Impeachment Flashcards
1
Q
A
2
Q
Impeachment
in general
A
- This person can’t be trusted, they are not believable
- Impeachment doesn’t depend on bad motives…. The witness may just be mistaken
-
Techniques
- Show impaired perception or memory
- It was dark
- You’d been drinking
- Demonstrate inconsistencies
- Show bias
- Attack character for truthfulness
- Show impaired perception or memory
3
Q
Impeachment
Tactics for dealing with damaging testimony
A
- Offensive
- Rebut the evidence
- Complete the story
- Clarify the ambiguous testimony
- Introduce expert testimony
- Defensive
- Show impairment of perception or recollection
- Demonstrate inconsistencies
- Show bias
- Attack the witness’s character for truthfulness
- Appeal to the Judge
- Exclude the evidence under a specific rule
- Exclude the evidence by demonstrating unfair prejudice, confusion, or delay
4
Q
Impeaching w/Prior Inconsistent Statements
fact of consequence vs. collateral issue
A
- If the inconsistency involves a fact of consequence, the judge will take time for extrinsic evidence
- If the inconsistency involves a collateral issue, the judge probably will limit exploration to questions
- On a collateral issue, you are stuck with the witness’s testimony.
- Bias is never collateral.
When is it a fact of consequence or collateral?
- Fact of consequence: speaks to the elements that are trying to be proved
- Collateral: information used only to impeach
- We don’t want to have trials within trials on collateral issues
5
Q
Intrinsic vs. Extrinsic evidence
A
Intrinsic: what comes from the witness’s testimony on the stand
Extrinsic: all else
6
Q
FRE 613
Impeach with prior inconsistent statement
A
- Statement must have been made under oath and in a proceeding
- A police report is not a proceeding
- May ask witness about prior statement without showing it to the witness first
- But must show statement to opposing counsel on request
- If you use extrinsic evidence of prior statement, the witness must have an opportunity to explain or deny
- Opponent must have opportunity to examine witness
7
Q
Who may impeach a witness?
FRE 607
A
Any party may attack the credibility of any witness.
When would you attack your own witness?
- Hostile witness
- Witness changes story
- To draw the sting from something harmful that you fear may be presented later
8
Q
Impeachment methods
A
- A witness may be impeached either by
- cross-examination; or
- by eliciting facts from the witness that discredit his own testimony
- extrinsic evidence
- by putting other witnesses on the stand who will introduce facts discrediting his testimony).
- cross-examination; or
9
Q
FRE 608(b)
Impeaching a witness for untruthful character
A
- Allows parties to suggest a witness’s untruthful character by cross-examining the witness on specific acts related to untruthfulness
- Parties must have a good faith belief to support their questions
- Probable cause… reasonable belief standard
- May only ask about matters related to truthfulness or untruthfulness
- Parties must have a good faith belief to support their questions
- Parties must accept the witness’s response to questions on cross-examination
- They may not introduce extrinsic evidence to prove that the witness committed particular acts showing untruthfulness
10
Q
Impeaching for untruthful character
CEC 787 (DIFFERENT from FRE!!)
A
CALIFORNIA
- Civil cases
- cannot ask about SIC
- Criminal cases
- prop 8 permits evidence of SIC
- by both questions and extrinsic evidence.
- They must still be probative of truthfulness.
- by both questions and extrinsic evidence.
- prop 8 permits evidence of SIC
11
Q
FRE 609
Using Criminal convictions to impeach a Witness
A
- Rule 609 establishes a complex scheme governing evidence of prior criminal convictions offered to impeach a witness’s character for truthfulness
- This rule allows introduction of this evidence
- (a) only against the witnesses, and
- (b) only to impeach character for truthfulness
- Subject to a limiting instruction; the jury should not use this evidence to decide guilt, innocence, or other substantive issues
- Applies to civil as well as criminal cases
- Pendency of an appeal from a prior conviction does not bar the use of that conviction to impeach the character of a witness
12
Q
FRE 609 Using Criminal convictions to impeach a Witness
3 categories of criminal convictions
A
- Felony convictions / any witness except a criminal defendant
- Felony convictions / criminal defendant
- Crime involving a dishonest act or false statement / any witness including defendant
13
Q
FRE 609 Using Criminal convictions to impeach a Witness
Felony convictions / criminal defendant
A
- Prior felony convictions are admissible against a criminal defendant who takes the stand only if the judge makes a distinctive finding that probative value outweighs prejudicial effect
- Burden is on the prosecutor to demonstrate probative value vs P.E.
- Rule 403 in contrast puts the burden on the party opposing admission that P.E. substantially outweighs P.V.
14
Q
FRE 609 Using Criminal convictions to impeach a Witness
Crime involving a dishonest act or false statement / any witness including defendant
A
- Rule 609 allows litigants to use ANY conviction for a crime of dishonesty or false statement, no matter the sentence, to impeach any witness’s character for truthfulness
- Trial judges have no discretion to exclude prior convictions for dishonesty or false statement
- NOT subject to 403
- Trial judges have no discretion to exclude prior convictions for dishonesty or false statement
- A relatively small number of crimes meet this requirement:
- perjury, fraud, embezzlement
- Other crimes for which a dishonest act or false statement is an element
- Ex: Theft and poisoning do not qualify
15
Q
FRE 609 Using Criminal convictions to impeach a Witness
Time Limits
A
- An older conviction is less probative of a witness’s current truthfulness than a recent one
- To use a conviction that is more than 10 YEARS old
- Party seeking to use the conviction must give the adverse party reasonable written notice
- The judge must find specific facts and circumstances supporting the conviction’s probative value
- The judge must determine that the probative value of the conviction substantially outweighs its prejudicial effect (reverse of 403)
- Burden is particularly tough… evidence is excluded if P.E. is “somewhat less than probative value”
- The clock starts at conviction or release date, whichever is later
