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
16
Q
FRE 609 Using Criminal convictions to impeach a Witness
Pardons, annulments, and certificates of rehabilitation
A
- In most cases, a conviction that has been subject to one of these procedures cannot be used for impeachment
- Except if they are convicted of a subsequent felony and the pardon (etc) is not based on a finding of innocence
17
Q
FRE 609 Using Criminal convictions to impeach a Witness
Juvenile Adjudications
A
- These convictions are NEVER admissible against the accused in a criminal case
- Most of the time they are not admissible to impeach the character of any other witness.
- IS admissible when the evidence is necessary to fairly determine the defendant’s guilt
18
Q
CEC 788
Using Criminal convictions to impeach a Witness
A
CALIFORNIA (using criminal convictions to impeach a witness)
In civil cases
- Admits ANY felony (that hasn’t been pardoned)
- No time limits
- NO misdemeanors! (even if lie-based)
In criminal cases
- Only admits DISHONESTY felony
- BUT the conviction should be excluded if it is for the same conduct for which the witness is on trial.
- Considerations
- Exclude conviction when its introduction would deter the witness from taking the stand.
- If D has many convictions, some could be excluded for prejudice
19
Q
Impeachment
608: Reputation or Opinion Evidence of Untruthful Character
Direct Exam
A
- Allows one witness to offer testimony about another witness’s character for truthfulness or untruthfulness
- 3 limits
- Evidence must be in the form of reputation or opinion only
- Cannot elicit specific examples of untruthfulness on DIRECT EXAM
- extrinsic evidence is not admissible to prove specific instances of a witness’s conduct
- Cannot elicit specific examples of untruthfulness on DIRECT EXAM
- The evidence must relate to the witness’s character for truthfulness or untruthfulness
- Testimony about a witness’s character for truthfulness can only be elicited after his character has been attacked
- Evidence must be in the form of reputation or opinion only
- Examining the witness
- Must first lay the foundation that the witness knows the fact witness
- Then “What is your opinion of their truthfulness?”
- Don’t get to go into details on direct
20
Q
Impeachment
608: Reputation or Opinion Evidence of Untruthful Character
Cross-Examining the Character Witness
A
- Allows parties to ask character witnesses on cross-examination about specific incidents of a fact witness’s behavior.
- Cross-examiner must have a good faith belief for believing that the specific acts occurred
- The trial judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their probative value
- No extrinsic evidence of specific conduct
21
Q
Impeachment
Ways to show untruthful character
A
- 608(b): Cross-examine about untruthful acts
- 609: Introduce evidence of prior conviction
- 608(a): Offer reputation or opinion testimony about untruthful character
22
Q
Impeachement for untruthful character
A
- Can cross-examine on specific acts
- About truthfulness or untruthfulness only
- Must accept the witness’s response
CALIFORNIA
- civil cases- can’t do this at all!
- criminal- can also introduce extrinsic evidence
23
Q
A witness may always be impeached by extrinsic evidence of….
A
…bias or interest, provided a proper foundation is laid.
24
Q
Bolstering
A
- Attempt to strengthen a witness’s credibility before it has been attacked
- Generally prohibited.
- Exception:
- prior identification of a person (in the courtroom or in a lineup)
- Exception:
- Generally prohibited.
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Impeachment methods
* 1. Prior inconsistent statements
* 2. Bias, interest, or motive to misrepresent
* 3. Sensory deficiencies
* 4. Bad reputation for truthfulness
* 5. Criminal convictions
* 6. Bad acts
* 7. Contradiction
* 2 questions (for each method)
1. Can the impeaching fact be proven with extrinsic evidence?
2. If yes, Must I first confront the witness with the impeaching fact before I prove it with extrinsic evidence?
