impeachment Flashcards
impeachment methods
2 ways to use impeachment methods
overview of impeachment methods
rehabilitation
credibility and impeachment
impeachment methods
2 ways to use impeachment methods
- Confront the witness
(Ask the witness about the impeaching fact) - Documentary evidence or other witness testimony
(Prove the impeaching fact w/extrinsic evidence)
impeachment methods
2 ways to use impeachment methods
use of extrinsic evidence
- The impeaching fact may be proven w/extrinsic evidence as to all but #6 Bad acts and #7 Contradiction of facts that are NOT collateral
- For IM that allow EE, it is not necessary to ask the witness about the impeaching fact before the EE is introduced except for #2 Bias, intent, or motive to misrepresent.
impeachment methods
overview of methods
- Prior inconsistent statements
- Bias, interest or motive to misrepresent
- Sensory deficiencies
- Bad reputation or opinion about witness’s character for truthfulness
- Criminal convictions
- Bad acts (w/o conviction) that reflect adversely on witness’s character for truthfulness
- Contradiction
impeachment methods
overview of methods
1. Prior inconsistent statements
Any witness may be impeached by showing that on some prior occasion, she made a material statement that is inconsistent w/her trial testimony
GP - impeachment to suggest she can’t keep story straight, NOT for substantive evidence
Exception: If PIS given under oath, can also be used for substantive evidence
impeachment methods
overview of methods
1. Prior inconsistent statements
Exception to allow as substantive evidence
A PIS of a witness may be ADMITTED both to impeach AND as substantive evidence (to prove totma in the inconsistent statement) IF:
- The witness is currently subject to cross exam AND
- The PIS was made A) orally under oath and B) as part of a formal hearing, proceeding, trial or deposition
impeachment methods overview of methods 1. Prior inconsistent statements Exception to allow as substantive evidence timing
Confrontation timing is flexible.
Not required to immediately confront witness, but after proof by EE, witness must be given an opportunity at some point to return to stand to explain or deny PIS.
EXCEPTION: No opportunity to explain need be given if witness is opposing party.
Also, PIS of opposing party can be used against that party as substantive evidence (party admission or statement by opposing party)
impeachment methods
overview of methods
2. Bias, intent or motive to misrepresent
Bias may be based on any fact that would give a witness a reason to testify (un)favorably about a party’s case.
GP: suggest testimony is false, slanted, or mistaken in party’s favor
impeachment methods
overview of methods
2. Bias, intent or motive to misrepresent
Examples
Witness is a party
Friend, relative or employee of a party
Person w/grudge against a party
Prosecution testifying pursuant to plea bargain
impeachment methods
overview of methods
2. Bias, intent or motive to misrepresent
Procedure
Witness must be confronted w/alleged bias while on stand.
If confrontation prerequisite is met, then bias may be proven by EE
impeachment methods
overview of methods
3. Sensory deficiencies
Anything that could affect witness’s perception or memory.
GP: to suggest mistake
impeachment methods
overview of methods
3. Sensory deficiencies
Examples
Bad eyesight, hearing
Mental retardation
Consumption of alcohol or drugs at time of event or while on witness stand
impeachment methods
overview of methods
3. Sensory deficiencies
Procedure
Confrontation not required
EE allowed
impeachment methods
overview of methods
4. Bad reputation or opinion about witness’s character for truthfulness
Call a character witness to testify that target witness has BAD REPUTATION for truthfulness, or that character witness has LOW OPINION of target witness’s character for truthfulness.
Any witness is subject to impeachment by this method.
GP: to suggest target witness is not telling the truth on the witness stand
impeachment methods
overview of methods
4. Bad reputation or opinion about witness’s character for truthfulness
Procedure
Confrontation not required
EE allowed
Character witness CANNOT prove other witness’s character for truthfulness w/SPECIFIC ACTS, even to show basis of opinion
impeachment methods
overview of methods
5. Criminal convictions
Evidence of criminal convictions
GP: to suggest testimony is false
Relevance: Person who has been convicted of a crime is more likely to lie under oath than is a person w/an unblemished record
impeachment methods
overview of methods
5. Criminal convictions
permissible convictions
- Conviction of any crime (felony or misdemeanor) as to which prosecution had to prove FALSE STATEMENT as an element of the crime.
(truth telling crime - automatic admissibility) - Felony, but court may exclude if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party
(factors on credibility - seriousness of crime, relation to deception and stealth)
(factors on prejudice - similarity to case being tried, inflammatory nature of prior crime)
impeachment methods
overview of methods
5. Criminal convictions
time limitation
Both categories - 10 yrs from conviction or release from prison, whichever is later.
If > 10 yrs, conviction may not be used for impeachment UNLESS probative value on credibility is substantial.
impeachment methods
overview of methods
5. Criminal convictions
method of proof
- Ask witness to admit prior convictions OR
- Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction
impeachment methods
overview of methods
6. Bad acts that reflect adversely on witness’s character for truthfulness
ONLY permissible procedure - confront witness on CROSS. No EE allowed.
Cross examiner MUST have good faith basis for the inquiry AND permission to make the inquiry is subject to court’s discretion.
Inquire about bad acts is limited to the act of untruthfulness itself, NOT its consequences, such as job termination, civil judgment, or arrest
impeachment methods
overview of methods
7. Contradiction
Cross examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct.
If witness admits the mistake/lie, she has been impeached by contradiction.
If witness sticks to her story, the issue becomes whether EE may be introduced to prove the contradictory fact.
EE NOT allowed for contradiction if issue is collateral
impeachment methods
rehabilitation
Showing witness’s good character for truthfulness
Prior consistent statement to rebut
impeachment methods
rehabilitation
showing witness’s good character for truthfulness
Only when impeachment suggests witness was lying, not just mistaken (#4, 5, 6)
by bringing out character witness
impeachment methods
rehabilitation
PCS to rebut
GP: PCS that fits w/in any of the rebuttal rules is admissible to rehabilitate credibility AND as substantive evidence that the prior statement was true. (Hearsay exclusion!)
a. To rebut a charge of recent fabrication
If witness’s trial testimony is charged as a recent fabrication, a prior consistent statement by witness will be ADMISSIBLE to rebut the charge IF the charge was made BEFORE the motive to fabricate arose.
b. To rebut a contention of inconsistency or sensory deficiency
impeachment methods
credibility and impeachment
Bolstering own witness
Impeachment of own witness
impeachment methods
credibility and impeachment
bolstering own witness
Bolstering own witness not allowed UNTIL AFTER witness’s credibility has been attacked.
Rehabilitation - post-impeachment repair of witness’s credibility
Exception: Witness’s prior identification of a person
- Comes in as substantive evidence
- Witness who made prior identification must testify at trial AND must be subject to current cross exam
impeachment methods
credibility and impeachment
impeachment of own witness
Permitted w/o limitation
Can impeach own witness on direct
