Impeachment

Question 1

Five Classic Modes of Impeachment

Answer 1

1) Dishonesty
2) Inconsistency
3) Bias
4) Incapacity
5) Specific Contradiction

Question 2

Rule 607

Answer 2

Impeachment
- any party may attack the witness’s credibility, including the party that called the witness

Question 3

Intrinsic Impeachment vs. Extrinsic Impeachment

Answer 3

• intrinsic = asking a witness on cross-examination
• extrinsic = introducing a document as an exhibit or calling a different witness

Question 4

Rule 608

Answer 4

• deals with a witness’s character for untruthfulness (cannot show any other character evidence that would suggest the witness is untrustworthy, ie. violence, criminal behavior, etc, just lying) - effectively acts as character evidence for propensity to lie
• evidence in form of reputation or opinion testimony is allowed (Rule 608(a))
• extrinsic evidence of specific instances of untruthfulness not allowed (608(b))
• specific instances may be asked about though during cross-examination of the witness you’re trying to impeach (608(b))
  -> “taking the answer” - you need to settle for whatever answer the witness gives you, you can’t introduce extrinsic evidence (can show witness a doc to indicate lying, but that doc doesn’t get into evidence)
  -> also need good faith reason to believe the specific instances you’re asking about

Question 5

Rehabilitation and Impeachment

Answer 5

• can’t do rehabilitation unless witness has been impeached - not allowed to just double down on integrity of witness preemptively

Question 6

Rule 609

Answer 6

• relates specifically to impeachment of “character for truthfulness” - deals with evidence of certain types of criminal convictions
• “crimen falsi” (609(a)(2))
• felony conviction - 609(a)(1)

Question 7

Crimen Falsi

Answer 7

• Rule 609(a)(2)
• if witness’s conviction was for a crime involving a “dishonest act or false statement”, it must be admitted (ie. establishing the crime required proving witness’ dishonesty)
• no Rule 403 analysis, no balancing test- you automatically get to have this evidence admitted

Question 8

Felony Conviction

Answer 8

• Rule 609(a)(1)
• the felony doesn’t need to involve lying or deceit, just more than 1 yr in prison
  A) must be admitted (subject to Rule 403 balancing) in civil case or in criminal case if witness is NOT the defendant
  B) must be admitted in criminal case where witness IS the defendant IF probative value outweighs prejudicial effect (different balancing test than 403, equipoise goes to def)

Question 9

Crimen Falsi vs. Felony Conviction

Answer 9

• note that if you qualify for both, you should use crimen falsi because under crimen falsi there is no option for the court to exclude the evidence, whereas the felony conviction involves some balancing
• additional note that because felony crimes for violence don’t really relate much to truthfulness, you should be able to get these excluded on balancing grounds
• also likely exclude on balancing if the conviction is very close to the crime charged

Question 10

Limitations on 609

Answer 10

b - more than 10 yrs passed since release from confinement or the conviction (whichever later) -> in this case, probative value must substantially outweigh prejudice
c - pardon, annulment, or certificate of rehabilitation
d - certain limitations for juvenile adjudications

Question 11

Rule 613

Answer 11

Impeachment by Prior Inconsistent Statement

• intrinsic impeachment - witness is still on the stand
  -> prior inconsistent statement does not need to have been under oath
• extrinsic impeachment - witness no longer on the stand
• question of whether or not the prior statement is really inconsistent

Question 12

Luz

Answer 12

• SCOTUS
• defendant didn’t take the stand after judge decided on an in limine motion that he would wait to see what was said at trial for whether or not defendant’s prior conviction came in
• SCOTUS held because he didn’t take the stand, he didn’t preserve the issue for appeal

Question 13

Ohler

Answer 13

SCOTUS
- can only take the stand and get impeached, can’t bring it up yourself to try and soften the blow

Question 14

Prior Inconsistent Statement - Ambiguity

Answer 14

• ambiguous if inconsistent if witness previously pled the fifth or said no recollection
• it does count as inconsistent if witness says can’t remember now (can use the prior statement)
• also qualifies if they gave you a clear answer in deposition and now give you rambling response they’ve been coached into for trial

Question 15

Rule 613(b)

Answer 15

• for prior inconsistent statement impeachment, you ARE allowed to use extrinsic evidence if the witness is given an opportunity to explain or deny the statement (may be subject to recall) and the adverse party is given the opportunity to examine the witness about it, “or if justice so requires”

Question 16

Morlang Rule

Answer 16

• if your own witness says they don’t recall something, you only get to enter their prior inconsistent statement into evidence if you had a good faith expectation that they would recall it (vs. if you know the witness will say he/she won’t recall it, you can’t fabricate an opportunity to impeach with prior inconsistent statement because that would give you a way to get something into evidence that otherwise wouldn’t be allowed, although theoretically it was only ever going to be usable as impeachment anyway)

Question 17

Bias

Answer 17

• no special rules for impeachment on grounds of bias - all other rules of evidence apply
• you can introduce extrinsic evidence for this, and proof of bias is usually found relevant

Question 18

Incapacity

Answer 18

• includes physical or mental
• concept that witness couldn’t perceive or recall accurately whatever it is they’re testifying to
• ex from book re drug use - not allowed because didn’t suggest drug use at moment of identification - no suggestion on cognitive capacity to make the identification, just designed to imply bad character (vs. current drug use could be allowed in)

Question 19

Specific Contradiction - General Concept

Answer 19

• specific parts of the witness’s testimony are untrue and therefore all of it should be discredited
• more specific than prior inconsistent statement

Question 20

Collateral Evidence Rule

Answer 20

• entirely judge made, not in the Federal Rules of Evidence
• you may not use extrinsic evidence for specific contradiction on a collateral matter
  -> collateral - would it be relevant for any purpose other than contradicting the witness on this specific point? If no, then it’s collateral and you can’t use the extrinsic evidence

Question 21

Impeaching Hearsay

Answer 21

Rule 806
- when a hearsay statement, or a statement described in Rule 801(d)(2)(C)(D) or (E) - has been admitted in evidence, declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness
- court may admit evidence of declarant’s inconsistent statement or conduct, regardless of when it occurred or whether declarant had opportunity to explain or deny it
- if the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination