Witness examination and impeachment

Question 1

Capacity

Answer 1

• no bright line rules
• civil case: follow state statutes
• cannot prove through reputation

Question 2

Scope of cross

Answer 2

• can’t go beyond subject matter of direct exam OR credibility
• can get an exception

Question 3

calling W primarily to impeach

Answer 3

NOT allowed

Question 4

impeaching own witness

Answer 4

Allowed

Question 5

using extrinsic evidence to impeach

Answer 5

Cannot impeach W through extrinsic evidence on a collateral matter

collateral matter = matter wholly independent of the issues at trial
—not collateral if proof comes from W’s own testimony

Question 6

attacking D’s credibility

Answer 6

not allowed unless D has testified

Question 7

impeachment by prior A2 conviction

Answer 7

• crime of dishonesty or false statements (perjury etc. or committed in a dishonest manner)
• length of punishment doesnt matter
• 403 doesn’t apply
• must be final conviction (post-sentencing) (ok if appealing)
• conviction or release from confinement/parole must be w/in 10yr
• cannot be admitted if pardon, annulment, cert. of rehabilitation, vacated on finding of innocence

Question 8

impeachment by prior A1 conviction

Answer 8

• offense punishable by more than 1yr
• impeaching D: probative value > prejudice to D
• impeaching non-D: probative value NOT substantially outweighed by prejudice
• must be final conviction (post-sentencing) (ok if appealing)
• conviction or release from confinement/parole must be w/in 10yr
• cannot be admitted if pardon, annulment, cert. of rehabilitation, vacated on finding of innocence

Question 9

impeachment by juvenile adjudication

Answer 9

cannot use unless:

• criminal case
• would be admissible if it were adult conviction
• necessary to fair determination of guilt/innocence

Question 10

bias of W

Answer 10

• can’t attack D’s bias
• prosecution Ws can be questioned re: pending convictions
• can prove by extrinsic evidence

Question 11

impeachment by character of untruthfulness

Answer 11

• can offer evidence of any WITNESS’s untruthfulness (cannot offer if not testifying)
• cannot offer evidence of W’s truthfulness unless it has been attacked (bias doesn’t count as an attack)
• methods of proof: reputation, opinion, or specific instances of conduct (no extrinsic evidence. Cant refer to 3rd party consequences/punishment. ct may allow inquiry into specific instances on cross if probative of truth)

Question 12

impeachment by psychiatric condition

Answer 12

• must be relevant to W’s ability to tell the truth

- extrinsic evidence allowed

Question 13

impeachment by prior inconsistent statements

Answer 13

• confrontation required at some point (can’t release W if going to introduce later)
• extrinsic evidence allowed

Note- party admission always allowed even if no inconsistency or confrontation