Impeachment Flashcards
T/F: A party can impeach its own witness under the Federal Rules.
True. This usually happens when there’s undue surprise.
P calls W1 to the stand. W1 testifies that she saw D’s car run the red light. Defense counsel states that she has no questions for the witness. After W1 steps down, P calls W2 who testifies, “W1 has a good reputation for truthfulness.”
Objectionable?
Yes. This is impermissible bolstering. Bolstering is not allowed until after witness’s credibility has been attacked (and that’s rehabilitation).
P calls W1 to the stand. W1 testifies that she saw D’s car run the red light and “I told everyone at work the next day that I had seen D run the red light.”
Objectionable?
Yes. This is impermissible bolstering with minimal probative value and is hearsay.
If previous prior inconsistent statements under oath, these statements are:
admissible substantively + to impeach
If previous prior inconsistent statements are not sworn, these statements are:
only admissible to impeach
How can you prove a prior inconsistent statement with extrinsic evidence?
To prove a prior inconsistent statement by extrinsic evidence, the statement must be relevant to the case (cannot be a collateral matter), witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement.
Exceptions: if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.
Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness’s prior inconsistent statement made at a deposition is:
A testifying witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions).
T/F: The witness’s prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay if the declarant is now testifying and subject to cross-examination.
True.
What is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?
The credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached.
Declarant’s credibility can be rehabilitated after.
A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive knowing that he had a drinking problem and convictions for drunk driving. The driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman’s car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident.
Will this evidence be permitted?
The evidence will be permitted to impeach and as substantive evidence.
There was a prior inconsistent statement (material) and it was made under oath in a deposition. This makes it admissible as substantive evidence of the facts asserted.
P sued D for injuries suffered when the defendant’s car struck P as she was crossing a busy intersection. P planned to have a bystander who had witnessed the accident testify on her behalf, but he died prior to trial. At trial, P called the wife of the bystander to testify that, although she had been facing the other way, she had heard her husband exclaim, “My God, the woman was crossing on the green light!” Over objection, the statement was admitted as an excited utterance. D now wishes to call the bystander’s friend, who is prepared to testify that, a few hours after the accident, the bystander said to him: “You know that accident I saw this afternoon? The driver didn’t run a red light. The light was yellow.”
Should the friend’s testimony be admitted over the P’s objection?
The friend’s testimony is admissible only to challenge the credibility of the bystander’s earlier inconsistent statement. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, statements of a hearsay declarant can be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes.
Here, the bystander’s hearsay statement (which was admissible as an excited utterance) was testified to by his wife. His subsequent statement to his friend is inconsistent with his hearsay statement and is therefore admissible to discredit that statement.
A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant’s attorney called the clerk’s employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him.
How should the trial judge rule on the admissibility of this testimony?
The testimony should be found inadmissible. Extrinsic evidence of a prior inconsistent statement may NOT be used to impeach a witness upon a collateral matter. The clerk testified that he could recognize the defendant’s face, and so the color of the gun is not material to any issue in the case under the facts given.
The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.
If the employee’s letter to his friend is properly authenticated, should the court admit the letter?
The letter is admissible as substantive evidence and for impeachment purposes.
There was a prior inconsistent (material) statement made under oath. The employee was asked about a prior inconsistent statement and denied having made the statement. Therefore, the making of the statement may be proved by extrinsic evidence. Here, the plaintiff’s employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home.
Further, a statement of a declarant’s then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. The employee’s statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence.
