Impeachment and Rehabilitation

Question 1

What is impeachment evidence?

Answer 1

• Evidence which detracts from a witness’s credibility— it suggests that a witness should not be believed because the witness is a liar, is lying in this testimony, or is mistaken for any number of reasons.

Question 2

What is the relevancy test for impeachment evidence?

Answer 2

• Impeachment evidence is ALWAYS relevant, even if beyond the scope of the direct examination.

Question 3

Who may attack the credibility of a witness?

Answer 3

• The credibility of a witness may be attacked by any party, including the party calling the witness (Rule 607).

Question 4

What is rehabilitation?

Answer 4

• After a witness is impeached, evidence which detracts from the impeachment is admissible.

Question 5

What is the bolstering rule?

Answer 5

• Evidence used to enhance or “bolster” a witness’s credibility is NOT admissible until after the witness has been impeached.

Question 6

What is collateral evidence?

Answer 6

• A collateral matter is evidence solely affecting the credibility of a witness; it’s otherwise irrelevant to the cause of action or defense.

Question 7

What are the limits of collateral evidence?

Answer 7

• While impeaching on a collateral matter, the cross-examiner is bound by the witness’s answer.
• It often precludes the cross-examiner from offering extrinsic evidence - calling other witnesses or producing documentary or other contradictory/impeaching evidence - to prove up the impeachment value of the collateral matter.
  o EXAMPLE: An eyewitness to an auto tort testified on direct examination, “I am employed as a nuclear physicist.” On cross-examination, the witness is asked, “Isn’t it true you are in fact the local dogcatcher, not a nuclear physicist?” If the witness denies that is true, even if the cross examiner has documents and/or other witnesses to prove the witness is in fact the local dogcatcher and not a nuclear physicist, because whether the witness is a dogcatcher or nuclear physicist is collateral to the trial, meaning irrelevant but for its impeachment value, the extrinsic evidence to prove the witness is the dogcatcher is not admissible.

Question 8

Why is extrinsic evidence typically excluded when impeaching on a collateral matter?

Answer 8

• Because of the danger that it will throw the trial off topic and require a mini-trial on the collateral matter

Question 9

What are the seven methods of impeachment?

Answer 9

• Bias or motive
• Sensory incapacity
• Prior inconsistent statement
• Character evidence by reputation or opinion
• Character evidence by prior bad acts
• Prior conviction of crime
• Contradiction

Question 10

What are the three methods of rehabilitation?

Answer 10

• Explain or deny.
• Prior Consistent Statement.
• Character evidence for truthfulness by reputation or opinion.

Question 11

What are examples of impeaching a witness for bias or motive?

Answer 11

• Personal or family hostility or relationship.
• Business relationship.
• Confidential Informant.
• Fee arrangement (e.g., fee paid to an expert or an informant).

Question 12

May extrinsic evidence be admitted to impeach a witness over bias or motive?

Answer 12

• Yes, extrinsic evidence is admissible to impeach over bias or motive

Question 13

How would a party impeach a witness over their sensory incapacity?

Answer 13

• Suggest their inability to observe, communicate, or remember.

Question 14

May extrinsic evidence be admitted to impeach a witness over sensory incapacity?

Answer 14

• Yes, extrinsic evidence is admissible to impeach over sensory incapacity

Question 15

In which cases may a party impeach a witness for a prior conviction?

Answer 15

• Applies in both civil and criminal cases; applies to all witnesses.

Question 16

How old may the conviction be to use for impeachment purposes?

Answer 16

• Convictions more than 10 years old are generally inadmissible

Question 17

What must a party do to impeach a witness over a conviction that is greater than ten years old?

Answer 17

• The probative value must SUBSTANTIALLY outweigh the prejudicial effect, and
• the proponent must give notice to the opponent

Question 18

How are the ten years measured to determine whether a conviction is admissible?

Answer 18

• 10 years measured from the:
  o date of the conviction (if the defendant received no jail time); or
  o date of release from confinement, whichever is later (i.e., more recent).
• EXAMPLE: A grand theft case is being prosecuted in 2019. The witness was previously convicted of felony forgery that occurred in 2008, so the conviction is over 10 years old. If the witness was convicted in 2008 and served three years in prison, the witness would have been released in 2011. That release date would be the date from which the 10 years is measured. Therefore, the conviction would be admissible because only eight years have passed.

Question 19

Are juvenile adjudications admissible to impeach?

Answer 19

• Juvenile adjudications are generally inadmissible to impeach the accused.
• For all other witnesses, however, their use is discretionary.

Question 20

May convictions that are still under appeal admissible to impeach?

Answer 20

• A conviction under appeal is admissible, but evidence that the conviction is under appeal is also admissible.

Question 21

Are convictions that have been pardoned admissible?

Answer 21

• If a defendant has been pardoned from a conviction, it is no longer admissible to impeach.

Question 22

Are arrest records, indictments, and other charges admissible to impeach?

Answer 22

• Arrest records, indictments, and other charges are inadmissible under Rule 609.

Question 23

Are guilty pleas admissible to impeach?

Answer 23

• Guilty pleas are convictions and admissible to impeach.

Question 24

What are the two general types of crimes admissible for impeachment?

Answer 24

• Felonies under ten years old
• Crimes involving dishonesty

Question 25

What is the general rule about admitting convictions that are ten years old or less?

Answer 25

• A prior conviction that is ten years old or less MUST generally be admitted. In other words, admission is MANDATORY.

Question 26

Are felony convictions always subject to the Rule 403 balancing test if used for impeachment purposes?

Answer 26

• Not always. There are different rules that apply depending on whether the accused is being impeached or just some other witness

Question 27

What is the standard for admitting a prior felony conviction to impeach the accused criminal defendant?

Answer 27

• Generally, it is mandatory to impeach a criminal defendant over a prior conviction that is ten years old or less.
• However, the conviction may be excluded if the prejudicial effect SIMPLY outweighs its probative value (this is distinct from the 403 standard, so it slightly favors EXCLUSION)

Question 28

What is the standard for admitting a prior felony conviction to impeach a witness other than an accused criminal defendant?

Answer 28

• Generally, it is mandatory to impeach a witness over a prior conviction that is ten years old or less.
• However, the conviction may be excluded only if the prejudicial effect SUBSTANTIALLY its probative value (this is the Rule 403 standard, which favors ADMISSION)

Question 29

Must a crime of dishonesty be a felony in order to impeach a witness?

Answer 29

• Crimes involving dishonesty or false statement include both felonies and misdemeanors.

Question 30

What are some examples of admissible crimes of dishonesty?

Answer 30

• perjury;
• forgery;
• theft specifically involving a lie (e.g., larceny by trick, false pretenses, or embezzlement);
• criminal fraud; and
• any crime involving some element of deceit, untruthfulness, or falsification.

Question 31

What are some examples of crimes that do not count as crimes of dishonesty?

Answer 31

• assault/battery;
• prostitution;
• DUI;
• possession of drugs; and
• theft in general, not involving a lie.

Question 32

How is the admission of a prior inconsistent statement limited?

Answer 32

• When a PINS is offered solely for impeachment, the PINS is NOT admissible substantively (meaning to be believed) and cannot be used for any purpose other than the impact on the witness’s credibility.
  o EXAMPLE: The victim (V), the sole prosecution witness in an armed robbery case testifies, “Defendant (D) stole my purse, but had no weapon.” The prosecutor asks, “Didn’t you tell the police D used a gun?” V replies, “Yes, I said that.” If admissible as substantive evidence (which it’s not), this is evidence that the robbery was committed with a weapon, an element of armed robbery. If not admissible as substantive evidence, it can be used by the TOF only to determine if V is believable, and D can be convicted of simple robbery but not armed robbery because there is no substantive evidence that a weapon was used in the robbery.

Question 33

What does it mean for a prior statement to be “inconsistent”?

Answer 33

• The prior statement must be inconsistent with the in-court testimony. Inconsistency may be found by
  o express contradiction,
  o omission, or
  o feigned lack of memory.

Question 34

What are some examples of potential prior inconsistent statements?

Answer 34

• EXAMPLE: Plaintiff’s witness (PW) in an auto tort case testifies, “I saw Defendant (D) run the red light causing the accident.” On cross-examination, defense attorney asks, “Didn’t you tell my investigator and sign a statement saying you didn’t see who caused the accident?” This is proper impeachment by PINS.
• EXAMPLE: Prosecutor’s witness (PW) in an assault case testifies, “I saw the person who hit the victim. He was 6’ tall, bald, and had a large star tattoo on his forehead.” On cross-examination, defense attorney asks, “Isn’t it true that when you described the assailant to the police, you never mentioned a tattoo?” This is proper impeachment by PINS.
• EXAMPLE: When asked, prosecutor’s witness (PW) claims not to recall how she got the black eye in an assault case. The Court, upon request by the prosecutor finds PW’s claimed inability to remember to be lacking credibility. The prosecutor then asks PW, “Isn’t it true that you told the police that your boyfriend hit you?” This is proper impeachment by PINS.

Question 35

What must the proponent do when admitting a prior inconsistent statement for impeachment?

Answer 35

• On request, proponent must show a written/recorded PINS to the opponent.

Question 36

May extrinsic evidence be admitted to impeach a witness over a PINS?

Answer 36

• Yes, extrinsic evidence of the PINS may be used to impeach

Question 37

Must extrinsic evidence of a PINS be the written PINS itself?

Answer 37

• Extrinsic evidence of the PINS may be a witness to the PINS or a written PINS.

Question 38

When would the proponent be allowed to bring in a witness to show PINS?

Answer 38

• The witness’s testimony about PINS is only admissible if:
  o Witness is given a chance to explain or deny the PINS at some point; no specific sequencing required, and
  o an adverse party is given an opportunity to examine the witness about the PINS, or
  o if justice so requires.

Question 39

When would the court be allowed to exclude extrinsic evidence of the PINS?

Answer 39

• Witness admits making the PINS (because the witness admitted making the PINS, there’s no need for the extrinsic evidence); or
• It involves a collateral matter - meaning a matter that would not be relevant to the trial, except to impeach the witness.

Question 40

What are some examples of extrinsic evidence of PINS being introduced or not?

Answer 40

• EXAMPLE. Plaintiff’s witness (PW) in an auto tort case testifies, “I saw Defendant (D) run the red light causing the accident.” On cross-examination, defense attorney asks, “Didn’t you tell my investigator and sign a statement saying you didn’t see who caused the accident?” If PW denies, equivocates, or feigns a lack of memory about making the PINS, the defense attorney may introduce, once properly authenticated, PW’s signed statement, and/or in the defense case, call the investigator to “prove up” what PW said. However, if PW admits making the PINS, but says he said that because he was confused, the court may exclude the extrinsic evidence. Note the PINS is NOT collateral because it goes to causation, an element in the case.
• EXAMPLE. Continuing the above example, Plaintiff’s witness (PW) also testifies, “I have a PhD from MIT.” On cross-examination, defense attorney asks, “Didn’t you tell my investigator and sign a statement saying you only went to the 11th grade?” If PW denies making that PINS, the defense is “stuck with the answer” and cannot introduce extrinsic evidence - PW’s signed statement nor call the investigator to “prove up” what PW said; both are extrinsic evidence of impeachment by PINS on a collateral matter. The question was proper but extrinsic evidence would not be allowed.

Question 41

What is impeachment by contradiction, and how is it different from PINS?

Answer 41

• A witness can always be impeached with evidence that contradicts the witness’s testimony. This is similar to PINS, except it is not the witness’s own statement that contradicts the witness. Rather it’s other evidence or witnesses who contradict the witness’s testimony.

Question 42

May extrinsic evidence be admitted to impeach a witness over a contradiction?

Answer 42

• Extrinsic evidence of the contradiction is permitted unless it involves a collateral matter.

Question 43

What is an example of impeachment by contradiction?

Answer 43

• EXAMPLE: In a burglary prosecution where the defendant (D) claims permission to have entered the dwelling, the homeowner (HO) testifies, “I have a PhD from MIT,” and later testifies, “I’ve never seen the defendant before.” On cross-examination, defense counsel can impeach HO with a photo of HO and D together in HO’s home (extrinsic evidence permitted as this is not collateral because it bears on whether D had permission). Further, defense counsel asks HO, “Isn’t it true you have a B.S. from Podunk University and never went to MIT?,” and HO says, “No.” A letter confirming HO’s B.S. from Podunk U and another from MIT denying HO ever attended school there would be inadmissible as extrinsic evidence of impeachment on a collateral matter.

Question 44

Are religious beliefs admissible to impeach a witness (Rule 610)?

Answer 44

• Evidence of a witness’s religious beliefs are inadmissible to impeach or rehabilitate credibility.
  o EXAMPLE: Improper to impeach a witness by asking if they are an atheist.
  o EXAMPLE: Proper to impeach someone based on their religious affiliation as potential bias. While asking if they have religion is improper but probing whether their affiliation makes them less likely to tell the truth when a fellow member is on trial IS proper, as impeachment by bias

Question 45

Extrinsic evidence is ALWAYS allowed for which methods of impeachment?

Answer 45

• Bias or motive
• Sensory incapacity
• Reputation or opinion evidence
• Prior convictions

Question 46

Extrinsic evidence is NEVER allowed for which method of impeachment?

Answer 46

• Character evidence through prior bad acts (other than convictions)

Question 47

Under which methods of impeachment is extrinsic evidence generally allowed unless it involves a collateral matter?

Answer 47

• PINS
• Contradiction