Witness Impeachment & Character for Truthfulness

Question 1

Witness Impeachment

Answer 1

Every witness who takes the stand is exposed to possible cross-examination by opposing counsel, but either party may impeach a witness.

(1) Character-Based Impeachment (Impeachment for Trustworthiness); or
(2) Non-Character-Based Impeachment (Impeachment for Accuracy)

The evidence used to impeach a witness must pertain to truthfulness or untruthfulness, not peacefulness, temperance, or anything else.

Question 2

Character-Based Impeachment

Answer 2

A Witness’ character for trustworthiness may be impeached by evidence of:

(1) Character for Truthfulness/Untruthfulness;
(2) Specific Instances of Conduct; or
(3) Past Criminal Conviction.

Question 3

Non-Character-Based Impeachment

Answer 3

A witness’ accuracy may be impeached by:

(1) Allegations of Mistake;
(2) Contradiction; or
(3) Evidence of Bias.

Question 4

Witness Impeachment

Allegations of Mistake

Answer 4

A witness may be impeached by casting doubt on their powers of:

(1) Perception;
(2) Memory; or
(3) Narrative Accuracy.

These are not considered character evidence because they are capacities, not traits.

Question 5

Witness Impeachment

Contradiction

Answer 5

A witness may be impeached by exposing one lie at a time through:

(1) Conflicting Evidence or Circumstances; or
(2) Past Inconsistent Statements (Wishy Washy Witness)

Question 6

Witness Impeachment

Evidence of Bias

Answer 6

Evident of bias is generally permissible.

Examples:

• Corruption
• Family ties
• Personal friendships
• Memberships in clubs
• Employment relationships
• Etc.

Question 7

Witness Impeachment

Proving Character for Truthfulness/Untruthfulness

Answer 7

A witness’ credibility may be attacked or supported by testimony :

(1) About witness’ reputation for having a character for truthfulness/untruthfulness; or
(2) in the form of an opinion about that character

NOTE: Evidence supporting a witness’ credibility is only admissible after their credibility has been attacked.

Question 8

Witness Impeachment

Opinion Testimony

Answer 8

Witness must be qualified based on personal knowledge

Question 9

Witness Impeachment

Reputation Testimony

Answer 9

Witness must be qualified based on knowledge of:

(1) The witness;
(2) The witness’ community; and
(3) The circles in which the witness has moved.

NOTE: Consider the size of the “circle” and the proximity (usually time) of the knowledge

Question 10

Proving Character using Specific Instances of Conduct

Answer 10

Witness may be cross-examined about Specific Instances of Conduct that are probative of their character for truthfulness.

May not use any extrinsic evidence.

Question 11

Proving Character using Past Criminal Conviction

Answer 11

(1) Witness has a Past Conviction;
(2) Punishable by death or 1+ year in prison;
(3) Conviction is
(a) A readily determinable “lying crime” or
(b) Its PV outweighs risk of UP (using Brewer Factors)
(4) Conviction or Release (whichever is later) was less than 10 years ago,
(a) Its PV substantially outweighs risk of UP (modified 403), and
(b) The proponent gave reasonable notice.

NOTE: Consider whether the Conviction was juvenile or has been pardoned, annulled, or received certificate of rehabilitation

Question 12

“Lying Crime”

Answer 12

If it is not readily determinable that the conviction is for a “Lying” type of crime, the judge must weigh the probative value against the risk of unfair prejudice.

(1) if the witness is not the defendant → 403 Balancing Test; but
(2) if the witness is the defendant → Modified 403 Balancing Test (Outweighs)

Question 13

Readily Determinable “Lying” Crimes

Answer 13

“Lying Crimes” may be readily determined by:

(1) Required statutory elements;
(2) Trial court judgement;
(3) Indictment;
(4) Statement of admitted facts;
(5) Jury instructions;
(6) Etc.

Question 14

“Lying” Crimes Not Readily Determinable

Answer 14

If it is not readily determinable that the conviction is for a “Lying” type of crime, the judge must weigh the probative value against the risk of unfair prejudice.

(1) if the witness is not the defendant → 403 Balancing Test (substantially outweighs);

but

(2) if the witness is the defendant → Modified 403 Balancing Test (outweighs) using Brewer Factors.

Question 15

Brewer Factors

Answer 15

Whether evidence of convictions are more probative than prejudicial is decided based on considering:

(1) Nature of crime;
(2) Time of conviction and subsequent history;
(3) Similarity of past and present crime (more similar = more prejudice);
(4) Importance of testimony; and
(5) Centrality of credibility.

Question 16

Rape Shield Law

Answer 16

Evidence that offered to prove–

(1) The victim engaged in other sexual behavior; or
(2) The victim’s sexual predisposition

is inadmissible in proceedings involving alleged sexual misconduct.

Question 17

Rape Shield Law Exceptions

in Criminal Cases

Answer 17

In criminal cases involving alleged sexual misconduct, only the following evidence may be admitted:

(1) Specific instances of victim’s sexual behavior,
(a) Offered to prove that someone other than the defendant
(i) was the source of: semen, injury, or other physical evidence;
(b) With respect to the person accused of the sexual misconduct,
(i) If offered by the defendant to prove consent, or
(ii) If offered by the prosecution;
(2) Evidence whose exclusion would violate the defendant’s constitutional rights.

Question 18

Rape Shield Law Exceptions

in Civil Cases

Answer 18

In civil cases involving alleged sexual misconduct, evidence may be admissible:

(1) To prove:
(a) Victim’s sexual behavior; or
(b) Sexual predisposition;
(2) Only if probative value substantially outweighs the danger of:
(a) Harm to victim; or
(b) Unfair prejudice to any party.

Question 19

Procedure to Determine Admissibility of Rape Shield Law Exceptions

Answer 19

To introduce evidence admissible under the rape shield law, a party must file a motion**, **notify the victim**, and **conduct a hearing.

(1) The motion must:
(a) specifically describe evidence and state purpose;
(b) be filed at least 14 days before trial (unless court says otherwise); and
(c) Be served on all parties; and
(2) The victim must be notified.
(3) The hearing must give victim and parties opportunity to attend and be heard.

Question 20

Wishy Washy Witness Rule

Answer 20

(1) If:
(a) Witness not a party;
(b) Witness made prior statement; and
(c) Prior statement is inconsistent with current testimony;
(2) A party may:
(a) Examine the witness about prior inconsistent statement;
(i) they need not show or disclose contents of statement; unless
(ii) Adverse party requests the contents of statement;
(b) Introduce Extrinsic Evidence of prior statement; only if
(i) Presented while the witness is testifying; and
(ii) Witness given opportunity to explain or deny.

Question 21

“Inconsistent” Statement

Answer 21

1. Must contradict
2. Does not need to be in plain terms/obvious