Witnesses / Impeachment

Question 1

What three kinds of witnesses are there, generally?

Answer 1

Testifying witnesses
Impeaching witnesses
Rehabilitating witnesses

Question 2

How can a testifying witness’s prior bad acts (specific conduct, not a criminal conviction) be brought to the court’s attention for impeachment purposes?

What about bad acts committed by the person about whom the witness is testifying?

Answer 2

QUESTION #1:
Only on cross-examination. 608(b). The prosecutor must have a good faith basis for asking about the acts, and the prior bad acts must relate to truthfulness.

QUESTION #2: That’s fine—same as above.

Question 3

Say witness A’s credibility has been attacked by the other side can the rehabilitating witness offer reputation, opinion, and/or specific acts testimony?

Answer 3

Only reputation or opinion. Rule 608(a).

Question 4

What are the four kinds of prior criminal convictions that can be admitted under 609 to impeach a witness?

Answer 4

(1) Crimes of dishonesty
(2) Crimes in the jurisdiction, punishable by death or 1+ yrs of imprisonment
(3) Remote convictions (10+ years ago)
(4) Juvenile convictions

Question 5

Under 609, when may a crime of dishonesty be admitted for impeachment purposes?

Answer 5

Basically always. Presumably, 401/403 would still apply, but that’s it.

Question 6

Under 609, when may a crime in the jurisdiction, punishable by death or 1+ yrs of imprisonment, be admitted for impeachment purposes?

Does the crime have to relate to dishonesty?

Answer 6

QUESTION #1:
IF the witness is a defendant: NOT admissible in a civil case; admissible in a criminal case ONLY IF the probative value outweighs prejudice.
IF the witness is not a defendant: must admit if passes 403 balancing (civil or criminal).

QUESTION #2:
No.

Question 7

Under 609, when may a remote conviction be admitted for impeachment purposes?

How old does a crime have to be do qualify as “remote”?

Answer 7

QUESTION #1: 
ONLY IF (1) probative value substantially outweighs prejudicial effect (note—reverse of 403), and (2) the proponent gives notice.  

QUESTION #2:
10 years have passed since either (1) the conviction, or (2) release from confinement, whichever is LATER.

Question 8

Under 609, when may a juvenile conviction be admitted for impeachment purposes?

Answer 8

ONLY IF:

(1) Offered in a criminal case
(2) The witness is NOT a defendant
(3) An adult’s conviction of same would be admissible
(4) It’s necessary to fairly determine guilt or innocence.

Question 9

Is evidence of a crime under 609 admissible if the crime has been pardoned?

Answer 9

No.

Question 10

What is the procedure for using a writing to refresh a witness’s memory?

Answer 10

(1) Show the writing to the witness and let them read it silently.
(2) Ask if their memory is refreshed and they can now testify based on their present recollections.
(3) If the witness still doesn’t recall, try to have the writing admitted as a recoded recollection under the hearsay exception.

Question 11

What are the requirements for admitting extrinsic when impeaching a witness with a prior inconsistent statement (a.k.a. “contradiction impeachment”)?

Do you have to disclose the evidence to opposing counsel?

Answer 11

Admissible ONLY IF the witness is given an opportunity to explain or deny the inconsistent statement, and an adverse party has a chance to examine the witness about it. Also CANNOT pertain to a “collateral” matter.

May have to disclose the evidence if opposing counsel requests it.

Question 12

Can a character witness offer reputation/opinion testimony supporting a testifying witness’s credibility BEFORE the testifying witness’s credibility has been challenged?

Answer 12

No. 608(a).

Question 13

Can an impeaching witness attack the credibility of someone who hasn’t taken the stand yet?

Answer 13

No, not according to Vignette 21. This seems to make sense; the order should be:

(1) Testifying witness
(2) Impeaching witness
(3) Rehabilitating witnesses

Question 14

What tools does an impeaching witness have for attacking the credibility of a testifying witness?

Answer 14

(1) Reputation and opinion re truthfulness. 608(a). NOT specific acts re truthfulness.
(2) Prior convictions. 609.
(3) Prior inconsistent statements. 613.
(4) Showing bias. 607 (attacking “credibility” generally)

Question 15

If the witness is a defendant, what limitations exist for using prior convictions for impeachment purposes?

Answer 15

(1) IF crime of dishonesty, no limitation
(2) IF crime punishable by death/1+yrs, THEN: (a) IF CIVIL case, can’t use prior convictions at all; (b)403+ balancing applies
(3) No juvenile convictions

Question 16

If the witness is a defendant, what limitations exist for using prior convictions for impeachment purposes?

Answer 16

(1) IF CIVIL case, can’t use prior convictions at all
(2) 403+ balancing applies
(3) No juvenile convictions

Question 17

What are the only instances a cross-examiner inquiring about prior specific instances can bring in extrinsic evidence?

Answer 17

(1) A 609 conviction
(2) Bias (presumably, since this would come in under 607, and there’s no real limit on extrinsic evidence limitation)
(3) Inconsistent statement under 613 (but have to allow the witness to explain or deny)

Question 18

What are opposing counsel’s “options” when a party uses a writing to refresh a witness’s memory? When are these options available?

Answer 18

QUESTION #1:

(1) Inspect the writing at a hearing
(2) Admit any portion related to the witness’s testimony
(3) Have unrelated portions removed before refreshing

QUESTION #2

(1) If the writing is consulted during testimony
(2) If justice requires (if consulted before testifying)