Impeachment: Conviction of Crime, Bad Acts, Opinion/Reputation of untruthfulness, Sensory Deficiencies, Contradictory Facts

Question 1

What is the general rule re: impeachment of a witness by evidence of conviction of a crime?

Answer 1

• A witness may be impeached by proof of CONVICTION for certain crimes.

NOTE –> there must be a CONVICTION, arrest or indictment is NOT sufficient

NOTE –> pending appeal does NOT affect use of conviction

Question 2

Under federal rules, with regards to impeachment by conviction, what are the three relevant categories of crimes?

Answer 2

1. Any crime involving DISHONESTY (felony OR misdemeanor)
2. Felony NOT involving DISHONESTY
3. Misdemeanor convictions not involving dishonesty

Question 3

Under FRE, What is the rule w/ regards to impeachment by conviction of CRIME INVOLVING DISHONESTY?

Answer 3

• Witness MAY be impeached by conviction of any crime involving dishonesty (whether felony or misdemeanor)
• court has NO discretion to bar these crimes UNLESS conviction is more than 10 years old
• if conviction is more than 10 years old –>
  (i) admissible only if its probative value SUBSTANTIALLY OUTWEIGHS its prejudicial effect; AND
  (ii) notice is given to other party

NOTE –> “crime involving dishonesty” is interpreted narrowly.
INCLUDED –> perjury, false statement, criminal fraud, embezzlement, false pretense
NOT included –> simple theft

BUT SEE –> exceptions

Question 4

Under FRE What is the rule w/ regards to impeachment by conviction of FELONY NOT INVOLVING DISHONESTY?

Under FRE, what is the rule w/ regards to impeachment by conviction of MISDEMEANOR NOT INVOLVING DISHONESTY?

Answer 4

If witness is a CRIMINAL DEF –>
Must be admitted if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

If witness is NOT a criminal def –> must be admitted subject to rule 403 balancing (unless it’s probative value is substantially outweighed by prejudice etc).
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MISDEMEANOR NOT involving dishonesty –> INADMISSSIBLE To impeach

Question 5

What is the rule if ANY conviction is older than 10 years old?

When are convictions INADMISSIBLE (4) ?

Answer 5

1. If more than 10 years have passed since date of conviction or release (whichever is later)
   - Conviction cannot be admitted UNLESS its probative value SUBSTANTIALLY outweighs its prejudicial effect

INADMISSIBLE:

1. juvenile convictions offered in a civil case, or in a criminal case where requirements aren’t satisfied
2. convictions obtained in violation of constitutional rights
3. witness has been pardoned, AND
   (i) pardon is based on innocence; OR
   (ii) pardon is based on rehabilitation AND person pardoned has not committed a subsequent felony

Question 6

How may a prior conviction be introduced?

Answer 6

A prior conviction may be shown EITHER by:

1. direct or cross examination; OR
2. by introducing a record of the judgment

NO foundation is needed

Question 7

Under FRE, in general, what is the rule w regards to impeachment of a witness by “PRIOR bad acts” (specific instances of misconduct)?

What is the CA distinction?

Answer 7

A witness may be interrogated on cross:
1. with respect to a SPECIFIC ACT of misconduct;
2. IF the act is PROBATIVE OF TRUTHFULNESS (ie..an act of deceit or lying)
[NOTE –> this is subject to court’s balancing discretion]

NOTE –> must be asked in good faith

NOTE –> MAY NOT be proven by extrinsic EVIDENCE

NOTE –> MAY NOT ask about the arrest for the act, just the act itself.
OK –> isn’t it true you embezzled?
NOT OK –> isn’t it true you were arrested for embezzlement?
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CA DISTINCTION
In civil cases –> prior bad acts/specific instances are INADMISSIBLE for impeachment. Not allowed in cross or by extrinsic evidence

In CRIMINAL cases –> Prop 8 makes acts of moral turpitude admissible by BOTH cross and extrinsic evidence

Question 8

What is the rule for impeachment by “Opinion or Reputation Evidence of Untruthfulness”?

What is CA rule?

Answer 8

A witness may be impeached by showing he has a poor reputation for truthfulness

HOW –>

1. evidence of reputation in business circles or community where witness resides
2. witness may also offer his OPINION as to character of a witness for truthfulness

NOTE –> no foundation is required

CA rule –> SAME

Question 9

What is the rule for impeachment by “sensory deficiencies”?

Answer 9

A witness may be impeached by evidence that his FACULTIES of PERCEPTION or RECOLLECTION were so impaired as to make it DOUBTFUL he could have perceived those facts.

HOW:

1. cross; or
2. extrinsic evidence

Question 10

What is the rule re: impeachment by extrinsic evidence by “contradictory facts”?

Answer 10

Extrinsic evidence of facts that contradicts witness’s testimony MAY sometimes be admitted to suggest that witness’s MISTAKE or LIE on one point indicates false/erroneous testimony as to the whole.

This is permissible IF:

1. witness’s testimony is MATERIAL; OR
2. testimony is significant on issue of CREDIBILITY; OR
3. witness volunteers testimony about subject as to which opposing party would OTHERWISE BE PRECLUDED from offering in evidence

HOWEVER –> extrinsic evidence is NOT permitted to prove contradictory facts that are COLLATERAL

Question 11

What is the rule re: impeachment on a collateral matter?

Answer 11

If witness makes a statement NOT directly relevant to an issue in the case:

• Rule against impeachment on a collateral matter applies to BAR his opponent from proving statement untrue either by:
  1. extrinsic evidence; or
  2. prior inconsistent statement

Question 12

When is a juvenile conviction admissible to impeach (4)?

Answer 12

1. offered in criminal case
2. witness is not Def
3. an adult’s conviction for the offense would be admissible to attack the adult’s credibility
4. admitting the evidence is necessary to fairly determine guilt or innocence.