witnesses and impeachment Flashcards
What is required for a witness to be considered competent?
- Take an oath to testify truthfully;
- Testify based on personal knowledge );
- Must not be incapacitated; and
- Must give testimony as to facts, not opinions
*under FRE, witnesses are presumed competent
scope of testimony
-a lay witness MUST have personal knowledge
-an expert witness does not need to have personal knowledge
judge’s competency as a witness
The presiding judge may NOT testify as a witness at the trial. the objection is automatic and need not be made.
competency of a juror as witness
A juror may NOT testify as a witness before the jury of which they are a member.
what a juror may testify to
-extraneous prejudicial information improperly brought to the juror’s attention;
(A juror may be questioned regarding whether or not someone brought in a newspaper article about the case, or about a communication by a juror with court personnel regarding the case.)
-that a juror made an unauthorized visit to the scene, or conducted out-of-court experiments regarding evidence presented at trial; or
-that a juror accepted a bribe, or was threatened with harm.
impeaching the verdict
A juror may NOT testify as to the manner in which the jury reached its decision; such testimony, generally, is inadmissible.
Impeachment
evidence which attacks a witness’s credibility
*always relevant, even if beyond the scope of the first examination. always admissible.
who can attack the credibility of a witness
any party, including the party calling the witness
rehabilitation
after a witness is impeached, evidence which detracts from the impeachment is admissible.
*evidence to enhance a witness’s credibility is NOT admissible under AFTER the witness has been impeached.
methods of rehabilitation
- explain or deny
- prior consistent statement
- character evidence for truthfulness by reputation or opinion
collateral matter rule
a collateral matter is evidence solely affecting the credibility of a witness. it is otherwise irrelevant to the cause of action or defense.
extrinsic evidence on a collateral matter
Impeaching with extrinsic evidence on a collateral matter is limited (not an absolute bar)
-Extrinsic evidence: any impeachment evidence other than the questions and answers of the witness being impeached)
-Collateral matter: anything that is not relevant to the cause of action.
cross-examination while impeaching on collateral matter
the cross-examiner is bound by the witness’s answer
methods of impeachment
- Interest, motive, or bias
- (sensory defects)Incapacity to observe, recall, or relate
- (prior) Inconsistent statement (PINS)
- Character evidence for truthfulness by reputation or opinion
- Character evidence for truthfulness by prior bad acts
- (prior) Conviction of crime
- Contradiction
Mnemonic “3 I’s 4 C-ing” (“Three Eyes For Seeing”)
Impeachment by interest, motive, or bias
bias or prejudice is always material and relevant. extrinsic evidence is admissible.
impeachment by sensory defects
the inability to observe, communicate, or remember.
-extrinsic evidence is admissible. always relevant
impeachment by character evidence for untruthfulness by reputation and opinion
a witness’s character for untruthfulness is always material and may be attacked by reputation or opinion evidence.
impeachment by prior bad acts
specific bad acts of any testifying witness that are probative of the witness’s truthfulness are admissible to attack or support the witness’s credibility
*no extrinsic evidence allowed
must be by:
1. a question
2. on cross-exam
3. inquiring into the witness’s own prior bad acts bearing on truthfulness or dishonesty
*the bad acts cannot be too remote in time and must be asked in good faith
impeachment by prior conviction of crime
10 years or less - Dishonesty crime - no balancing – mandatory OK
- 10 years or less - Non-dishonesty felony - presume OK – (403 balancing – admitted unless PV outweighs DOUP)
- 10 years or less - Non-dishonesty felony - criminal D is W – presume NOT OK (NOT 403 balancing - excluded unless PV outweighs DOUP)
- > 10 years old - any crime - presume NOT OK (NOT 403 balancing - excluded unless PV substantially outweighs DOUP); also proponent must give opponent “reasonable written notice” (pre-trial not req’d ) of intent to use such a conviction to impeach
impeachment by prior conviction of crime- types
- Crimes punishable by death or by imprisonment for more than one year (always in civil & criminal cases if witness is not D, & if witness is the D, can be admitted if probative value of the evidence outweighs its prejudicial effect in criminal cases)
- Convictions more than 10 years old (i.e. more than 10 years has elapsed since the date of the conviction or of the release of the witness)
–Only if its probative value substantially outweighs its prejudicial effect, and other party was given written notice and chance to object) - Any crime involving dishonesty and/or false statements
convictions older than 10 years
Only admissible if:
- Its probative value substantially outweighs its prejudicial effect; and
- Adverse party is given reasonable notice of the intent to use the crime and an opportunity to object
When is a conviction involving dishonesty admissible to impeach?
If a witness has been convicted of a felony or misdemeanor involving dishonesty and it’s equal to or less than 10 years old, there is no discretionary balancing test. It will be admitted, even if it has a serious prejudicial effect.
When is a felony not involving dishonesty admissible to impeach?
If witness is the criminal D:
–Only admissible if the probative value outweighs its prejudicial effect to D
If the witness is not the criminal D:
–May be admitted unless probative value is substantially outweighed by the prejudicial effect
Is evidence of a witness’s prior juvenile conviction admissible to impeach?
Not admissible to impeach the defendant. Can impeach another witness if:
-Evidence is offered in criminal case;
-An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
-Admitting the evidence is necessary to fairly determine guilt or innocence
*never in a civil case
impeachment by prior inconsistent statement
Will only be admitted to impeach the witness and cannot be used as a substantive evidence for the case.
*On request, other side lawyer must show a written/recorded PINS to the opponent
“inconsistent” statement
prior statement must be inconsistent with the in-court testimony. Inconsistency may be found by:
1. express contradiction,
2. omission, or
3. feigned lack of memory. (you are lying that you don’t remember)
admissibility of extrinsic evidence of PINS
admissible ONLY if:
1. Witness is given a chance to explain or deny the PINS at some point; no specific sequencing required; and
2. an adverse party is given an opportunity to examine the witness about the PINS; or
3. if justice so requires.
when courts may exclude extrinsic evidence of PINS
- Witness admits making the PINS (because the witness admitted making the PINS, there’s no need for the extrinsic evidence); or
- It involves a collateral matter – meaning a matter that would not be relevant to the trial, except to impeach the witness.
impeachment by contradiction
A witness can always be impeached with evidence that contradicts the witness’s testimony.
*NOT the witness’s own statement, but rather other evidence or witnesses who contradict the witness’s testimony.
extrinsic evidence for impeachment by contradiction
permitted unless it involves a collateral matter
impeachment by religious belief or opinions
evidence of a witness’s religious beliefs are inadmissible to impeach or rehabilitate credibility
who controls the order of examination of witnesses and presentation of evidence?
the judge
the scope of cross-examination
limited to the subject matter of the direct examination and matters affecting credibility
leading questions
questions that suggests answers.
generally NOT allowed on direct examination
*tip: generally not allowed when the examiner and the witness are on the same side of the case.
exceptions to leading questions
leading questions may be used with:
1. hostile witnesses
2. adverse witnesses (plaintiff questioning D’s witness)
3. child witnesses
4. preliminary background information
5. refreshing recollection of a witness
writing used to refresh memory
*on direct examination, the examiner may jog a forgetful witness’s memory
any writing, photograph, further questioning, or other form of evidence may be used to refresh.
will a writing used to refresh recollection be admitted into evidence?
NO, and therefore authentication of the writing is not required.
hearsay and the best evidence rule will not apply.
rights of the adverse party with a writing used to refresh recollection
-they may inspect the evidence;
-they may cross-examine with the evidence;
-they may show the writing to the jury for comparison (with witness’s testimony); and
-they may introduce relevant portions into evidence (to put the testimony in context; the doctrine of completeness).
exclusion/sequestration of witnesses
at the request of a party, or sua sponte, the court MUST order witnesses excluded from the courtroom, so that they cannot hear testimony of other witnesses
also permits an order that prohibits excluded witnesses from learning about, obtaining, or being provided with or told about trial testimony.
exclusion of witnesses not allowed:
-a party
-ONE person as a non-party’s representatives designated by the attorney (an employee of a corporate party)
-any person whose presence is essential (expert, FBI investigator)
-persons exempted by statute (victim of crime)
