Impeachment Flashcards
A witness testified against a defendant in a contract action. The defendant then called the witness’s neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness’s employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago.
Is the employee’s testimony admissible?
The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted. A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it. (A) is incorrect because there is no specific rule limiting cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing evidence that the witness was convicted of a crime if the conviction required proof or admission of an act of dishonesty or false statements, or if the crime was a felony. However, the prior conviction will generally not be admitted if more than 10 years have passed since the date of conviction or release from confinement, whichever is the later date (although the judge has discretion to admit older convictions in extraordinary circumstances). Here the witness was convicted 20 years ago and the conviction is likely too remote. Additionally, the defendant did not attempt to introduce evidence of the witness’s conviction; the proposed testimony only concerns the commission of the misconduct. (D) is incorrect because even though a hoax would impair a witness’s credibility, it cannot be proven by extrinsic evidence, as discussed above.
The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, “Isn’t it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?” The waiter responded, “Yes, but I wasn’t trying to steal anything. I just forgot to charge them.” The defense then asked, “Isn’t it a fact that last month you threw a rock through the plate glass window at the restaurant?” The waiter replied, “That’s not true; I was there but I didn’t throw the rock.” The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant’s window.
Assuming that there have been no criminal charges filed as a result of the broken window, is the witness’s testimony admissible?
The witness’s testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant’s window, because such evidence would help establish the waiter’s bias against the restaurant. (A) is incorrect for two reasons: Federal Rule 608 provides that, if offered to impeach, prior bad acts may not be proved through extrinsic evidence but may be inquired into during cross-examination. Furthermore, if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible. (B) is incorrect as well for this latter reason. (D) is too broad a statement. In a broad sense, the evidence is offered to impeach the credibility of the waiter and to suggest to the jury that he may be lying under oath. However, the defense does not need to establish that the waiter lied; the reason the evidence is relevant and does not constitute impeachment on a collateral matter is because it is offered to show bias, making (C) the better answer.
A defendant on trial for robbery took the stand in his own defense and testified that the robber was his neighbor. The jury acquitted the defendant based on this testimony. The neighbor was then indicted and brought to trial for the robbery. At that trial the prosecution called the defendant from the first trial to the stand, expecting him to incriminate the neighbor. Surprisingly, the defendant testified: “My neighbor didn’t have anything to do with that robbery, but I know who did! I committed the robbery myself.” When asked about the testimony he gave at his own trial, the defendant insisted he didn’t remember anything about it.
Finding her case in shambles, the prosecutor calls a juror from the first trial to the stand as a witness, who is prepared to testify that the defendant said at the first trial that the neighbor committed the robbery.
On objection by the defense, should the court admit the juror’s testimony?
The juror’s testimony is admissible to impeach the first defendant’s credibility and as substantive evidence of the neighbor’s guilt. As long as the witness is given an opportunity to explain or deny the statement, extrinsic proof of a prior inconsistent statement is admissible to impeach the witness’s testimony. If the witness is subject to cross-examination and the prior inconsistent statement was made under penalty of perjury at a prior trial or proceeding, or in a deposition, it is admissible nonhearsay; i.e., it is admissible as substantive evidence. A witness is generally “subject to cross-examination” if he responds willingly to questions (even if he claims a lack of memory). In this case, the prior inconsistent statement was made under oath at the first defendant’s trial and thus is admissible for its substance as well as for impeachment. (A) is incorrect because, as discussed above, the juror’s testimony is admissible as substantive evidence of the neighbor’s guilt. (C) is incorrect because jurors are incompetent to testify only (i) before the jury on which they are sitting, and (ii) in post-verdict proceedings as to certain matters occurring during jury deliberations. Since the juror is not testifying before the jury on which she was sitting and is not testifying about jury deliberations, she is a competent witness. (D) is incorrect because the best evidence rule does not apply to this situation. The juror is not being called to prove the terms of a writing or to testify about knowledge she gained from reading a writing. The facts she is testifying to exist independently of any writing; thus, the best evidence rule does not apply.
