IMPEACHMENT

Question 1

IMPEACHMENT

Answer 1

1) Impeachment Approach and Overview
2) Collateral Matters & Extrinsic Evidence
3) Impeachment by Contradiction or Prior Inconsistent Statement
4) Impeachment by Bias or Interest
5) Impeachment by Prior Misconduct or Reputation for Untruthfulness
6) Impeachment by Prior Conviction

Question 2

Impeachment Approach and Overview

Answer 2

Impeachment casts an adverse reflection on the veracity of a witness’s testimony. Any party may impeach any witness.

Methods of Impeachment:

(1) Contradiction
(2) Prior Inconsistent Statement (PIS)
(3) Bias or Interest
(4) Sensory Deficiencies (e.g. W’s senses were incapable of producing the perceptions testified to)
(5) Reputation and/or Opinion for Untruthfulness. Admissible to impeach W’s veracity by use of extrinsic evidence
(6) Prior Acts of Misconduct
(7) Prior Criminal Convictions

Evidence SUPPORTING a witness’s credibility is INADMISSIBLE unless credibility has been attacked (i.e. W has been impeached).
» EXCEPTION: A witness’s prior consistent statement is ADMISSIBLE if the statement was made before witness had a motive to fabricate

Question 3

Collateral Matters & Extrinsic Evidence

Answer 3

Extrinsic evidence MAY NOT be used to impeach a witness on a collateral matters.

Extrinsic evidence is any evidence other than the witness’s testimony at the current proceeding. This includes evidence of prior inconsistent statements made out of court.

A collateral matter is a fact NOT material to issues in the case. It says nothing about the witness’s credibility, only used to contradict a witness.
e.g. W1 testifies he was headed to store when he say D commit murder, defense cannot call W2 to testify that W1 was really headed to see his mistress–this is collateral to the issue

Ask: Would it be material to the given issue if not for the witness’s contrary assertion? If not, it is likely collateral

Note: Extrinsic evidence is ADMISSIBLE on non-collateral (i.e. material) matters. Additionally, extrinsic evidence regarding collateral matters is only prohibits for impeachment purposes; it is admissible for other purposes (e.g. to show bias)

Question 4

Impeachment by Contradiction

Answer 4

Any evidence may be used to show a witness had made contradictory statements on material issues.

Question 5

Impeachment by Prior Inconsistent Statement (PIS)

Answer 5

A witness’s prior inconsistent statements may be used to impeach a witness’s present testimony.

A PIS may be established through cross-examination or extrinsic evidence. Extrinsic evidence is inadmissible if the PIS relates to a collateral matter. A witness must have an opportunity to explain or deny the statement (NOT required for PIS by hearsay declarant)

If PIS is hearsay, it is ADMISSIBLE for impeachment purposes, but INADMISSIBLE as substantive evidence (to prove TOMA)
i.e. Hearsay PIS may only be considered for its bearing on W’s credibility.
If the PIS is NOT hearsay or if it falls under a hearsay exception, it may be considered for any purpose.

Question 6

Impeachment by Bias or Interest

Answer 6

Evidence of a witness’s bias or interest in the outcome of a suit may be used to impeach a witness (because it tends to show motive to lie). Bias or interest may be established through cross-exam or extrinsic evidence.

The witness must be questioned on cross-exam regarding the facts that show bias or interest so that the witness has an opportunity to explain or deny.

Question 7

Impeachment by Prior Misconduct

Answer 7

A witness may be question on CROSS-EXAM about any prior misconduct probative of truthfulness (i.e lying or deceit). No extrinsic evidence is permitted, a witness may only be asked about prior misconduct; the questioning attorney must accept the witness’s answer.

Arrests are NOT misconduct–Must be an act of lying

Question 8

Impeachment by Reputation for Untruthfulness

Answer 8

A witness may be impeached by testimony describing her reputation for untruthfulness in the community.

Question 9

Impeachment by Prior Conviction

Answer 9

Prior Convictions:
FELONIES:
- If the witness is the Defendant a prior conviction of a felony is ADMISSIBLE if the government shows probative value outweighs prejudicial effect

• If the witness is NOT the Defendant a prior conviction of a felony is ADMISSIBLE, but the court can exclude under 403 balancing

MISDEMEANORS: A prior conviction of a misdemeanor is INADMISSIBLE unless it involves dishonesty

Prior Convictions Involving Act of Dishonesty are always ADMISSIBLE, however, the court has discretion to exclude under 403 (rare exception to 403). This includes felonies and misdemeanors

Convictions more than 10 years old (felonies & misdemeanors) are INADMISSIBLE unless probative value substantially outweighs unfair prejudice (Note: Inverse 403 balancing) AND the adverse party is given notice. More than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later