Witness Testimony and Impeachment

Question 1

When may an inconsistent statement be used for impeachment purposes?

Answer 1

ANYTIME! Regardless of whether:

1) It was made before or after the hearsay statement or

2) The declarant had an opportunity to explain or deny the inconsistency

Question 2

Could an inconsistent statement be used for substantive evidence (for it’s truth)?

Answer 2

No, unless it is also excepted or excluded from the hearsay rule.

Question 3

May a hearsay declarant’s testimony be impeached for inconsistency?

Answer 3

If a hearsay statement is admitted, then the declarant’s credibility may be attacked through the same methods used to impeach a testifying witness.

Question 4

What is personal knowledge?

Answer 4

A nonexpert witness must have personal knowledge of a matter to testify in it.

Question 5

Impeachment: Bias

Answer 5

Evidence of bias, motive to lie, prejudice, or having interest in outcome is admissible to impeach a witness.

Question 6

Past Recollection Refreshed

Answer 6

Not a hearsay exception!

Allows a witness to examine any item to refresh their recollection.

The testimony is not based off the item, but the refreshed memory.

Question 7

What rights does an adverse party have when the recollection-refreshing item is in writing?

Answer 7

Adverse party is entitled to::

1) Inspect document

2) Cross examine witness about it

3) Introduce any relevant portion into evidence

Question 8

Lay Witness Testimony

Answer 8

Opinions by lay-witnesses (non-experts) are admissible if:

1) Rationally based on witnesses perception

2) Helpful to a clear understanding of witness’s testimony or a fact at issue

3) Not based on scientific, technical, or other specialized knowledge

Question 9

Expert Witness Testimony

Answer 9

Expert’s may testify into a matter if the court finds:

1) Witness’s testimony is based on scientific, technical, or other specialized knowledge

2) Will help the trier of fact understand the evidence or determine a fact in issue

Question 10

May SIC’s be used for impeachment purposes?

Answer 10

Yes, SIC that bear on a witness’s ability to tell the truth are admissible as impeachment evidence

UNLESS

Probative value is substantially outweighed by prejudicial effect (403)

Further, SICs can only be introduced in cross, and extrinsic evidence cannot be admitted to prove SICs if witness denies.