Pg 22 Flashcards
What is involved in the category of the witness having an interest in the outcome of the trial that could influence the witness’ credibility?
He could’ve been bribed, threatened, made a deal with the prosecutor for a reduced sentence, or have any motive to lie/add/admit/change facts to help/hurt one side
What is involved in prior inconsistent statements that affect a witness’ credibility?
Self-contradiction via out of court statements can be used to impeach a witness’ credibility. The person that said the prior inconsistent statement must also be testifying in court, otherwise there is no witness testimony to impeach, and the witness must have the opportunity to explain or deny the statement
If a witness testifies to something, is it possible for an attorney to use evidence that the witness previously said the opposite of that to suggest that his testimony shouldn’t be given much weight because he was speaking out of both sides of his mouth?
Yes
If an attorney wants to impeach a witness based on prior inconsistent statements, what are the two ways that he can do that?
- The attorney can cross examine the witness about the prior statement, or
– can prove it up extrinsically by calling a different witness that has knowledge of the prior statement, or by introducing the statement if it is written. This route is allowed as long as the witness is given an opportunity to explain or deny his statement and the adverse party has the opportunity to examine the witness about it
If there is a fact pattern where a party is trying to introduce an out-of-court statement from someone that hasn’t testified as a witness at trial, is that permissible as a prior inconsistent statement?
No, because the speaker of the prior statement has to be testifying in court
How do you ensure that the witness has the opportunity to explain or deny the statement when you impeach a witness through a prior inconsistent statement?
- If you cross examine the witness about it, that is fine.
- If not, you cannot fully excuse the witness once you finish giving testimony, because they may need to be called back to the stand. If the judge asks if the witness is excused, you must say “at this time, but subject to being recalled.“ Once the witness is dismissed, the subpoena for his presence is gone and he’s no longer required to testify. By leaving it as “subject to being recalled,” you ensure that the witness can still be put on the stand to explain or deny the prior inconsistent statement
If a witness that you were trying to impeach through a prior inconsistent statement is suddenly not available to be recalled to the stand because he died or was hit by a car, what happens?
The judge can waive the requirement that the witness have the opportunity to admit or deny the statement if there is a good cause
In order to meet the requirements to impeach a witness for a prior inconsistent statement, must the witness actually explain or deny his statement?
No, he only has to have the opportunity to do that
What is the standard for determining that a witness can be impeached because of a prior inconsistent statement?
Inconsistency in effect. It doesn’t have to be opposite facts, they can just be different if you would expect an honest witness to be more consistent
If a witness doesn’t recall something that is an important fact, or he suddenly remembers an important fact now that he couldn’t remember before, is that enough to count as an inconsistent statement to be impeached for prior inconsistent statement?
Yes
If at a deposition, the plaintiff said he didn’t remember having any injuries from the battery, but at trial he says he had a blackeye, is that enough to impeach him with a prior inconsistent statement?
Yes, because it is inconsistent since people’s memories don’t usually get better as time passes. If the opposite was true, that he remembered at the deposition, but didn’t remember now, that would not be impeachable because people‘s memories tend to fade, unless the fact was so important it would be impossible to forget
Is it possible to impeach one witness with another witness’s prior statement under the prior inconsistent statement?
No.
How do you rehabilitate a witness after they have been impeached for prior inconsistent statements?
You can offer an even earlier consistent statement that aligns with the testimony to rebut the allegation that the witness lied when testifying or to rehabilitate their credibility. This rehabilitation can even come from a different witness, it doesn’t have to be the witness that is being attacked
What are the requirements to rehabilitate a witness that has been impeached for prior inconsistent statements?
You can bring in a statement that was made even earlier that is consistent with the testimony if:
– Statement was made by a testifying witness
– prior statement is consistent with the witness’ trial testimony
– there is an express or implied charge of an improper influence/motive/recent fabrication or the witness’ credibility was otherwise attacked for initial consistent statements to be admissible. You cannot have bolstering, there must be an attack first
– the prior consistent statement must have pre-dated the inconsistent one
What is the rationale behind allowing rehabilitation for a prior inconsistent statement?
It rebuts the claim that the influence or motive shaped the testimony, since the witness was saying the same thing he is saying now before the inconsistent thing got said
