Impeachment

Question 1

Who May Impeach a W?

Answer 1

Any party, including the party that called the witness, may attack the Ws credibility.

Question 2

Character of Untruthfulness (Use of Character Ws)

Answer 2

Using a character W, a Ws credibility may be attacked or supported by:

• testimony about the Ws reputation for having a character for truthfulness or untruthfulness or
• testimony in the form of an opinion about that character
• but specific acts are not allowed.

Question 3

Extrinsic Evidence for Character Evidence of Truthfulness and Untruthfulness

Answer 3

-Except for a criminal conviction under Rule 609, extrinsic evidence is inadmissible to prove specific instances of Ws conduct to attack or support the Ws character for truthfulness.

Question 4

Impeachment with Extrinsic Evidence

Answer 4

• Impeachment by interest, motive, or bias (extrinsic evidence is admissible)
• Impeachment by incapacity/sensory defects (extrinsic evidence is admissible)
• Impeachment by character evidence for truthfulness/untruthfulness (extrinsic evidence is not permitted (for either reputation, opinion, or prior bad acts)).

Question 5

Character of Truthfulness

Answer 5

In order to show a character of truthfulness, one’s character of truthfulness must actually be attacked (bias or interest in outcome of action is not enough).

Question 6

Impeachment by Evidence of Criminal Conviction

Answer 6

Generally, a party may bring up a Ws past crimes to undermine his credibility (show character of untruthfulness/propensity to lie)

Question 7

Prior Criminal Convictions: General Standard

Answer 7

Overall, for felonies that do not involve dishonesty, the probative value of conviction must outweigh its prejudicial effect.

Question 8

Crimes that Are Punishable By Death or Imprisonment for More than 1 Year

Answer 8

• Must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the W is not a D and
• Must be admitted in a criminal case in which the W is a D if –> the probative value substantially outweighs its prejudicial effect

Question 9

Impeachment with Misdemeanor Convictions

Answer 9

Misdemeanor convictions are not admissible to impeach a witness unless they involve a dishonest act or false statement.

Question 10

Crimes with an Element Involving Dishonesty or a False Statement

Answer 10

Any such crime, regardless of punishment, must be admitted.

Question 11

Impeachment by Prior Criminal Conviction: 10-Year Rule

Answer 11

If more than 10 years have passed since the Ws conviction or release from confinement (whichever is later) evidence is only admissible if:

• (Probative value) probative value substantially outweighs its prejudicial effect and
• (Written notice) the proponent gives adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 12

Impeachment by Prior Criminal Conviction: Juvenile Adjudications

Answer 12

Such evidence is admissible only if:

• It is offered in criminal case
• The adjudication was of a W other than the D
• An adult’s conviction for that offense would be admissible to attack adult’s credibility
• Admitting the evidence is necessary to fairly determine guilt or innocence

Question 13

Excluding Extrinsic Evidence of Prior Inconsistent Statement

Answer 13

A court may exclude such evidence if:

• W admits to making the prior inconsistent statement or
• It involves a collateral matter

Question 14

Impeachment of Prior Criminal Conviction that has Been Appealed

Answer 14

A conviction is admissible if an appeal is pending, but evidence of the pendency is also admissible.

Question 15

Impeachment by Contradiction

Answer 15

Impeachment with other evidence that contradicts a W’s statement, is permitted unless it involves a collateral matter

Question 16

Can a Nolo Contendere Plea be Used to Impeach?

Answer 16

Yes, such a plea can be used to impeach in subsequent civil or criminal proceedings.

Question 17

Religious Beliefs or Opinions

Answer 17

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the Ws credibility.

Question 18

Impeachment with Extrinsic Evidence of a Prior Inconsistent Statement

Answer 18

• Extrinsic evidence of a Ws prior inconsistent statement is admissible only if the W is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the W about it.
• But this does not apply to an opposing party’s statements under FRE 801d2.

Question 19

Impeachment by Prior Bad Acts

Answer 19

Specific acts of any testifying W that are probative for their truthfulness are admissible for attacking or supporting the Ws credibility.

-Conviction is not required, but proponent must be able to prove that the prior act occurred by a preponderance of the evidence.

Question 20

Impeachment by Prior Bad Acts: Limitations

Answer 20

Include:

• the bad acts must be probative of truthfulness
• questions must be asked in good faith
• the bad acts cannot be too remote in time (403 test)

Question 21

Rehabilitation

Answer 21

• After a witness is impeached, evidence which detracts from the impeachment is admissible, however, no bolstering is allowed.
• The rehabilitating party does not need to rehabilitate by the same method used to impeach.