Impeachment and Rehabilitation Flashcards
Witness Impeachment
There are seven ways to impeach a witness
(1) Prior inconsistent statement
(2) Bias and Interest
(3) Conviction of Crime
(4) Specific instances of conduct
(5) Reputation or Opinion for Untruthfulness
(6) Sensory deficiencies
(7) Contradiction
(1) Prior Inconsistent Statements
(i) If a party makeds a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment. It can also be used as substantive evidence too if it falls into a “nonhearsay” exception.
(ii) Extrinsic evidence may be used only if the witness is given an opportunity to explain or deny the statement at some point. This does not apply:
(1) When the witness is the opposing party
(2) When the witness is not in court at all
(3) When the interests of justice requires (a witness left the stand, the statement was discovered, and the witness is now unavailable).
(2) Bias and Interest
(i) If a witness is a family member, friend, enemy, paid by the party, or granted immunity, then that can be used to suggest the witness has motive to lie.
(ii) The witness must be confronted with the alleged bias while she is on the stand.
(iii) Extrinsic evidence may only be used only after witness is asked about bias first.
(3) Convictions that can be used
(1) Convictions of crimes (FY or Misdemeanors) of dishonesty
(2) Conviction of any felony
(3) The Ten Year Rule
(4) Other Matters Related to Convictions
(5) Michigan Rule
(1) Convictions of Crimes of Dishonesty
(FYs and Misdemeanors)
Look at the elements of the crime NOT the facts
These are convictions of any crime as to which the prosecution is required to prove an act of dishonesty or false statement as an element of the crime.
(i) This crime can be a FY or Misdemeanor
(ii) It is automatically admissible. The trial court does not have any discretion to disallow such convictions (however, they are subject to 10 yr rule)
Qualifies - Income tax fraud, embezzlement, perjury.
Does not Qualify - Shopplifting, Robery
(2) Conviction of any Felony
(a) A felony is crime punishible by prison for more than year or death.
(b) However, the court may exclude the FY conviction from evidence if it doesn’t meet the defendant-friendly “balancing test” below:
(i) When the witness is the defendant: The prosecution has to show the probative value outweighs its prejudicial effect to the defendant.
(ii) When the witness is NOT the defendant: The court has discretion to exclude it if the probative value is substantially outweighed by the danger of unfair prej.
(3) The “10 Year Rule”
If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is generally not admissible.
(4) Other Matters Related to Convictions
Conviction Required: arrest/indictment does not suffice.
Pendency of an appeal: A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Pardon from conviction: If a defendant has been pardoned because he was found innocent, the conviction is no longer admissible to impeach.
Method of Proof: Extrinsic evidence is permitted. Ask the witness to admit it or introduce the record (no confession required)
(5) Michigan Rules
The following convictions can be admitted for impeachment:
(i) Crimes that require proof of dishonesty or false statements; or
(ii) FY convictions for theft crimes (robbery, larceny)
(1) The theft FY must have significant probative value
- the age of the conviction
- the extent to which the crime is indicative of veracity (truth-telling)
(2) When the witness is the criminal defendant, the court will only admit the conviction if it finds that the probative value of the evidence outweighs its prejudicial effect based on:
- The similarity of the prior conviction to the charged offense.
- The possibility that the admission of the prior FY will cause the def to elect not to testify.
(iii) Ten year rule applies to MI too.
(4) Specific Instances of Conduct
“Bad Acts” that are probative of truthfulness
(i) On cross, a party may inquire into specific acts of misconduct if they are probative of the character for truthfulness or untruthfulness. (e.g. filing false tax return, forgery, lying about age, it must relate to truthfulness).
(ii) The prosecution must ask in good faith.
(iii) The bad act cannot be too remote in time.
(iv) Extrinsic evidence is not admissible to prove specific instances of misconduct.
Charge or arrested is not a bad act, its just an accusation
(5) Reputation or Opinion for Untruthfulness
(i) A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or if, in the character witness’s opinion, the witness in question does not have a truthful character.
(1) The witness is considered extrinsic evidence.
(2) The witness cannot testify as to specific facts.
(ii) Confrontation is not required.
(6) Sensory Deficiencies:
Ability to observe, remember, or relate accurately
(i) Anything that concerns the witness’s perception or memory can be used to suggest the witness is mistaken
Examples - Color blind, deaf, bad memory, mental disorder, bad hearing.
(ii) Confrontation is not required
(iii) Extrinsic evidence is allowed
(7) Contradiction
A witness may be impeached during cross examination if he or she made a mistake about or lied about anything she said during direct examination.
(1) If the witness admits her mistake, she has been impeached.
(2) If she does not admit her mistake, extrinsic evidence may be used to prove that she contradicted herself as long as the fact at issue is not a collateral fact.
Note on Extrinsic Evidence
Extrinsic Evidence may be used to prove all of the impeachment methods except bad acts and collateral contradictory facts.
Rehabilitation of Impeached Witness
Evidence of truthful character is admissible only after the witness’s truthfulness is attacked.
