Pg 24

Question 1

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 10 years plus category?

Answer 1

You must ask if the conviction is more than 10 years old.

• If it is it can only be used to impeach if the court decides that its probative value substantially outweighs the prejudicial effect (reverse 403). Strong presumption of inadmissibility.
• must give advance notice of intent to use a conviction to impeach

Question 2

What is the rationale behind the 10 years element of using a convicted act to impeach a witness for truthfulness?

Answer 2

People change over time, so old convictions don’t say much about someone’s present willingness to tell the truth

Question 3

If someone pulled off a $900 million Ponzi scheme, and then 11 years later is testifying, would information about that previous crime be admissible to impeach the witness for a convicted act?

Answer 3

Even though it was more than 10 years old, because of the elaborate fraud being the exact kind of thing a jury would need to know about, it is likely that under a reverse 403 analysis, this information would come in

Question 4

When looking at the 10 years plus element to impeach a witness’ credibility for truthfulness under convicted acts, what do you have to pay special attention to?

Answer 4

That the person was actually convicted, just passing a bad check doesn’t count unless the person was convicted

Question 5

When does the 10 years date begin or end when you’re talking about impeaching a witness for truthfulness based on a convicted act?

Answer 5

It must be 10 years from the date of conviction or release from prison, which ever is later. If the facts say the person was convicted 12 years ago, but out of prison nine years ago, that’s totally OK to use

Question 6

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 dishonesty/false statement element?

Answer 6

Must ask if it was a conviction for a crime that involved dishonesty or a false statement.
– If so, it must be admitted. Judge has no discretion on this

Question 7

What is the reason that if you are impeaching a witness for truthfulness based on a convicted act, if the act is related to dishonesty it must be admitted?

Answer 7

A recent conviction for dishonesty is very relevant to whether a witness would be willing to lie on the stand, so the jury should hear about it

Question 8

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 felony element?

Answer 8

Ask if it was a felony that was punishable by more than one year in prison
– if so, it might come in
– if not, it will not

Question 9

What is the rationale behind the felony component of impeaching a witness for truthfulness based on a convicted act?

Answer 9

The more serious the crime is, the more likely a witness will disregard the law and an oath to tell the truth

Question 10

What do you have to be careful for with the felony element of impeaching a witness for truthfulness for a convicted act?

Answer 10

Time served is not an indicator of whether it was a felony. If the facts say defendant only served 11 months out of a year or longer sentence, that doesn’t matter it is still a felony

Question 11

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 defendant in a criminal case element?

Answer 11

You must ask if the conviction is being used against the defendant in a current criminal case or not, because there are different standards for criminal defendants and other parties/witnesses

• criminal defendant: can only use the conviction to impeach him if the probative value outweighs the prejudicial effect (aka: good slightly outweighs bad). ** only applies to CRIM Ds, not CIV Ds
• anyone else (P/D/any witness in civil case/witness in crim case that isn’t D): use 403 to exclude it if the probative value is substantially outweighed by the prejudicial effect

Question 12

For the defendant in a criminal case element of impeaching a witness for truthfulness based on a convicted act, who gets the most protection?

Answer 12

A criminal defendant, because the felony is only admitted if its probative value outweighs the prejudicial effect, but for everyone else the felony is admitted unless the undue prejudice substantially outweighs the probative value

Question 13

Would this evidence be admitted to impeach a witness for truthfulness based on a convicted act?

11-year-old felony perjury conviction used to impeach the credibility of a plaintiff in a personal injury case

Answer 13

– Annulment: no
– 10 years: more than 10 but judge can admit under reverse 403
– dishonesty: yes

Judge would probably use his discretion to admit this

Question 14

Would this evidence be admitted to impeach a witness for truthfulness based on a convicted act?

Defendant is prosecuted for fraud. On cross-examination the prosecution asked if last year he was convicted of a felony DUI

Answer 14

– annulled: no
– 10 years: OK
– dishonesty: no
– felony involving criminal defendant: probative value must outweigh prejudicial effect.

A DUI has a little relevance to fraud and is very prejudicial, because the jury will not like the defendant if they hear that. So this would probably not be allowed to come in

Question 15

When trying to impeach a witness for truthfulness based on a convicted act, is it possible to offer an internal investigation report?

Answer 15

No, you can only offer a conviction record. Anything else is just a bad act, and those can only be inquired onto on cross and not proved up with a document

Question 16

If a plaintiff sued the defendant for negligence in an accident, and the defendant filed a counterclaim saying the plaintiff was at fault. In his case in chief the plaintiff testified that the defendant ran the red light. On cross of the plaintiff, defendant’s attorney asks “were you convicted of a felony DUI the year before the accident?“. Would this be allowed?

Answer 16

Probably not, because a recent unpardoned felony not involving dishonesty can be used against a witness other than a criminal defendant (here this is a civil plaintiff), but a DUI conviction is only minimally probative of the witness’ credibility, and very risky because of the impermissible propensity inference that the jury would make suggesting that the plaintiff drove drunk, so he’s more likely at fault in an accident

Question 17

What is the difference between the California evidence code and the FRE for impeaching a witness’ truthfulness based on a convicted act?

Answer 17

In California:
– civil cases: you can only use felonies to impeach, not misdemeanors. Applies a multi factor balancing test that considers: age of conviction, probity, prejudice
– criminal cases: proposition eight removes all limits on impeachment evidence, subject to the judge’s 352 discretion, but due process requires that a conviction must involve moral turpitude to impeach a witness’ credibility in a criminal case. So this allows a misdemeanour to impeach credibility as long as it involves moral turpitude. Remember that not all felonies apply because they don’t all involve moral turpitude. I.e.: murder and aggravated assault likely count, but a felony DUI likely doesn’t

Question 18

If plaintiff sues defendant for breach of contract, and the defendant testifies, and on cross, the plaintiff asks if in 1988 the defendant was convicted of passing a bad check. Would this be allowed in either federal or California court?

Answer 18

No
– federally: the conviction is 30 years old
– CA: civil cases only use felonies to impeach, and this is not