Impeachment and Testimonial Evidence

Question 1

Effect of impeachment:

Answer 1

Impeachment casts an adverse reflection on the veracity of W’s testimony

Any party may impeach any W

Question 2

Methods of impeachment

Answer 2

1. Contradiction
2. Prior inconsistent statement (PIS)
3. Bias or interest
4. Sensory deficiencies (E.g., W’s senses were incapable of producing the perceptions to which W testified)
5. Reputation and/or opinion of untruthfulness (Admissible to impeach W’s veracity by use of extrinsic evidence)
6. Prior acts of misconduct (Extrinsic evidence is prohibited)
7. Prior criminal conviction

Question 3

Can you use evidence supporting witness credibility?

Answer 3

Inadmissible unless credibility has been attacked (i.e., W has been impeached)

• Exception - W’s prior consistent statement is admissible if the statement was made before W had a motive to fabricate

Question 4

What is extrinsic evidence?

Answer 4

Any evidence other than W’s testimony at the current proceeding

• Includes evidence of out-of-court prior inconsistent statements

Question 5

What is a collateral matter?

Answer 5

A fact not material to issues in the case

• Says nothing about W’s credibility; only used to contradict W (e.g. W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress -this is collateral (i.e., not material) to the issue of what W1 saw)
• Test - to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?
  
  • If not, it is likely collateral

Question 6

When can you use extrinsic evidence?

Answer 6

Extrinsic evidence may not be used to impeach a W on collateral matters

Extrinsic evidence is admissible on non­ collateral matters and for non-impeachment purposes (e.g., to show bias)

Question 7

How do you impeach someone with a contradiction?

Answer 7

Any evidence may be used to show W has made contradictory statements on material issues, which means that if the contradiction is on a collateral thing is not possible to use extrinsic evidence.

Extrinsic evidence allowed?: No, unless non-collateral

Confrontation required?: Yes

Question 8

How do you impeach someone with a PIS (prior inconsistent statement)

Answer 8

Impeachment by showing that W made material statement inconsistent with testimony.

It may establish trough cross-exam

Extrinsic evidence allowed?: YES, unless collateral matter

Opportunity to defend: yes, but timing for confrontation is flexible. Not required if opposing party or hearsay declarant

Question 9

What are the effects of impeaching someone with a PIS?

Answer 9

If declarant gave statement:

• Without oath or hearsay: only impeachment (unless opposing party)
• Oath: Impeachment and Substantive Evidence

Question 10

PIS admissibility

Answer 10

if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)

• I.e., a hearsay PIS may only be considered for its bearing on W’s credibility
• If the PIS is not hearsay or it falls under a hearsay exemption/ exception, it may be considered for any purpose

Question 11

how do you Impeach by establishing bias?

Answer 11

By showing anything that will give the witness a motive to falsify or slant the testimony. Typical bias: Friend, relative, someone paid by the party, prior grudge. Settlement beneficiary

Cross exam?: Yes

Extrinsic evidence: Yes

Confrontation required?: Yes, W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny

Question 12

How do you Impeach by prior instances of misconduct?

Answer 12

W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit)

• An arrest is not the same as misconduct - must be an act of lying
• Extrinsic: No extrinsic evidence permitted - W may only be asked about prior misconduct; questioning attorney must accept W’s answer
• Confrontation required?: YES, only good way of doing it

Question 13

How do you Impeach by an opinion or reputation for untruthfulness

Answer 13

W may be impeached by testimony describing his reputation for untruthfulness in the community. Character evidence is used nothing specific

Extrinsic: Yes, only way of doing so (another W)

Confrontation: Not needed, but the W can admit it in cross-e

Question 14

Three types of Impeachment by prior conviction, what are they?

Answer 14

• Prior conviction
• Prior conviction involving act of dishonesty
• Convictions more than 10 years old (felonies & misdemeanors)

Question 15

Impeachment by prior conviction (no dishonesty)

Answer 15

Felonies not involving dishonesty/false statements:

• If W is the D -admissible if govt. shows probative value outweighs prejudicial effect.
• If W is non-D - admissible but court can exclude under 403 balancing (prejudice outweighs probative value)

Misdemeanors: inadmissible unless it involves dishonesty/ false statements

Question 16

Impeachment by prior conviction w act of dishonesty

Answer 16

Always admissible - court has no discretion to exclude under 403 (rare exception to 403)

Always admissible when felonies and misdemeanors are related to dishonesty (e.g. perjury, fraud)

Question 17

What is an act of dishonesty for impeachment purposes?

Answer 17

Acts of dishonesty - prior conviction required proof or admission of an act of dishonesty or false statement (e.g., perjury, fraud)

Question 18

Impeachment by prior conviction more than 10y

Answer 18

Not admissible, unless: Probative value substantially outweighs unfair prejudice (inverse of 403 balancing) and adverse party is given notice

Determining 10-year date - more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later

Question 19

Standards for the exclusion of evidence:

Answer 19

• Rule 403: Probative Value must not be substantially outweighed by Risk of unfair prejudice”, Probative Value <<< UNFAIR PREJUDICE
• Rule of exclusion for prior crimes impeachment, when W is not D: Rule 403
• Rule of exclusion for prior crimes impeachment if the W is D “Prosecution must show that Probative value outweighs risk of unfair prejudice” PROB. VALUE > Unfair Prejudice
• Rule for Admission for 10y+ crimes: Old crimes are not admissible, Reverse 403 “Unless the probative value substantially outweighs unfair prejudice” PROBATIVE VALUE >>> Unfair Prejudice

Question 20

How do you rehabilitate an impeached witness

Answer 20

Prior consistent statements are a method of rehabilitation.

However, it only works when he has been impeached by an argument about the W exaggerating or lying by invoking a motive to do so (bias). A prior consistent statement will show that he didn’t have a motive to lie

It also works for defending an impeachment based on credibility (inconsistency or sensory deficiency), counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility.

However this won’t work for prior criminal convictions or acts of misconduct impeachment

Question 21

Can you impeach/rehabilitate someone that is not available?

Answer 21

Yes, There is no requirement that a declarant must be present at trial to be impeached.

Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply.

Furthermore, where the declarant’s credibility is impeached, it may also be rehabilitated.

Question 22

Witness competency standard

Answer 22

Testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability

• Witnesses are generally presumed to be competent

Question 23

What are the competency qualifications of a witness?

Answer 23

Competency qualifications - to be competent, W must have:

1. Personal knowledge - W’s testimony must be based on her own perceptions (e.g., what W saw or heard)
2. Memory- W must have the ability to remember (e.g., must not have amnesia)
3. Communication- W must be able to relay her perceptions, either directly or through an interpreter
4. Sincerity - W must take an oath or affirm to tell the truth

Diminution of any of the above capacities usually goes only to the weight of testimony (i.e., makes W less persuasive)

Question 24

Use of documents by W to refresh recollection

Answer 24

W is allowed to use of documents to refresh memory during testimony

• Anything can be used to refresh W’s memory
• W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
• Opponent may inspect and offer into evidence anything used to refresh W’s memory
• Document is not read into evidence (distinguish from recorded recollection)

Question 25

Recorded recollection of documents by W

Answer 25

Contents of a document W previously wrote or adopted is read into evidence

Requirements:

1. W once had personal knowledge of facts comprising the recorded recollection;
2. Document was written or adopted by W;
3. W wrote or adopted the document when its contents were fresh in W’s memory;
4. W’s memory is insufficient to testify as to the document’s contents (i.e., present recollection refreshed was ineffective); and
5. Document was accurate at the time it was made

Question 26

Fundamental difference between “present recollection refreshed” and “Recorded recollection”

Answer 26

Present recollection refreshed: Document is not read into evidence (distinguish from recorded recollection)

Recorded recollection: Document is introduced as evidence: is a hearsay exception; as such it may be admitted into evidence (distinguish from present recollection refreshed)

Question 27

List the form of objections to form of question

Answer 27

Question objection:

1. Calls for narrative - non-specific, open-ended question that allows W to tell a story rather than give specific testimony in response to specifically asked questions
2. Leading - question itself suggests the answer; improper on direct unless W is hostile or an adverse party; acceptable on cross-exam
3. Assumes facts not in evidence - question makes an assumption which has not been established on the record
4. Argumentative - a question that is not designed or intended to elicit relevant facts, but rather is an argumentative assertion
5. Compound- question that asks more than one question at a time; attorneys must ask questions individually
6. Beyond scope of direct- arises on cross-exam

>> Attorneys must confine their questions during cross-exam to the scope of direct (i.e., they cannot ask questions involving matters not discussed on direct)

Question 28

what is an Objection that calls for narrative?

Answer 28

Calls for narrative - non-specific, open-ended question that allows W to tell a story rather than give specific testimony in response to specifically asked questions

Question 29

what is an Objection that is leading?

Answer 29

Leading - question itself suggests the answer; improper on direct unless W is hostile or an adverse party; acceptable on cross-exam

Question 30

What is an Objection that assumes facts not in evidence?

Answer 30

Assumes facts not in evidence - question makes an assumption which has not been established on the record

Question 31

what is an Objection that is argumentative?

Answer 31

Argumentative - a question that is not designed or intended to elicit relevant facts, but rather is an argumentative assertion

Question 32

what is an Objection that is Compound?

Answer 32

Compound- question that asks more than one question at a time; attorneys must ask questions individually

Question 33

What is an Objection that goes beyond scope of direct?

Answer 33

Beyond scope of direct- arises on cross-exam

>> Attorneys must confine their questions during cross-exam to the scope of direct (i.e., they cannot ask questions involving matters not discussed on direct)

Question 34

List testimonial objections?

Answer 34

Unresponsive/nonresponsive - W’s testimony does not relate to or directly answer the question asked

Question 35

When an objection is waived?

Answer 35

When they are not specific and promptly made; otherwise they are deemed waived.

Question 36

Difference between testimony and opinion

Answer 36

Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion

Question 37

Lay opinion requirements

Answer 37

Lay opinion requirements - opinion testimony is admissible if it is:

1. Rationally- based - opinion is rationally based on W’s perception
2. Helpful- opinion is helpful to the trier of fact

>> I.e., gives the jury more information regarding W’s perception than the perception alone

>> Legal conclusions are inadmissible b/c they are deemed unhelpful

1. Not expert - not based on scientific, technical, or other specialized knowledge (i.e., not in the realm of expert opinion)

Question 38

Give examples of lay opinion

Answer 38

• Speed of a car
• Emotional state of an individual
• Voice or handwriting recognition (the person have personal knowledge of the person’s signature and handwritten style, he is not an expert on that)
• Sense recognition
• Intoxication

Question 39

Expert opinion scope

Answer 39

Experts provides opinions (not testimony) on facts or issues on the case

Expert may render an opinion on any ultimate legal issue

• Exception- experts cannot give opinion on D’s mental state in a criminal trial if it is an element of a crime or defense.

Question 40

Expert opinion requirement

Answer 40

Admissible if:

1. Helpful to the trier of fact (no normal juror could reach his conclusions)
2. Qualified (special skills, experience or education)
3. Reasonable certainty (reasonable degree of certainty)
4. Proper factual basis (opinion must be based on facts)
5. Reliable principals reasonably relied upon (scientific evidence must be reliable).

Question 41

expert opinion must be based on facts, from where?

Answer 41

1. Personal knowledge
2. Evidence on file (admitted evidence)
3. Learned treatises (hearsay exception) (is read into the jury, expert witness need to be on the stand)

Question 42

What requirements does Scientific evidence have to be relied upon?

Answer 42

if expert opinion is based on science, court also considers whether evidence is:

TRAP

1. Tested by peers
2. Rate of error (the lower the better)
3. Accepted by experts in same discipline
4. Published

Question 43

Testimonal privileges source of law, where are the rules?

Answer 43

There are no FRE privilege rules; fed. courts have created and adopted these privileges.

State privilege rules (which often vary) apply in fed. cases based on diversity jurisdiction

Question 44

List the testimonial privileges

Answer 44

1. Attorney-client
2. Doctor-patient
3. Psychotherapist/social worker-patient
4. Spousal
5. Marital communications
6. 5th amendment against self-incrimination

These are created by decision, not by FRE rules

Question 45

Fifth Amendment privilege, notes

Answer 45

• Effect: W cannot be compelled to testify against herself
• Applies in civil and criminal cases (including sentencing)
  
  • >> Criminal Ds cannot be punished for invoking privilege
• Courts will allow W to invoke the privilege if there is some reasonable possibility of self­ incrimination

Question 46

Attorney-Client Privilege

Answer 46

Communications between an attorney and client or client’s representatives are privileged in all proceedings unless waived

• Organizational clients- privilege applies to any employee authorized to speak to the attorney. The client is the organization no the individual

Question 47

Attorney-client: Requiremets for communications to be protected

Answer 47

To be protected, a communication must be:

1. Intended to be confidential (if 3rd party present then it wasn’t); and
2. Made to facilitate legal services

Question 48

Attorney-client privilege exceptions

Answer 48

Exceptions – privilege does not apply to:

1. Crime or fraud - privilege does not apply if a client seeks legal services to aid in the planning or commission of a fraud or a crime
2. Attorney- defending malpractice claim – privilege does not apply if communication relates to an alleged breach of the attorney’s duty (an attorney can break privilege to defend himself)

Question 49

Doctor-Patient Privilege, notes

Answer 49

Prevents disclosure of information confidentially conveyed by a patient to a physician

• Statutory privilege not recognized in FRE, but recognized and applied in most fed. courts on the basis of state law

Question 50

Doctor-Patient Privilege, requirements

Answer 50

To be protected, communication must be:

1. Made for purposes of obtaining diagnosis or treatment;
2. Pertinent to diagnosis or treatment; and
3. Intended by the patient to be confidential

Question 51

Doctor-Patient Privilege, exceptions

Answer 51

Exceptions -privilege does not apply where:

1. Patient’s condition is a legal issue (e.g., personal injury),
2. Physician’s services were sought to aid in a crime, tort, or to escape capture, or
3. Dispute between doctor and patient (e.g., malpractice)

Question 52

Psychotherapist/social worker-patient privilege, describe it

Answer 52

Psychotherapist/social worker-patient privilege - material conveyed by patient is privileged in all civil or criminal cases if:

1. Client intends the communication to be confidential; and
2. Communication is made to facilitate therapy or social work

In most ways, this privilege operates similar to attorney-client privilege

Question 53

Spousal testimony privilege, where it applies? and describe it

Answer 53

Spousal testimonial privilege - criminal cases only

• A person whose spouse is a D in a criminal case cannot be:

1. Called as a witness by the prosecution, or
2. Compelled to testify against his spouse in a criminal proceeding

• Only the W-spouse may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against her)
• Privilege can only be invoked during marriage

Question 54

Marital communications privilege - where it applies? describe it

Answer 54

Marital communications privilege - civil and criminal

• Confidential communications made during marriage are privileged in any later proceeding
  
  • >> Applies even if spouses divorce after confidential communication was made
• Either spouse may invoke the privilege
• A spouse can lose the privilege if he breaks confidentiality (i.e., relays a marital communication to a third party)
  
  • >> The other spouse still retains the privilege

Question 55

Exceptions to marital communication privilege

Answer 55

1. Suits between spouses
2. Suits in which one spouse is charged with a crime or tort against children
3. Suits in which spouses are co-defendants

Question 56

“Dead Man” witness rule

Answer 56

A party interested in the event regarding a transaction or communication with a deceased person. Is incompetent to testify against the representative or successors in interest of the deceased.

(this is not a federal rule, so the rule would only apply when state law is applicable under eerie)

Question 57

Juror competency to be a witness rule

Answer 57

A juror cannot be a witness when: (i) he testifies before the jury on which they are sitting; and (ii) he testifies in post-verdict proceedings related to the deliberations

Question 58

Differences between Marital Communications Privilege and Marital Testimony Privilege

Answer 58

Communications Privilege:

• Both Civ and Criminal
• Can be invoked by both spouses
• Regarding communications that happened while married only. Divorce doesn’t kill it but doesn’t cover conversations after

Testimony Privilege (immunity)

• Criminal only
• Can be invoked only by the W
• Last only as long as the marriage exists, but includes things that occur before the marriage