IV. WITNESSES H. Impeachment Methods*** Flashcards
Overview:
Overview:
(1) Prior Inconsistent Statements
(2) Bias, Interest or Motive to Misrepresent
(3) Sensory Deficiencies
(4) Bad Reputation or Opinion about witness’s character for truthfulness
(5) Criminal Convictions
(6) Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness (***not in TX)
(7) Contradiction
456 r Bad Character for Truthfulness
With respect to each impeachment method, consider 2 procedural issues:
(1) Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other witnesses), or is party bound by witness’s answers to impeaching questions?
(2) Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evidence?
- Prior Inconsistent Statements
what if witness says he can’t remember
Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.
must be relevant to the case
can substitute the later statement, because not come in for its truth
***then no inconsistent statement, because impeachment is casting an adverse reflection on the witness’s truthfulness
exception: BUT certain prior inconsistent statements may be admitted both for impeachment and as substantive evidence—to prove the truth of the matter asserted in the prior inconsistent statement: prior inconsistent statement given orally under oath AND as part of a formal hearing, proceeding, trial or deposition.
Example: Witness made her prior inconsistent statement about the Jeep Cherokee during a pretrial deposition in which she gave sworn testimony. This would be admissible to prove that the Jeep Cherokee, in fact, ran the stop sign.
- Prior Inconsistent Statements
Confrontation / Extrinsic Evidence Issue: Must Witness be confronted with her prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation (i.e., at next opportunity for presenting affirmative evidence, call the person to whom she made the statement (if oral), or (if in writing) lay foundation to introduce writing into evidence)?
TX?
***Texas rule (immediate): Confrontation on stand usually required:
Witness must be told the contents of the prior inconsistent statement, time and place, and person to whom made; and must be given an immediate opportunity to explain or deny the statement.
Federal rule (some point): Confrontation timing is flexible: Not required to immediately confront Witness. But after proof by extrinsic evidence, Witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement.
Exception: No confrontation required and no opportunity to explain need be given if Witness is __opposing party__
- Bias, Interest or Motive to Misrepresent
Confrontation / Extrinsic Evidence Issue:
(a) Must witness be confronted with alleged bias while on the stand?
TX?
***Texas rule: Yes. Witness must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny.
Federal rule: Court’s discretion.
Although a party is permitted to show a witness’s bias or interest, another party may not subsequently show that the witness’s bias is justified.
- Bias, Interest or Motive to Misrepresent
Confrontation / Extrinsic Evidence Issue:
(b) If confrontation prerequisite is met, may bias be proven by extrinsic evidence?
TX?
***Texas rule: Yes, if witness denies bias or fails to admit bias _unequivocally _
Federal rule: Yes, court has discretion to permit extrinsic evidence even if witness admits the bias.
- Sensory Deficiencies
Confrontation required?
Extrinsic evidence allowed?
Anything that could affect witness’s perception or memory. Examples: bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the witness stand. Purpose: to suggest mistake.
no
yes
4. Bad Reputation or Opinion About Witness’s Character for Truthfulness who can be impeached? Confrontation required? Extrinsic evidence allowed? examples of bad acts?
any witness
no
yes; only way, use other witness for reputation/ opinion
no; no specific instances of conduct
- Criminal Convictions
federal
Purpose: to suggest testimony is false. Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.
(a) Federal Rule:
(1) Conviction of any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach any witness.
(2) If conviction does not involve dishonesty or false statement, it must be a felony, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt).
(3) Conviction, or release from prison, whichever is later, generally must be within 10 years of trial.
(4) Method of proof:
Ask witness to admit prior conviction, or
Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction.
- Criminal Convictions
(b) Texas Rule
Same as Federal, with 3 distinctions:
1. Types of conviction that can be used to impeach:
felonies of any type and crimes of Moral Turpitude
dishonesty, violent, sexual misconduct.
2. BALANCING of impeachment value against potential for prejudice applies to ALL convictions.
3. Cannot use conviction to impeach if an appeal of the conviction pending.
- Criminal Convictions
(c) Rehabilitation, Innocence, and Probation: Conviction is not Admissible if:
unless
TX
- Conviction was Subject of a pardon, annulment, certificate of rehabilitation, or “other equivalent procedure” based on a finding of __Rehabilitation__.
Unless:
Federal Rule: subsequently convicted of Crime punishable by death or imprisonment in excess of one year.
Texas Rule: subsequently convicted of felony or crime of moral turpitude. - Was subject of pardon, annulment, or “other equivalent procedure” based on a finding of __innocence__.
- Texas Only: Successful completion of probation.
- Inquiry About Bad Acts (without conviction) if they reflect adversely on witness’s character for truthfulness
confrontation?
TX
Confrontation on cross-examination is the only permissible means. (attorney ask questions but no witness testify)
***No extrinsic evidence is permitted (Testimony from a competent witness that the defendant regularly cheats at cards.).
Cross-examiner must have good-faith basis, and ability to inquire lies in court’s discretion.
*not in TX
if witness answer no, can only accept the witness’s answer, cant prove it
can object if use arrested/ charged/ indicted, fear that jury confuse those with conviction
- Contradiction
extrinsic evidence allowed?
Concept: Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.
Rule: EXTRINSIC EVIDENCE NOT ALLOWED for the purpose of contradiction IF the fact at issue is COLLATERAL. A fact is collateral if it has no significant relevance to the case or to the witness’s credibility.
impeachment of a hearsay declarant who is not available to testify at trial
the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. 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.
what if witness plead the 5th and refuse to answer but party still introduce the conviction to impeach
the 5th applicable in civil or criminal?
the court should exclude it as irrelevant because the witness didn’t give any testimony to be impeached
both
