Rehabilitation

Question 1

Rehabilitation - Scope

Answer 1

• always a response to impeachment - you can only address the grounds on which the witness was impeached
• form if rehabilitation must meet the force of impeachment

Question 2

Five Modes of Rehabilitation

Answer 2

• honesty (character for truthfulness)
• consistency
• disinterest/lack of bias
• capacity
• specific corroboration

Question 3

Rule 801(d)(1)(B)

Answer 3

• prior consistent statement
• comes in as substantive evidence

Question 4

Bolstering

Answer 4

• trying to argue in favor of believing the witness before the witness even takes the stand
• generally prohibited (would otherwise lead to very long trials)
• also a sense that because jury hears one side first then the other, bolstering would be unfair (they’d decide credibility before the other side had a chance)

Question 5

Rule 608(b) and Rehabilitation

Answer 5

• specific instances of truth limited to intrinsic redirect

Question 6

Rule 608(a) and Rehabilitation

Answer 6

• theoretically, would allow you to put on witnesses re reputation for truthfulness
• BUT question becomes whether or not the impeachment was really character for untruthfulness or other grounds (bias/motive to lie, inconsistent statement, etc.)
• not all questions of credibility trigger character for truthfulness (can argue attorney expressed skepticism without actually impeaching)

Question 7

United States v. Danehy

Answer 7

• 11th Circuit, 1982
• on vigorous cross-examination, prosecution pointed out all the inconsistencies in Danehy’s testimony and that of other witnesses
• Danehy did not get to put on witnesses for truthfulness though because such cross did not constitute impeachment on character for untruthfulness - court here argued pointing out inconsistencies not the same as attacking reputation

Question 8

Impeachment and Tone of Questions

Answer 8

• Prof noted that the tone of questions can become important in assessing whether or not someone has really been impeached on character for untruthfulness
• concept that tone of the cross-examination should inform the evaluation of mode of impeachment + that framing of q’s delved into character

Question 9

Rule 801(d)(1)(B)(i)

Answer 9

• SCOTUS has imposed a temporal component on this - the prior consistent statement must be from before whatever happened that the other side asserts gave you a motive to lie/fabricate

Question 10

Rule 801(d)(1)(B)(ii)

Answer 10

• got added after SCOTUS added the temporal limitation to i
• means you can use prior consistent statements to rehabilitate in response to any attack other than fabrication and improper influence/motive
• prior consistent statement comes in substantively for the truth, and doesn’t have a temporal limitation