Pg 23 Flashcards
What are the three ways you can impeach a witness’ character for truthfulness?
– Through reputation or opinion testimony of a second witness
– impeachment by unconvicted acts
– impeachment by conviction
How do you impeach someone’s character for truthfulness using the reputation or opinion testimony of a second witness?
You can attack a first witness’ credibility through testimony about his reputation for honesty/dishonesty or testimony as an opinion about that character. This can only be done AFTER the witness’ character for truthfulness has been attacked. You cannot bolster
Is it possible to have a first witness testify that the light was red, then the next witness be asked about the first witness’ reputation for truth or untruth and have him say it is good?
No, because in order to impeach a witness’ character for truthfulness through the testimony of a second witness, his character for honesty has to have already been attacked. This would be bolstering because you are just adding good testimony when there was no previous attack
If a witness has been impeached because of his character for truthfulness, is it possible for him to rehabilitate himself?
Yes, you can rehabilitate once there has been an attack on the honesty of the witness, by bringing in another witness on redirect to discuss the reputation or opinion evidence about that first witness’ honesty. You cannot rehabilitate character for truthfulness with specific instances of honesty and it cannot be proven up extrinsically
How is California different from the FRE for impeaching a witness’ character for truthfulness through the reputation or opinion testimony of a second witness?
It is the same for civil cases, but for criminal cases, proposition eight removes any limitations on impeachment evidence subject to 352. So you can bolster, and the second witness can testify to specific instances of the first witness’ dishonesty, even on direct. You can also prove up with specific instances
If a plaintiff sues the defendant, and the defendant testifies, then in rebuttal the plaintiff calls another witness to say that the defendant is a known liar. Then in surebuttal the defendant calls a witness to say that he found a wallet and returned it. Is that allowed in either California or federal cases?
– FRE: cannot bring in a new rehabilitating witness to testify to specific instances on direct. Can only testify about reputation or opinion on direct
– CEC: same for civil cases, but different because of preposition eight for criminal cases
How do you impeach a witness’ character for truthfulness through unconvicted bad acts?
You can cross examine the witness about dishonest acts in his past that are probative of truthfulness, even if they never resulted in an arrest/charge/conviction.
What are the necessary requirements to impeach a witness’ character for truthfulness through unconvicted bad acts?
– You can only cross examine the witness about this, you cannot prove it up
– you cannot bolster the witness’ character for truthfulness, the witness must be attacked about it first
– the witness that is testifying about the other witness’ truthfulness is limited on direct to reputation or opinion testimony, but can speak to specific instances on cross-examination, although it cannot be approved up extrinsically
– The attorney trying to rehabilitate the witness must have a good faith basis to ask the question because it suggests to the jury that there are facts to support it
– can only ask about truthfulness/untruthfulness from the past, you cannot ask about any other trait
Is it possible to try to impeach a witness’ character for truthfulness through unconvicted bad acts by bringing in evidence that the victim was a prostitute?
No, because that doesn’t speak to her character for truthfulness/dishonesty
What is the difference between the FRE and the CEC on impeaching a witness’ character for truthfulness through unconvicted bad acts?
California doesn’t have this provision. It cannot be done in a civil case. In a criminal case proposition eight allows you to use this method and lets you bolster by asking the witness on direct about specific instances relating to his honesty even before an attack. It can be proved up with extrinsic evidence. The only limit is the judge’s discretion under 352
What is involved in impeaching a witness’s character for truthfulness through convicted acts?
This can be done through evidence of conviction of a crime to attack the witness’ character for truthfulness/untruthfulness. This can happen through either cross examining the witness about the conviction, or introducing a record of the conviction into evidence.
Although many courts say that because of 403, you should cross examine the witness about it before introducing a record of conviction since the conviction record can have extra details that don’t relate to the impeachment issue and the jury might give it too much weight, so it’s better to deal with it on cross if possible
What is the rationale for allowing a witness’s character for truthfulness to be impeached through a convicted act?
If the defendant was willing to break the law before, he probably doesn’t respect the oath to tell the truth on the stand. This questions their credibility and suggests their testimony should get less weight
What are the five steps to ask on an essay if you are trying to impeach a witness‘ character for truthfulness through a convicted act in order to determine which convictions are admissible?
– pardon/annulment – 10 years plus – dishonesty/false statement – felony – defendant in a criminal case
When working through the five steps to determine if a conviction is admissible for a convicted act (to impeach a witness’ character for truthfulness), what is involved in the first step of pardon/annulment?
Ask if the conviction was pardoned or something similar through rehabilitation without serious recidivism or actual innocence.
- If so, the conviction doesn’t say anything about the witness’ willingness to break the law/tell the truth under oath, so can’t be used to impeach credibility.
- Unless the facts mention these things specifically, assume they don’t apply
