Impeachment

Question 1

Impeachment - General Concepts

Answer 1

• impeachment = discrediting w
• when ev is admissible only to impeach, it’s not being offered as substantive ev (can’t be used to prove some fact at issue in the case
  -> only admissible to show w can’t be trusted

Question 2

Accrediting or Bolstering

Answer 2

• generally prohibited
• party generally not allowed to bolster or accredit testimony of their w UNTIL w has been impeached

Question 3

Exceptions to Rule Against Bolstering

Answer 3

• in certain cases, party may offer ev that w made a timely complaint (ex: in a sexual assault case) or a prior statement of id (usually id’ing def as perpetrator) even if tends to bolster in-court testimony
• prior id may also serve as substantive ev that the id was correct

Question 4

Who May Impeach?

Answer 4

• under Fed Rules, w may be impeached by ANY party, including the party who called them
  -> keep in mind used to not be able to impeach own w’s, so exam often includes this as wrong answer

Question 5

Impeachment Methods - Overview

Answer 5

W may be impeached by either:
1) cross-examination OR
2) extrinsic ev

• certain grounds allow cross-exam only, others require you to first lay foundation on cross

Question 6

Impeachment by Cross-Examination - General Concept

Answer 6

• eliciting facts from w that discredit their own testimony

Question 7

Impeachment by Extrinsic Ev - General Concept

Answer 7

• calling other witnesses or introducing docs that prove the impeaching facts

Question 8

Impeachment Methods Involving Facts Specific to Current Case

Answer 8

• prior inconsistent statements
• bias or interest
• sensory deficiencies
• contradictory facts

Question 9

Impeachment Methods Involving General Bad Character for Truthfulness

Answer 9

• opinion or reputation ev of untruthfulness
• prior convictions
• bad acts

Question 10

Prior Inconsistent Statements - Overview

Answer 10

• party may show, by cross-examination or extrinsic ev, that the w has, on another occasion, made statements inconsistent w/ their present testimony
• to prove the statement by extrinsic ev, proper foundation must be laid + the statement must be relevant to some issue in the case

Question 11

Prior Inconsistent Statements - Wrinkles Re Inconsistency

Answer 11

• prior statement that omits fact asserted during current testimony may constitute inconsistency if would’ve been natural for w to include fact in statement if they believed it to be true
• lack of memory on stand generally not inconsistent w/ prior statement re that fact
  -> BUT if w remembers on stand but didn’t remember in prior statement, earlier lack of memory is generally considered inconsistent

Question 12

Prior Inconsistent Statements - When Admissible as Substantive Evidence

Answer 12

• usually hearsay -> admissible only for impeachment purposes
• BUT can admit as substantive ev if the w is currently testifying + the prior inconsistent statement was made under oath at a prior proceeding (b/c qualifies as nonhearsay in that case)

Question 13

Extrinsic Ev + Prior Inconsistent Statement

Answer 13

Extrinsic ev can be introduced to prove a prior inconsistent statement only if, at some point:
- w is given an opp to explain or deny the statement AND
- adverse party is given opp to examine w about the statement

-> under Fed Rules, opp to explain or deny can be given before or after introduction of extrinsic ev

Question 14

Exceptions to Req Re Opp to Explain/Deny Prior Inconsistent Statement

Answer 14

• doesn’t apply if prior inconsistent statement is also an opposing party’s statement
• don’t need foundation if impeaching a hearsay declarant w/ declarant’s inconsistent statement (since hearsay dec not always a testifying w)
• court can dispense w/ foundation req where justice requires

Question 15

Bias or Interest

Answer 15

• ev that w is biased or has interest in outcome of case tends to show w has a motive to lie

Question 16

Bias or Interest - Foundation for Extrinsic Ev

Answer 16

• b/c impeachment w/ bias not specifically addressed by fed rules, much is left to discretion of court
• majority rule = before w can be impeached by extrinsic ev of bias or interest, they must first be asked on cross about the facts that show bias/interest
• court has discretion to permit the extrinsic ev even if w admits the bias

Question 17

Sensory Deficiencies

Answer 17

• w may be impeached by showing that their faculties of perception + recollection were so impaired as to make it doubtful that they could’ve perceived those facts
• w may also be impeached by showing they had no knowledge of the facts to which they testified

Question 18

Sensory Deficiencies - Method of Impeachment

Answer 18

• can do either on cross or w/ extrinsic ev
• no foundation req for proving sensory deficiency w/ extrinsic ev (don’t need to confront w w/ the impeaching fact)

Question 19

Contradictory Facts

Answer 19

• not specifically addressed in fed rules
• cross-examiner, while questioning w, can try to make w admit they lied or were mistaken about some fact they testified to during direct examination
• if w admits the mistake or lie, they’ve been impeached by contradiction
• BUT if w sticks to story, q arises re whether can impeach w/ extrinsic ev -> can use to prove contradictory fact UNLESS the contradictory fact = collateral (i.e. no significant relevance to the case or w’s credibility)

Question 20

Opinion or Reputation Evidence of Untruthfulness

Answer 20

• w can be impeached w/ rep or opinion ev of own bad character for truthfulness -> to suggest not telling truth on stand
• accomplished by calling character w to testify re target w’s bad rep or character w’s low op of target w

Question 21

Impeachment - Proof of Prior Conviction

Answer 21

• w may be impeached by proof of a conviction for certain crimes
  -> arrest or indictment not sufficient
  -> BUT pending review or appeal doesn’t affect use of conviction for impeachment

Question 22

Prior Conviction of Crime - Options Re Type of Crime

Answer 22

• any crime involving dishonesty or false statement
• felony not involving dishonesty or false statement

Question 23

Rules for Impeachment By Crime Involving Dishonesty/False Statement

Answer 23

• w can be impeached by ANY crime (felony or misdemeanor) involving act of dishonesty or false statement
• court has no discretion to bar impeachment by these crimes
• pretty narrowly restricted -> crimen falsi only (perjury, criminal fraud, embezzlement, false pretenses, etc)

Question 24

Impeachment by Felony

Answer 24

• w may be impeached by felony not involving dishonesty, BUT ct has discretion to exclude the conviction

Balancing tests:
- if w= crim def, ct excludes conviction if pros hasn’t shown probative value outweighs prejudicial effect
- for all other w’s, court excludes conviction if determines probative value is substantially outweighed by prejudicial effect (standard Rule 403 test)

Question 25

Prior Crim Convictions - Remoteness

Answer 25

- generally, if more than 10 yrs since date of conviction or date of release from confinement (whichever later) the conviction is inadmissible -BUT court may admit if: 1) probative value substantially outweighs prejudicial effect (reverse 403) AND 2) proponent gives adverse party reasonable written notice of their intent to use it

Question 26

Prior Crim Conviction - Methods of Establishing

Answer 26

- usually shown by either direct or cross or by introducing record of judgment - no foundation necessary - if party introduces ev of own prior conviction, can't later claim on appeal that the conviction was erroneously admitted

Question 27

Prior Crim Conviction - Effect of Pardon

Answer 27

- conviction can't be used to impeach w if was subject to pardon or equiv procedure AND either: -> pardon was based on rehabilitation + w hasn't been convicted of subsequent felony OR -> pardon was based on innocence (irrespective of any subsequent convictions)

Question 28

Juvenile Convictions

Answer 28

- generally not admissible for impeachment purposes - in crim case, judge has discretion to admit ev of juvenile offense committed by w other than the accused if ev would be admissible to attack credibility of an adult + if ev is necessary to determination of accused's guilt or innocence

Question 29

Impeachment - Constitutionally Defective Convictions

Answer 29

- conviction obtained in violation of def's con rights = invalid for all purposes, including impeachment

Question 30

Bad Acts Involving Untruthfulness

Answer 30

- subject to discretionary control of trial judge, w may be interrogated upon cross wrt act of misconduct if act is probative of truthfulness (i.e. an act of deceit or lying) - cross-examiner must have a good-faith basis to believe w committed the misconduct

Question 31

Bad Acts Involving Untruthfulness - Extrinsic Ev

Answer 31

- extrinsic ev of the bad acts is not permitted -> this method of impeachment can be accomplished only by cross-examination of the witness - cross-examiner can't refer to any consequences w may have suffered as result of bad act -> CAN'T ask about arrests

Question 32

Impeachment on Collateral Matter

Answer 32

- where a witness makes a statement not directly relevant to the issue in the case, rule against impeachment on collateral matter prohibits a party from proving the statement untrue either by extrinsic ev or by prior inconsistent statement

Question 33

Impeachment of Hearsay Declarant

Answer 33

- credibility of a hearsay declarant may be attacked (and if attacked, supported) by ev that would be admissible if dec had testified as a witness - can be impeached by any of the methods discussed - need not be given opp to explain or deny prior inconsistent statement - party against whom out-of-court statement offered can call hearsay dec as a witness + cross-examine re the statement

Question 34

Rehabilitation

Answer 34

Witness who has been impeached may be rehabilitated by: - w on redirect may explain or clarify facts brought out on cross - good character for truthfulness (only rep + op) -> only available if attacked bad character for truthfulness - prior consistent statement