Impeachment of Witnesses

Question 1

Impeachment Defined

Answer 1

Challenge to witness’s test. based on:

1. Char. for truthfulness
2. Bias
3. Ability to perceive/testify accurately
4. Contradictory prior statement OR
5. Another Witness

Question 2

Who may impeach a Witness?

Answer 2

Credibility of a witness may be attacked by any party, including the party calling him

Question 3

How can a Witness’s Character for Truthfulness be attacked?

Answer 3

1. By use of Reputation and opinion Testimony
2. Specific Instances of Conduct
3. Evidence of truthful char. of the wit. admiss. ONLY after char. for truthfulness has been attacked

Question 4

Witness’s Character for Truthfulness - Reputation & Opinion Testimony

Answer 4

• Testimony must be about the witness’s reputation for having a character for untruthfulness, or
• In the form of an opinion of the witness’s char. for untruthfulness

Question 5

Witness’s Character for Truthfulness - Truthful Character Evidence

Answer 5

• Credibility of Witness can’t be bolstered in advance of an attack
• Ev. of truthful char. of wit. admiss. only after his char. for truthfulness has been attacked

Question 6

Witness’s Character for Truthfulness - Specific Instances of Conduct

Answer 6

Only on Cross-Examination

• Generally, not admiss. to attack or support the witness’s char. for truthfulness
• On cross, wit. may be asked about specific instances of conduct if its probative of the truthfulness or untruthfulness of
  
  1. The witness or
  2. Another witness about whose char. the wit. being crossed has testified

Question 7

Specific Instances of Conduct - Limitations

Answer 7

• Probative value is subst. outweighed by the danger of unfair prejudice (Fed. Rule 403)
• Protection of witness from harassment or undue embarassment (Fed. Rule 611)
• Lawyer who examines wit. must have good faith basis for believing that the misconduct occurred b/f asking wit. about it

Question 8

Specific Instances of Conduct - Arrest

Answer 8

• Witness can’t be cross-examined about being arrested solely for purpose of impeaching the witness’s char. for truthfulness
• BUT can be cross-examined about the underlying conduct that lead to the arrest

Question 9

Specific Instances of Conduct - Witness denies specific Act on Cross

Answer 9

• When on cross, witness denies specific act
• Extrinsic Evidence is NOT admiss. to prove specific act in order to attack or support witness’s char. for truthfulness
  
  • Exception - Criminal Convictions
    *

Question 10

When is extrinsic evidence admissible

Answer 10

• Ext. Ev. of Specific Conduct is Always admissible to impeach a witness on other grounds
  
  • Bias or prejudice
  • Sensory defects
  • Prior Inconsistent Statements
  • Bad char. of witness
• NOT to prove the conduct in order to attack or support witness’s character for truthfulness

Question 11

Sensory Competence

Answer 11

Can be impeached for deficiency in testimonial capactities:

• inability to observe,
• communicate, or
• remeber

By demonstrating that the wit. is phys. or mentally impaired or through ev. of outside interference w/ wit. abilities

• e.g. Thunder impeding ability to hear or darkness impeding ability to see

Question 12

Bias or Prejudice Evidence

Answer 12

Can be used to impeach witness b/c relevant to credibility - Wit. may be influenced by:

• relationship to a party (Family, Employment)
• Interest in the outcome (Receipt of inheritence)
• Interest in Testifying (avoidance of prosecution)

Question 13

Evidence of Prior Inconsistent Statements

Answer 13

Can be used to impeach if a witness’s prior statement is inconsistent w/ material part of the witness’s testimony

• Extrinsic Ev. of prior inconsitent statement admissible only if:
  
  • Witness has chance to explain/deny statement and
  • Opposing party can examine witness about it

Question 14

Evidence of Prior Inconsistent statement - Exception to opportunity to explain requirement

Answer 14

Opportunity to explain/deny prior inconsist. st. doesn’t apply when the statement:

1. Impeaches a hearsay declarant or
2. Qualifies as an opposing party’s statement

Question 15

What is a collateral Matter?

Answer 15

Evidence solely affecting the credibility of a witness

Question 16

Evidence of Prior Inconsistent statement - Extrinsic Evidence - Collateral Matter

Answer 16

Ext. ev. of prior inconsistent statement can’t be used to impeach witness regarding a collateral matter

• Questioning party is bound by the witness’s answer

Question 17

What are the limits to cross examining a witness about a collateral matter?

Answer 17

Whatever the question, the party is bound by the witness’ answer

• Extrinsic Ev. on a collateral matter is inadmiss. to impeach a witness

Question 18

What does the credibility issues to the limits of collateral matters not apply to?

Answer 18

1. Bias or Prejudice impeachment
2. Sensory defects
3. Character for untruthfulness

Question 19

When can evidence of a criminal conviction be introduced for impeachment purposes?

Answer 19

In all casses, for all witnesses

• A witness’s char. for truthfulness may be impeached w/ ev. that the wit. has been convicted of a crime
• Subject to some limitations

Question 20

What are the categories of admissible impeachment evidence of Criminal Conviction ?

Answer 20

1. Convictions NOT involving dishonesty/False Statement - Punishable by death or imprisonment over 1 year and
2. Crimes involving dishonesty or false statements

Question 21

Criminal Convictions Evidence for impeachment - Crimes involving dishonesty or false statement

Answer 21

Any witness may be impeached w/ evidence that he has been convicted of:

• Any crime (felony or misdemeanor)
• Involving Dishonesty or False Statement
  
  • Perjury
  • Fraud
  • embezzlement
  • false pretense
  • Forgery
  • Larceny by Trick
  • Tax evasion
• Subject to the 10 year restriction
• Regardless of punishment imposed or prejudicial effect of the evidence

Question 22

Criminal Convictions Evidence for impeachment - Crimes not involving dishonesty/False Statement

Answer 22

Admissible to impeach witness only if:

• The crime is punishable by death or imprisonment for more than one year (usually a felony)
• Subject to 10 year limitation

Question 23

Criminal Convictions Evidence for impeachment - Crimes not involving dishonesty/False Statement - Witness is a Criminal Defendant

Answer 23

When the witness is a criminal Defendant, evidence of felony conviction for a crime not involving dishonesty/False Statement admiss.

• ONLY if its probative value outweighs the prejudicial effect to the defendant
• Policy - Gives extra protection to crim. def. who takes the stand in his own case

Question 24

When will evidence of a conviction for a witness othere than the criminal defendant be excluded?

Answer 24

If the probative value is substantially outweighed by unfair prejudice (balancing test)

Question 25

Evidence of Criminal Conviction more than 10 years old

Answer 25

If more then 10 years have elapsed since conviction or release from confinement (which ever later), evidence admiss. only if:

1. Probative value of conviction outweighs its prejudicial effect, and
   
   • Supported by specific facts and circumstances
2. Proponent gives an adverse party reasonable written notice of intent to use evidence
   
   • So adverse party has fair opp. to contest the use of such ev.

Question 26

Criminal Conviction - Effect of Pardon

Answer 26

Evidence of witness’s conviction not admiss. if:

• conviction has been the subj. of:
  
  • a pardon,
  • annulment, or
  • other action based on a finding of innocence

Pending appeal doesn’t prevent impeachment

Question 27

What is the admissibility of a Juvenile Conviction to impeach?

Answer 27

1. Not admiss. to impeach a defendant
2. If witness is not a defendant, evidence of juvenile conviction can be used to impeach the wit. char. for truthfulness only if:
   
   1. It is offered in a criminal case,
   2. An adult’s conviction for that offense would be admissible to attack the adult’s credibility, and
   3. Admitting the evidence is nec. to fairly determine guilt or innocence

Question 28

Impeachment of Hearsay Declarant

Answer 28

Credibility of declarant may be attacked by:

1. Any evidence that would be admiss. if declarant had testified as a witness
2. If party against whom dearsay statement has been admitted calls the declarant as a witness, he can be examined as if under cross-examination

Question 29

Rehabilitation of an Impeached Witness

Answer 29

Rehabilitation may be accomplished by:

1. Explanation or clarification on redirect examination,
2. Reputation or opinion evidence of his char. for truthfulness, only if the witness’s char. was attacked on that ground
3. Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence

Question 30

Evidence of Religious Opinions & Beliefs for impeachment purp.

Answer 30

• Evidence of wit. religious opinions or belifs NOT admiss. to impeach credibility
• Admissible to show bias/interest (wit. affiliated w/ church that is a party to the suit)

Question 31

Impeachment by Contradictory Evidence

Answer 31

Witness may be impeached by evidence that contradicts the witness’s testimony

• Impeachment may be by:
  
  • Extrinsic Evidence or
  • by cross-examination

Question 32

How can a defendant prevent prior convictions from coming into evidence ?

Answer 32

By not testifying

Question 33

What is the consequences if a witness denies making a prior inconsistent statement ?

Answer 33

Extrinsic evidence is generally admissible to impeach

Question 34

What is the consequence if a witness admits to making prior inconsistent statement?

Answer 34

Witness has the right to explain his answer

Question 35

What are the 4 ways to impeach character of a witness?

Answer 35

1. Reputation or Opinion
2. Bad Acts
3. Felony Convictions in general
4. Specific convictions of crimes involving dishonoesty or false statements