Impeachment Flashcards
What is the definition of impeachment?
impeachment means the casting of an adverse reflection on the veracity of the witness.
What are the methods of impeachment?
1) cross examination - by eliciting facts from the witness that discredit his own testimony
2) extrinsic evidence - by calling other witnesses or introducing documents that prove the impeaching facts
Prior inconsistent Statements
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
How do you build a foundation of extrinsic evidence to impeach based on prior inconsistent statements?
extrinsic evidence can be introduced to prove prior inconsistent statement only if: i) the witness is, at some point, given an opportunity to explain or deny the statement, and ii) the adverse party is at some point given an opportunity to examine the witness about the statement.
What are the exceptions to the foundation requirement?
1) if prior inconsistent statements were made by an opposing party
2) an inconsistent statement by a hearsay declarant
3) may be dispensed with where justice so requires.
Bias or Interest
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. Must first be asked about facts of bias on cross examination.
Conviction of a crime
A witness may be impeached by proof of a conviction (arrest or indictment is not sufficient) for certain crimes.
What types of crimes can be used for impeachment purposes?
any crime involving dishonesty or false statement. the court has no discretion to bar impeachment by these crimes. (ex. perjury, false statement, criminal fraud, embezzlement, false pretense).
What if it is a felony not involving dishonesty or false statement?
A witness may be impeached by a felony that does not involve dishonesty or false statement, but the court has discretion to exclude it if:
1) the witness being impeached is a criminal defendant and the prosecution has not shown that the conviction’s probative value outweighs its prejudicial effect or
2) in the case of all other witnesses, the court determines that the convictions probative value is substantially outweighed by its prejudicial effect
Is a conviction 10 years ago admissable?
no unless extraordinary circumstances and the probative value substantially outweighs its prejudicial effect, and the proponent gives the adverse party reasonable written notice of their intent to use it.
What about juvenile convictions?
generally no. not unless the evidence is necessary to a determination of the accused’s guilt or innocence.
Constitutionally defective conviction?
Invalid
What if the witness was pardoned?
no if the pardon is based on innocence or the person pardoned has not been convicted of a subsequent felony.
Specific Instances of Bad conduct
a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative in its truthfulness. However, the cross-examiner must inquire in good faith. EXTRINSIC EVIDENCE IS NOT PERMITTED!
Is a arrest itself a bad act?
No
Opinion or reputation evidence of Untruthfulness
A witness may be impeached by showing that he has a poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community where the witness resides.
Sensory deficiencies
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence that his perception or recollection is so impaired as to make it doubtful that he could have perceived those facts.
Contradictory facts
Extrinsic evidence of contradictory facts to impeach is permitted where 1) the witness’s testimony on a particular fact is a material issue in the case, 2) the testimony on a particular fact is significant on the issue of credibility, or 3) the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence.
Impeachment on a collateral matter
Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by inconsistent statement
Impeachment of hearsay declarant
the credibility of someone who does not testify but whose out of court statement is introduced at trial may be attacked by evidence that would be admissible if the declarant testified as a witness. The declarant need not be given the opportunity to explain or deny a prior inconsistent statement.
What is rehabilitation?
A witness who has been impeached may be rehabilitated by either explanation on redirect, good reputation for truthfulness, or prior consistent statement.
How can you rehabilitate a witness through good reputation for truthfulness?
when a witness’s character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truthfulness if impeached witness or to give their opinions as to the truthfulness of the impeached witness.
In what situations can you rehabilitate a witness by showing prior consistent statements?
1) if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence. 2) if the witness’s testimony is impeached on some different ground such as inconsistency of a sensory deficiency, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility/ also admissible as substantive evidence.
