Judge can make exception
• If yes, go to step 2. If no, you’re done.
Step 2: Is the conviction
- a felony (crime punishable by death or imprisonment in excess of one year); or
- a crime involving false statement or dishonesty as an element or circumstances of crime?
- If yes – go on to step 3, otherwise done.
- Crime of dishonesty: perjury, false statement, criminal fraud, embezzlement, false pretenses, counterfeiting, forgery, filing false tax returns
- Theft crimes may or may not involve dishonesty or false statements – petty theft, robbery, or receiving stolen goods may not qualify unless actual statements made by an accused
o Ex. said let me borrow that – knew you weren’t borrowing it, but stealing it – elevate to crime of dishonesty
o Rap sheet will not have enough info to figure this out – could say petty theft even though it was a theft with false statements – used false statements in course of the theft
Step 3: Is the conviction for a crime where the prosecution must prove false statement or dishonesty as an element?
- If YES, done – Crime comes in for impeachment without any further steps. Judge has no discretion to keep that out. Can be felony or misdemeanor. Does not matter whether defendant or witness. Even if dishonesty not an element of the crime, look to see if make dishonest statement in course of the crime – that elevates it for purposes of impeachment.
- If no, go to step 4
Step 4: Is the witness also the accused in a criminal case? (is it a witness or the defendant?)
• If No – go to step 5
• If Yes – go to step 6
Step 5: Is the conviction’s probative value “substantially outweighed” by the danger of unfair prejudice?
• Judge has to decide is it substantially outweighed?
• If yes – conviction not admissible
• If no – conviction is admissible
• Ex. defendant on trial for robbery, witness takes stand and has prior robbery in her history – not going to be as concerned that jury will hear of witness’ robbery and
somehow equate that to convict defendant?
• Ex. involuntary manslaughter – could be an accident – do you allow impeach?
• **If D on witness stand – do not answer with substantially answer – that is for a witness.
Step 6: Is the conviction’s probative value outweighed (not substantially outweighed) by its prejudicial effect? (for defendant)
- If yes – conviction not admissible
- If no – conviction is admissible
- Weigh – probative value of telling jury he might be a liar v. jury wrongfully convicting
- If on trial for robbery and had prior robbery – probably allow impeachment but change name to something else. Practical reality, defendant has to think twice before take witness stand because going to be impeached.
Robbery is a crime of violence, not necessarily a crime of dishonesty
