Impeachment

Question 1

General Concept of Impeachment

Answer 1

• The proponent of a witness OR the opposing party may try to show flaws in the witness and his/her testimony

• You are trying to destroy the witness’ credibility

• The credibility of a witness may be attached by any party, including the party calling the
witness

• Can impeach your own witness
• In CA, can use prior inconsistent statement not just for impeachment, but also for the truth of the matter/substantively
• In Federal court, can only use to say she is a liar, not that the first statement is the truth of the matter

Question 2

5 types of impeachment

Answer 2

(1) Bias
• Relationship, etc.

(2) Impaired capacity
• Maybe drunk, etc.

(3) Bad character
• Prior bad acts
• Convictions
• Reputation or opinion

(4) Prior inconsistent statements
(5) Contradiction

Question 3

Methods of impeachment

Answer 3

o Bias

• Cross examination
• Extrinsic

o Impaired capacity

• Cross examination
• Extrinsic – bring someone else in to say..

o Character evidence

• Prior bad acts (cross only)
• Convictions (cross and extrinsic)
• Reputation and opinion (extrinsic only)

o Prior inconsistent statements

• Cross examination
• Extrinsic

o Contradiction

• Extrinsic only

Question 4

Impeachment – Bias

Answer 4

Generally trying to show the witness is swayed in his testimony for some reason

• Perhaps relationship to a party
• Perhaps motivation to cut a deal with prosecution
• Cut a plea deal – need to disclose
• Interest in how case comes out can be a bias

Question 5

United States v. Abel

Answer 5

o Abel indicted for robbery w/ 2 accomplices.

o Person on witness stand – bias?
- Want to cross-examine to show bias

• Aryan Brotherhood – prison gang
• Lie for each other on the witness stand - try to bring out part of organization sworn to lie on witness stand and are
biased against all

o Extreme: Most of the time have to do with relationship with one another, or interest in the lawsuit or the property

Question 6

Impeachment – Sensory or Mental Capacity

Answer 6

• Witness only had a brief chance to see or hear what he described
• Witness was under influence of drugs or alcohol which may have altered perception
• Witness has some sort of mental defect which may have altered perception

Question 7

Impeachment – Bad Character

Answer 7

See handout on character for truth and veracity.

(Witness on witness stand and trying to impeach with untruth – trying to show that they are a liar)

• First witness gives straight testimony
• Showing the general character of a witness is untruthful

• A second witness testifies to the opinion or reputation of the first witness for untruthfulness

• Once character of untruthfulness is admitted, opposing side may try to rehabilitate (really honest/truthful person)
• Ends up being cumulative, pissing match
• A third witness testifies to opinion or reputation of first witness for truthfulness
• Prosecutor calls X as sole witness against D. theoretically D can call 10 character witnesses to attack X, but in practice, would not want to.

• Prosecutor could then call 1- character witnesses who say X is truthful, but practically speaking don’t want to

Question 8

Impeachment – bad character contd.

Answer 8

o Cross specific instances of conduct

• Except for a criminal conviction under rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’ conduct in order to attack or support the witness’ character for truthfulness
• But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
  (1) the witness; or
  (2) another witness whose character the witness being cross-examined has testified about.

o Extrinsic evidence forbidden
- Must accept witnesses answer – cannot contradict by calling another witness – no trials within trials

o Examiner must have good faith basis for asking such questions about prior bad acts
- Cannot just make up a story

o Admitted at discretion of judge

Question 9

Video Clip #1

Answer 9

o Defendant on witness stand – trying to impeach him

• Only goes to truth or veracity – that he is a liar on witness stand
• Not trying to show bad character or that he is a violent man – beingviolent does not make you a liar on the witness stand – improper for this

o Discharged from the army for psychiatric reasons
- Might come in to show whatever his perception of what happened may be altered by a mental capacity

o Beat up an officer with a shovel
- Prior act of violence – cannot bring in even under character evidence

o Arrested for assaulting an aid
- Prior act of violence – don’t come in

o Punch attorney in face
- Prior act of violence – don’t come in

o Isn’t it true you lied to a congressional aide?
- Not okay – cannot cross examine witness himself about own prior bad acts. Only reputation or opinion of the witness by someone else.

Question 10

Video Clip #2

Answer 10

o Going to bias
- Maybe get a better deal for testifying?

• If he was offered a better deal, would show bias – jailhouse snitch

o For acts of dishonesty

• Assault with deadly weapon – act of violence – can’t come in
• Arson – act of violence – can’t come in

Question 11

Prior Convictions - General Theory

Answer 11

Someone convicted of a crime would have no issue lying on a witness stand, despite being under oath. Oath means less to them.

Question 12

Prior Convictions - General Rule

Answer 12

• Impeach with crimes “punishable by death or imprisonment in excess of one year” (felonies), subject to balancing test by judge
• Impeach with ANY CRIME involving “dishonesty or false statement” (even misdemeanors)

Question 13

Prior Convictions - Break Down

Answer 13

• Civilian witness on stand – court must balance whether the conviction’s probative value for impeachment purposes is “substantially outweighed” by the danger of unfair prejudice

• Ex. Involuntary manslaughter – fraternity accident – deserve to be called a liar on the witness stand? Maybe not. Weigh that.

• Defendant on witness stand – court must balance whether the conviction’s probative value for impeachment purposes is “outweighed” by the danger of unfair prejudice

Crime involving dishonesty means:

• The elements of the crime itself proving a dishonest act or false statement (ex. forgery, perjury, embezzlement, etc.)
• Or within the course of the crime the perpetrator did a dishonest act or made a false statement for purposes of completing the crime (ex. theft by fraud)
• No balancing test by judge
• Prior conviction must be admitted

Question 14

Time limit for convictions

Answer 14

Time limit: 10 year rule. If prior conviction is older than 10 years, generally not going to come in.

• Is conviction date; or
• Date of release from confinement from that conviction
• Within 10 years of this current matter?

Question 15

Step by Step Approach to Priors (SEE HANDOUT)

Answer 15

Step 1: Is conviction or date of release from confinement from that conviction within 10 years?
• Judge can make exception
• If yes, go to step 2. If no, you’re done.

Step 2: Is the conviction

• a felony (crime punishable by death or imprisonment in excess of one year); or
• a crime involving false statement or dishonesty as an element or circumstances of crime?
• If yes – go on to step 3, otherwise done.
• Crime of dishonesty: perjury, false statement, criminal fraud, embezzlement, false pretenses, counterfeiting, forgery, filing false tax returns
• Theft crimes may or may not involve dishonesty or false statements – petty theft, robbery, or receiving stolen goods may not qualify unless actual statements made by an accused

o Ex. said let me borrow that – knew you weren’t borrowing it, but stealing it – elevate to crime of dishonesty

o Rap sheet will not have enough info to figure this out – could say petty theft even though it was a theft with false statements – used false statements in course of the theft

Step 3: Is the conviction for a crime where the prosecution must prove false statement or dishonesty as an element?

• If YES, done – Crime comes in for impeachment without any further steps. Judge has no discretion to keep that out. Can be felony or misdemeanor. Does not matter whether defendant or witness. Even if dishonesty not an element of the crime, look to see if make dishonest statement in course of the crime – that elevates it for purposes of impeachment.
• If no, go to step 4

Step 4: Is the witness also the accused in a criminal case? (is it a witness or the defendant?)
• If No – go to step 5
• If Yes – go to step 6

Step 5: Is the conviction’s probative value “substantially outweighed” by the danger of unfair prejudice?

• Judge has to decide is it substantially outweighed?
• If yes – conviction not admissible
• If no – conviction is admissible
• Ex. defendant on trial for robbery, witness takes stand and has prior robbery in her history – not going to be as concerned that jury will hear of witness’ robbery and
somehow equate that to convict defendant?
• Ex. involuntary manslaughter – could be an accident – do you allow impeach?
• **If D on witness stand – do not answer with substantially answer – that is for a witness.

Step 6: Is the conviction’s probative value outweighed (not substantially outweighed) by its prejudicial effect? (for defendant)

• If yes – conviction not admissible
• If no – conviction is admissible
• Weigh – probative value of telling jury he might be a liar v. jury wrongfully convicting
• If on trial for robbery and had prior robbery – probably allow impeachment but change name to something else. Practical reality, defendant has to think twice before take witness stand because going to be impeached.

Robbery is a crime of violence, not necessarily a crime of dishonesty

Question 16

Impeachment – Prior Inconsistent Statement - General Theory

Answer 16

Witness cannot keep story straight, says one thing on witness stand but said another thing prior to testifying. Witness cannot be believed because stories are inconsistent.

Question 17

Impeachment – Prior Inconsistent Statement - Procedure

Answer 17

Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

Question 18

Impeachment – Prior Inconsistent Statement - Example

Answer 18

o If witness A is on the witness stand, you attack the witness A directly with the prior inconsistent statement.

• “Blue car ran the green light”

• Confront witness: isn’t it true you told the officer/whoever that the red car ran the green light

o If witness A admits making the statement, you are done. Got inconsistent statement in. Can use in argument.

o If the witness A denies making the statement you may call Witness B, the one who received the contradicting statement originally. Witness B will testify as to the contradicting statement.

• If you choose NOT to attack witness A while on the witness stand, you must NOT excuse witness A from the proceedings

o Can ask witness B: isn’t it true that witness A said this to you. Okay as long as witness A can come back/be recalled to explain inconsistency. Must have opportunity to explain the inconsistent statement.

• You may directly call witness B who received a contradicting statement to the witness stand to give that statement of witness A
• Witness can go home/be on call. Cannot say take plane to Paris tomorrow.

o The opposing party may recall witness A to the stand to explain the inconsistencies

Question 19

Harris v. New York

Answer 19

Cops interviewed defendant in course of investigating crime and violated Miranda rights. For case in chief, cannot bring in b/c in violation of Miranda. Defendant gets on witness stand and lies – makes statements completely contradictory to what told the cops. Prosecution confronts – isn’t it true you told the cops A, B, C. Defendant objected. Court rule: can use them for impeachment, to argue that defendant is a liar on the witness stand, but not to say prior statements were in fact true. Won’t let defendant benefit from procedural windfall. Need to give jury a limiting instruction – can only use to determine whether defendant’s testimony truthful or not, not for underlying elements.

Question 20

Jenkins v. Anderson

Answer 20

Miranda rights only apply if you are subject to custodial interrogation. If they don’t give you Miranda rights or you aren’t subject to custodial interrogation and you don’t say anything in situation where you should have, that could be a problem. Using defendant’s pre-Miranda silence to impeach him on witness stand.

Question 21

United States v. Havens

Answer 21

Search and seizure. Something obtained through illegal search and seizure. Cannot lie about whether in possession of something on the witness stand – it will come in to impeach you.

Question 22

Contradiction

Answer 22

You have opposing evidence. Witness A on witness stand says the blue car ran the green light. Witness B says red car ran the green light. Can use to impeach the first witness. If separate witness, can argue truth of matter as well. People see it differently.

Question 23

Impeachment – Rehabilitation

Answer 23

• General theory: Try to repair credibility after witness has been attacked

• General rule: Must have attack on character of witness before you can rehabilitate the
situation

• Cannot bolster your own witness until that witness has been attacked on cross examination
• Exceptions: prior identification allowed (non-hearsay – if have witness on witness stand, can ask about current id in court or a prior id made outside of court previously, which bolsters how many times person has made an id), fresh complaint doctrine (don’t need to know)

Question 24

Types of rehabilitation

Answer 24

(1) Let witness explain
(2) Evidence of good character of truthfulness – opinion or reputation
(3) Prior consistent statements (only if credibility is attacked – look into the rules for that)

Question 25

Impeachment – Forbidden Attacks

Answer 25

Religious beliefs or opinions: Evidence of a witness’ religious beliefs or opinions is not admissible to attack or support the witness’ credibility