Rule 607-609 Flashcards
Non-character impeachment
Contradiction by conflicting evidence
Contradiction by past inconsistent statement
Evidence of bias
Character impeachment
Rules 607-609
Rule 607
Permits EITHER party to attack a witness’ credibility, including the party that sponsored the witness.
Rationale: Because only that witness can give certain essential testimony
Rule 608(a)
Applies to all cases
A witness’s character for truthfulness or untruthfulness may be attacked by reputation or opinion evidence
Evidence is admissible only after the witness’s character for truthfulness is attacked
Rule 608(b)
On cross only, evidence of specific acts
Rule 608(b) allows more liberal use of specific instances of conduct than does Rule 405(a), which governs the forms of character evidence offered under Rules 404(a)(1) -(2).
Rule 405 permits inquiry into specific instances of conduct during cross X of the character witness, but not during cross X of any other person, including the person about whom the character witness is testifying.
When can a prior conviction be used against a witness?
Under 609(a)(2) if the crime involved dishonesty or false statement
Do you have limiting instruction for past convictions when they are able to be admitted?
Yes, you say that the jury can only use the prior crime to weigh the credibility of the witness and cannot be used as propensity of the evidence to say that the person is more or less guilty because they committed a crime
For rule 609, why have the 10-year limit on the conviction?
May have a rehabilitated defendant and would just be that one conviction and the very low probative value and it would be unfairly prejudicial
What is a crime of falsity?
Tax fraud and perjury, but not bank robbery
3 questions you have to ask and answer under rule 609:
- How old is the conviction?
- What kind of conviction? Felony, crime of falsity
- Who is the witness against whom the conviction is being offered? Is it the criminal defendant?
Rule 609
Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
If a conviction doesn’t come in under rule 609, cannot make it come in under 608
Misdemeanors don’t come in under 609 unless it is a crime of falsity
Example 1: What kind? If talking about a crime of falsity. How old? Not older than 10 years. Doesn’t matter whom it is being offered against.
Rule 609(a)(2) must come in: no 403 balancing, no discretion.
This is the most probative type of conviction
Example 2: How old? Not older than 10 years. What kind? Felony. Who is the witness? Any witness in a civil case. In a criminal case, anyone other than the accused.
Rule 609(a)(1)(A) must be admitted subject to rule 403
Example 3: How old? Not older than 10 years. What kind? Felony. Who is the witness? The accused.
Rule 609(a)(1)(B) “modified 403” must be admitted if probative value for truthfulness outweighs its prejudicial effect (doesn’t have to substantially outweigh)
Example 4: How old? Older than 10 years.
Rule 609(b) “super modified 403” probative value for truthfulness must substantially outweigh the prejudicial effect
Example 5: Juvenile adjudications
Rule 609(d)
extremely rare for this to come in
Never in a civil case
Never to impeach the accused in a criminal case
Only if it would have come in if an adult conviction
Only if necessary for fairness
Pardons
Rule 609(c) almost never comes in
Finding of rehabilitation or innocence
Pendency of an appeal
Rule 609(e) a conviction that is pending appeal is admissible, and evidence of the pending appeal is also admissible
