Impeachment

Question 1

What is substantive evidence

Answer 1

Evidence offered to support a fact in issue**, as to the **necessary elements of the case (vs. evidence that goes to procedural or collateral issues).

Question 2

Ex: hearsay v. nonhearsay

In a defamation case, P offers a statement by D that “P is a thief”.

What type of statement is this?

Answer 2

Non-hearsay

P is not offering the statement to prove that he is, in fact, a thief.

Rather, as substantive evidence of slander. As such, the statement is not being offered to prove the TOMA (that plaintiff is a thief), and the statement is therefore non-hearsay.

Question 3

Ex: hearsay v. nonhearsay

D offers evidence of a statement made by P “D, I am going to attack you!!” as a claim for self-defense.

What type of statement is this? hearsay v. nonhearsay?

Answer 3

Non-hearsay

D is not offering the statement to prove the truth of whatever was said to D*, but rather to prove that D believed he would be attacked, and therefore was reasonable in defending himself against the attack –> which is substantive evidence as to why D acted the way he did.

* if it was being offered to prove the TOMA it would be to prove whether it was true that P said that to D

Question 4

What is impeachment?

Answer 4

Evidence used to discredit a witness’s testimony

Question 5

What is the point of offering evidence to impeach a witness?

Answer 5

To show that the witness CANNOT be trusted

Question 6

Evidence offered to impeach a witness is NOT offered as what type of evidence?

Answer 6

it is NOT offered as substantive evidence

Question 7

What is bolstering?

Answer 7

An attempt to strengthen the testimony of a witness

Question 8

When can a witness’s testimony be strengthened?

Answer 8

When the witness has been impeached

Question 9

When the witness has been impeached their reputation can be ____________________ ?

Answer 9

Rehabilitated

Question 10

Is bolstering permissible?

Answer 10

Generally NO

Question 11

List (2)

When IS bolstering allowed

Answer 11

To offer evidence: (1) That witness made a timely complaint (i.e. sexual assault case) (2) of a Prior Statement of Identification (i.e. identify D as perpetrator of crime)

Question 12

Which party can impeach a witness?

Answer 12

Any party!

(even the party that called the witness to the stand)

Question 13

Old CL

When a party impeaches their own witness AVOID these wrong answer choices

Answer 13

CL says witness cannot be impeached unless:

1. W is an adverse party or identifies with an adverse party
2. W is hostile/uncooperative
3. W is one whom party is required by law to call
4. W gives surprise testimony that is harmful to party calling them

Question 14

List (2)

Through what methods can witness be impeached

hint: think of when the witness is on the stand and being asked Q

Answer 14

W can be impeached by:

1. Cross-examination
2. Extrinsic Evidence - sometimes (C-CRISP scenarios)

Question 15

“C-CRISP”

What impeachment methods allow the use of extrinsic evidence?

When can you C-CRISP (aka burn aka impeach) the W?

Answer 15

These impeachment methods allow the use of EE

1. Conviction of crimes
2. Contradictory facts
3. Reputation + opinion for untruthfulness
4. Bias/Interest
5. Sensory deficiencies
6. Prior inconsistent statement

Question 16

If extrinsic evidence is to be used in one of the five CRISP scenarios, then that evidence cannot be:

Answer 16

COLLATERAL

Question 17

How can cross-examination be used to impeach a witness?

Answer 17

Elicit facts from W that will discredit the W’s testimony

**Remember** Same party can impeach its own witness in which case it will be through direct examination

Question 18

List (2)

How can extrinsic evidence be used to impeach a witness?

Hint: who/what can be used?

Answer 18

1. Calling other witnesses or
2. Introducing certain documents that prove impeaching facts

Question 19

“FIBS” , “CrOB” list (7)

What are the impeachment methods

Answer 19

Fact specific to current case: (“FIBS” or “CIBS”)

1. Contradictory Facts
2. Prior inconsistent statement *
3. Bias or Interest to misrepresent*
4. Sensory Deficiencies

General bad character for truthfulness (“CrOB”)

1. Conviction of Crime*
2. Opinion or Reputation for Untruthfulness*
3. Bad Acts Involving truthfulness or untruthfulness*

* most commonly tested

FIBS - like lies or CIBS - like sibs , which ever one you remember better

CrOB - pronounced like Krob, like Rob Jr. Kardashian who posted revenge corn of Blac Chyna, and whath he did was a bad act + untruthful so, that’s how youll remember CrOB

Question 20

*foundation*

How is a witness impeached by prior inconsistent statements

and what methods (ie what type of examination) - hint 2 methods

Answer 20

Through use of extrinsic evidence or cross-examination to show that W has made prior statements that are inconsistent with the present testimony

Question 21

When using _______ to impeach a witness through prior inconsistent statements, _________ needs to be laid

Answer 21

extrinsic evidence; proper foundation

Question 22

When using extrinsic evidence to impeach a witness through prior inconsistent statements, need:

Answer 22

1. proper foundation -and-
2. prior statement relevant to some issue in current case

Question 23

*hearsay exception*

Are prior inconsistent statements hearsay?

Answer 23

Yes unless

1. made under oath which case become nonhearsay -OR-
2. used to impeach - still hearsay but permissible for impeachment purposes

Question 24

When a PIS is made under oath this means that it was made under?

and what does this make the PIS?

Answer 24

pains and penalties of perjury at a prior hearing, trial, depo, or other proceeding making it admissible nonhearsay

Question 25

At deposition: Witness says "Car ran a red light" On the stand: Witness says "I dont remember if car ran red light" **Prior inconsistent statement?**

Answer 25

(*generally)* **NO** (*unless ct thinks witness is faking memory loss)*

Question 26

If a fact is **OMITTED** in a **prior** statement and then **MENTIONED** in the **current** testimony, is this an instance of a prior inconsistent statement?

Answer 26

It's a PIS **ONLY IF:** 1. it would have been **normal/expected** to mention that fact in the ***prior*** statement **and** 2. the witness believed that fact to be **true**

Question 27

At deposition: Witness says "I dont remember if car ran red light" On the stand: Witness says "Car ran a red light" **Prior inconsistent statement?**

Answer 27

*(generally)* **YES!** PIS **ONLY IF:** 1. it would have been **normal/expected** to mention that fact in the ***prior*** statement **and** 2. the witness believed that fact to be **tru**

Question 28

When can **prior inconsistent statements** be used?

Answer 28

because PIS are hearsay... can only be used 1. if PIS was made under **oath** *in which case it's **nonhearsay** and therefore admissible* **-OR-** 2. **IMPEACH** a witness

Question 29

If prior inconsistent statements are offered **under** **oath** then...?

Answer 29

they become **nonhearsay** and are admissible as **substantive evidence**

Question 30

# List (2) How is **_foundation_** ***laid*** to use **extrinsic evidence** to prove PIS?

Answer 30

At ***some*** point ***before** or **after** introducing extrinsic evidence:* 1. **Witness** is given the opportunity to **explain or deny** statement - *witness = explain or deny* 2. **Adverse party** given the opportunity to **examine** the witness about the statement - *adverse = examine*

Question 31

# list 2 To prove a PIS by **extrinsic evidence** the W? the evidence?

Answer 31

1. The W must be given opportunity to **explain** or **deny** 2. The evidence must be **relevant** to *some* issue in the case

Question 32

Answer 32

Question 33

# \*exception\* List (3) When is **_foundation_** for **extrinsic evidence** for PIS **NOT needed?**

Answer 33

1. If PIS is the **opposing party's statement** 2. PIS is that of a **hearsay** **declarant**, foundation **not** need to **impeach** him 3. When **justice so requires** (*i.e. witness has left stand and unavailable when inconsistent statement was discovered*

Question 34

How is a witness impeached by **bias/interest**

Answer 34

Through evidence that witness is **biased** or has an **interest** in outcome of case *(and tends to show W has motive to lie)*

Question 35

Is foundation needed for **extrinsic evidence** to impeach a witness on **bias** or **interest?**

Answer 35

FRE are silent - *court's discretion*

Question 36

How is ***foundation*** for impeaching a witness on **bias or interest** laid? (*majority rule)*

Answer 36

Witness must **first** be asked about **_facts**_ that _**show_ bias or interest** during **cross-examination**

Question 37

# 💡 TIP, "CRISP" Can the court admit **extrinsic evidence** if the witness **admits** or **denies** to bias or interest

Answer 37

**YES** ## Footnote **(***W says, yes I do have these reasons to slant testimony)* **💡 TIP:** can use bias/interest to introduce evidence that may otherwise be inadmissible (*i.e. arrests, liability insurance)*

Question 38

# "CRISP" How is a witness impeached by ## Footnote **sensory deficiencies?**

Answer 38

Show that witness's **perception** or **recollection** of events was **impaired** through: 1. Use of **extrinsic evidence** **-OR-** 2. **Questions** during **cross-examination** to (*drunk, drugged, bad eyesight, bad hearing, bad memory etc)*

Question 39

Is **_foundation_** needed for **extrinsic evidence** **​**to impeach a witness on **sensory deficiencies?**

Answer 39

**No**

Question 40

How is a witness impeached by **contradiction?**

Answer 40

Cross-examiner can make witness admit they **lied** or were **mistaken** about some facts they testified to during ***direct*** examination. ## Footnote **ADMIT → CONTRADICTION → IMPEACHMENT**

Question 41

# "CRISP" If the witness does **NOT _contradict_** themselves, can **extrinsic evidence** be used to impeach them?

Answer 41

**YES**, unless the contradictory fact is ***collateral*** (aka no significant relevance to **case** or witness's **credibility**)

Question 42

Can **specific acts of conduct** be used to **explain** ## Footnote **reputation or opinion evidence for untruthfulness?**

Answer 42

**NO**

Question 43

# Reputation or opinion testimony; "CRISP" Can **extrinsic evidence** be used to **prove** **reputation or opinion** **for untruthfulness**?

Answer 43

**YES**

Question 44

# Bad acts for un/truthfulness If the W **denies** the **specific** **bad** **act** for un/truthfulness, can **extrinsic evidence** be brought in?

Answer 44

**NO!**

Question 45

What types of **crimes** are **permissible** to admit as evidence to impeach a witness on the basis of **conviction?**

Answer 45

1. **Crimes** involving **dishonesty** or **false statements** (*i.e.lying that the light was red*) 2. ***_Felonies_*** which **DON'T** involve dishonesty/false statements 1. and will likely need to show **probative \> prejudicial**

Question 46

What crimes are considered to involve **dishonesty** or **false statements?** *hint: aka crimen falsi*

Answer 46

Crimes which involve **uttering** or **writing of false words** *Examples: perjury, false statements, criminal fraud, embezzlement, false pretenses*

Question 47

Felonies **not** involving crime or dishonesty _________ admissible

Answer 47

**are NOT automatically** admissible

Question 48

What type of test is used to admit felonies which **do not** include dishonesty or false statement admitted as evidence for **conviction of crime** to impeach a witness?

Answer 48

by using a balancing test

Question 49

**For** **witness who is a _defendant_** what is the ***balancing test*** to impeach them based on felonies which **do not** involve dishonesty/false statement

Answer 49

prosecution has to show **probative \> prejudicial** if prosection ***fails*** to show then **inadmissible**

Question 50

# Hint: this is the standard 403 balancing test **For a witness who is a someone** ***_other than_*** **a defendant** what is the ***balancing test*** to impeach them based on felonies which **do** **not** involve dishonesty/false statement

Answer 50

court **exclude** if: probative \< prejudicial probative **substantially outweighed by** prejudicial, then **excluded**

Question 51

Are **past convictions** (crimes -**OR-** felonies) involving or not involving crime/dishonesty admissible?

Answer 51

If ***more*** **than 10 years have** passed, (*generally)* **NO** **10 years =** since date of conviction or release (which ever is **_later_**) *conviction is considered **too** remote*

Question 52

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was: ## Footnote **convicted 8 years ago for misdemeanor of tax fraud?**

Answer 52

**YES**. Tax fraud is a crime of dishonesty

Question 53

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was: ## Footnote **released 9 yrs ago from prison for misdemeanor of marijuana possession?**

Answer 53

**NO.** not a crime of dishonesty and not a felony

Question 54

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was: ## Footnote **convicted 2 yrs ago for misdemeanor of shoplitfing**

Answer 54

**NO**. not a crime of dishonesty and not a felony

Question 55

D prosecuted for arson. D testifies on his own behalf, saying fire was accident. Can P ask D if he was: ## Footnote **convicted 5 yrs ago for felony assault**

Answer 55

Felony assault = Felony prosecution needs to show that **probative \> prejudicial**

Question 56

# List (2) Under what conditions may the court admit a prior conviction **older than 10 yrs?**

Answer 56

Under **extraordinary circumstances** where: 1. probative **\>\>\>** prejudicial (*reverse 403)* 2. Proponent gives other party **_reasonable_ and _written_ notice** of intent to use it

Question 57

Is **_foundation_** needed for **extrinsic evidence** to impeach a witness on **conviction of crimes**? what are prior convictions shown through?

Answer 57

**NO** ## Footnote prior conviction usually shown through **direct or cross-examination** (*+ other methods)*

Question 58

Why might a party introduce evidence of its **own prior conviction?**

Answer 58

really just to get the upper hand of having the jury hear it from you rather than through cross-examination

Question 59

If a party brings up their *own* prior conviction what can/can't they do in regards to its admission?

Answer 59

Claim on appeal that it was erroneously admitted

Question 60

Is a prior conviction admissible if it was pardoned?

Answer 60

**NO.** **Cannot** be used Need pardon + 1. pardon based on **rehabilitation** **_AND_** witness **has not** been convicted of **subsequent** felonies (*bc if subsequent felony then you weren't rehabbed)* 2. pardon based on **innocence** (*irrespective of subsequent convictions )*

Question 61

Are **juvenile convictions** admissible?

Answer 61

(*generally)* **NO** **unless**... 1. attacking credibility of **adult, _and_** 2. evidence necessary to determine accussed's guilt or innocence

Question 62

Is a constitutionally defective conviction admissible?

Answer 62

**NOOOO!!!** ## Footnote *invalid for _ALL_ purposes inc. impeachment*

Question 63

How is a witness impeached by ## Footnote **bad acts involving untruthfulness**

Answer 63

Through **cross-examination** about an act of misconduct that is **_probative of truthfulness_** *(act of deceit or lying)* ## Footnote *Subj to discretion of judge*

Question 64

If the cross examiner wants to impeach a witness based on **bad acts involving untruthfulness**, what basis is needed?

Answer 64

Good-faith basis that the witness committed the misconduct

Question 65

# \*foundation\* Is foundation needed for **extrinsic** **evidence** to impeach a witness on **bad acts involving untruthfulness?**

Answer 65

**NOOO!!!!!** **Extrinsic evidence _NOT_ allowed**

Question 66

Through what method can a witness be impeached regarding **bad acts involving untruthfulness?**

Answer 66

**only through** **cross-examination** *(extrinsic evidence _NOT_ allowed)*

Question 67

When impeaching a witness based on **bad acts involving untruthfulness** what is the cross-examiner **not** allowed to refer to ## Footnote bonus point: explain rationale

Answer 67

**consequences** the W faced bc of those bad acts (*i.e. **cant** say "isn't it true that you were arrested bc of embezzelement")\** ## Footnote **rationale**: consequence is 3rd persons *opinion* that W committed act aka **extrinisic evidence** **\****can say "isnt it true you embezzeled money from your employer?" but **cant** ask where you arrested*

Question 68

Remember bad acts asking only about the **ACT** not the consequences

Answer 68

--

Question 69

How is impeachment on **collateral matters** treated?

Answer 69

cannot provide extrinsic evidence or use PIS because it's a **collateral matter** so prosecution/defense won't spend time dealing with the collateral info

Question 70

How does impeachment of a **hearsay declarant** work?

Answer 70

Hearsay declarant's credibility can be **impeached** through evidence that would be admissible ***as if*** the HD had testified as a W. ## Footnote *if HD credibility attacked, can be supported*

Question 71

By what impeachment methods can the HD be impeached?

Answer 71

**ALL!**

Question 72

What makes a **hearsay declarant** different from a **witness**

Answer 72

HD **does not** need to be given chance to **explain or deny** a PIS *rationale: the HD previously offered the statement as true and had the opportunity **at that time** to explain their statement…thus, when **impeaching them** on credibility/truthfulness the PIS is used to attack the HD's truthfulness by offering the PIS to show that the HD **knowingly** offered a false or uncertain statement in the past*

Question 73

Who can call the hearsay declarant to cross-examine?

Answer 73

The party **against** whom the HD's statement was offered

Question 74

# delete if needed; list (2) Who is a **hearsay declarant**

Answer 74

HD is person who's out of court statement has been admitted 1. under hearsay exception **or** 2. vicarious statement of opposing party

Question 75

# List (3) How can a witness be **rehabilitated?**

Answer 75

1. Explanation on **redirect** 2. **Good** character for **truthfulness** 3. Prior ***consistent*** statements

Question 76

How is a witness rehabilitated on **explanation on redirect?**

Answer 76

W explains or clarifies facts that were brought out during cross

Question 77

How is a witness rehabilitated on **good character for truthfulness**?

Answer 77

When W₁ attacked for bad character, *other W's* can testify to W₁ **good character** through **reputation or opinion testimony** *\*\*\* no specific acts \*\*\**

Question 78

Through what type of testimony can a W be rehabilitated using **good character for truthfulness**? *reputation, opinion, specific acts?*

Answer 78

through reputation or opinion testimony **ONLY** ## Footnote ***NO*** *specific acts*

Question 79

Rehabilitation should rehab same facts as attack ## Footnote i.e. W attacked for bad eyesight. **cannot** rehab for good character for truthfulness

Answer 79

--

Question 80

# list (2) How is a witness rehabilitated using **prior consistent statements?**

Answer 80

1. If W is attacked by explict or implicit **motive** to lie, PCS made ***before alleged onset of motive*** can be used 2. W impeached on other grounds (except *general attack* on truthfulnes), can use PCS if it has tendency to **rehab** witness

Question 81

A **prior consistent statement** admissible to rehab witness is also admissible as what type of evidence?

Answer 81

**substantive evidence!**

Question 82

Are **prior inconsistent statements** admissible as substantive evidence for their truth?

Answer 82

**NO** comes into **_only_** to **impeach** unless PIS was given under oath at a legal proceeding → then **also** comes in as substantive evidence

Question 83

Which impeachment methods require **foundation** to be laid?

Answer 83

1. Prior inconsistent statements when using **extrinsic evidence** 2. Bias/interest - FRE **silent;** up to courts which have a majority rule (ask about bias/interest during cross before impeaching)

Question 84

# List (2); Erou gtrw Specific acts are **NOT** allowed for: * Even Really Old Uncles* * Get* Crazy and*Too Rowdy* on *Wednesdays*

Answer 84

1. to **_explain_** **reputation or opinion** evidence for **untruthfulness** 2. using **good character for truthfulness** to **_rehab_** a witness

Question 85

**Extrinsic evidence** is **NOT** allowed for:

Answer 85

1. impeaching a witness re: **_bad acts_ of D involving D's untruthfulness** 2. collateral matters

Question 86

Remember: no foundation required to **impeach PIS of a HD** ## Footnote **rationale?**

Answer 86

since the first statement was admitted **improperly** as hearsay, it is not necessary to establish a foundation to impeach that HD

Question 86

Although extrinsic evidence is usually **NOT** allowed of bad acts of D involving D's untruthfulness, what is the one scenario in which can be used

Answer 86

Only if a witness is impeached with a prior conviction (even where the act did not result in a conviction)

Question 87

Who is a **hearsay declarant**

Answer 87

A **declarant**, generally speaking, is anyone who composes and sing a statement or declaration alleging that the information he has given therein is true.