Witnesses and Impeachment

Question 1

What is required for a witness to be considered competent?

Answer 1

1. Take an oath to testify truthfully;
2. Testify based on personal knowledge (FRE 602);
3. Must not be incapacitated; and
4. Must give testimony as to facts, not opinions (unless allowed under FRE 701)

⭐️ Under the FRE, witnesses are presumed competent. Be wary of answer choices that say the witness is incompetent when the witness is instead biased.

Question 2

When is a lay witness allowed to testify as to opinions?

Answer 2

Only if they are based on first-hand knowledge and:

1. Rationally based on the witness’s perception;
2. Helpful to clearly understanding the witness’s testimony or determining a fact in issue; and
3. Not based on scientific, technical, or other specialized knowledge

FRE 701

Question 3

Can a judge testify as a witness?

Answer 3

No, never.

FRE 605

Question 4

What may a juror testify about after trial?

Answer 4

1. Extraneous prejudicial information that was improperly brought to the jury’s attention;
2. Improper outside influences;
3. A mistake entering their verdict; or
4. An overt racial animus was a significant motivating factor in the jury’s decision to convict D

Question 5

What is a juror prohibited from testifying about after trial?

Answer 5

1. Statements made during the jury’s deliberations;
2. The effect of anything on a juror’s vote; or
3. Any juror’s mental processes concerning the verdict or indictment

FRE 606(b)

Question 6

What is the process for present recollection refreshed?

Answer 6

A witness can be shown a document to refresh his memory if:

1. The witness cannot recall the answer to the question;
2. The witness says that seeing a particular thing will refresh their memory
   
   • Can use anything to jog their memory: writing, email, receipt, photograph, old shoe
3. After viewing the thing, the witness testifies that their recollection is refreshed

⚠️ Remember, this is not an exception to hearsay, and will generally not be admitted into evidence (unlike past recollection recorded).

Question 7

If a party refreshes the witness’s present recollection with a writing, what is the adverse party entitled to under FRE 612(b)?

Answer 7

1. Have the writing produced at the hearing;
2. Opportunity to inspect it;
3. Cross-examine the witness about it, and
4. Introduce into evidence any portion that relates to the witness’s testimony

FRE 612(b)

Question 8

Can inadmissible evidence be used for present recollection refreshed?

Answer 8

Yes, can be inadmissible hearsay or otherwise inadmissible evidence

Question 9

What is past recollection recorded?

Answer 9

Allows witness to read a prior writing or record to the jury if:

1. The witness once had personal knowledge of the writing;
2. The witness now forgets the writing and showing the writing to the witness does not jog his or her memory;
3. The writing was either made by the witness or adopted by the witness;
4. The writing was made when the event was fresh in the witness’s memory; and
5. The witness can attest that, when made, the writing was accurate

⚠️ Remember: This is a hearsay exception and can be admitted into evidence (unlike present recollection refreshed, which is not a hearsay exception and generally not admitted into evidence)

Question 10

What is impeachment?

Answer 10

Process by which a witness’s credibility is attacked

Question 11

What are the main methods of impeachment?

Answer 11

1. Showing prior inconsistent statements;
2. Challenging the witness’s character for truthfulness;
3. Showing prior misconduct;
4. Showing bias; and
5. Showing witness has sensory or mental defect
6. Prior convictions

Question 12

Who may impeach a witness?

Answer 12

Any party, including the party calling the witness

FRE 607

Question 13

When is extrinsic evidence of a prior inconsistent statement admissible?

Answer 13

Extrinsic evidence of a prior inconsistent statement is only admissible when:

1. The witness is afforded an opportunity to explain or deny the statement
2. Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613)

Question 14

Define

collateral evidence

Answer 14

Evidence that does not directly affect the core issues of the case, but instead bears on a collateral issue, typically the credibility of a witness.

Question 15

Define

collateral issue

Answer 15

A question or issue that is not material to the main matter in dispute.

Example: In a case about a car accident, a collateral issue could be whether the witness is telling the truth about where she ate dinner that night.

Question 16

Can extrinsic evidence be used to cross-examine a witness about a collateral matter?

Answer 16

Generally, no unless it is:

• Evidence of a criminal conviction that complies with the FRE 609 standards
• Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)

Question 17

Define

extrinsic evidence

Answer 17

Evidence other than the witness’s testimony in the current trial

Question 18

When is extrinsic evidence admissible for impeachment?

Answer 18

Only if:

1. Evidence is on a non-collateral matter, and
   
   • Witness is given a chance to explain the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or
2. Extrinsic evidence is for a criminal conviction and admissible under FRE 609

⚠️ Note: Extrinsic evidence is not admissible on collateral matter for impeachment

Question 19

Can you introduce extrinsic evidence to prove a prior conviction during felony impeachment of a witness?

Answer 19

Yes

Question 20

How do you impeach a witness’s character for truthfulness?

Answer 20

1. Reputation or opinion testimony regarding the witness’ character for untruthfulness (FRE 608(a)); and
2. Evidence showing bias via cross-examination only (extrinsic evidence allowed);
3. Specific instances of conduct that are probative of their character for untruthfulness via cross-examination only (FRE 608(b)) (extrinsic evidence is NOT allowed except for a criminal conviction under FRE 609)

Question 21

When testifying as to a witness’s reputation for truthfulness, can the witness discuss specific acts by the witness?

Answer 21

No, can only testify about their general opinion of the witness’s truthfulness or reputation in the community

FRE 608(a)

Question 22

What cannot expert witnesses be used for?

Answer 22

• interpretation of law
• whether the defendant was insane
• can’t just be used as a conduit for inadmissible hearsay

Question 23

Can a party bolster their own witness’s credibility with evidence of the witness’s character for truthfulness?

Answer 23

No, party may only introduce evidence of truthfulness after the witness’s crediblity for truthfulness has been attacked (i.e. can only be used defensively, not offensively).

Evidence may be in the form of reputation or opinion about the witness’s character for truthfulness.

FRE 608(a)

Question 24

What is impeachment through prior bad acts?

Answer 24

Allows party to impeach a witness for prior bad acts that did not result in an arrest, charge, or conviction. Can only introduce prior bad acts that are probative of the witness’s character for truthfulness (i.e. lying on your character and fitness application).

⚠️ Note: Party cannot use extrinsic evidence to show prior bad acts (e.g. if a party denies the prior bad act, you cannot introduce evidence to show they’re lying). Can only be asked about on cross-examination.

FRE 608(b)

Question 25

Can an arrest be used to attack character for truthfulness?

Answer 25

No, cannot be used to impeach witness’s character for truthfulness because an arrest is not a conviction. Witness can be asked about underlying conduct, however.

Question 26

What types of prior criminal convictions can be used to impeach a witness?

Answer 26

1. Crimes punishable by death or by imprisonment for more than one year (always in civil & criminal cases if witness is not D, & if witness is the D, can be admitted if probative value of the evidence outweighs its prejudicial effect in criminal cases)
2. Convictions more than 10 years old (i.e. more than 10 years has elapsed since the date of the conviction or of the release of the witness)
   
   1. Only if its probative value substantially outweighs its prejudicial effect, and other party was given written notice and chance to object)
3. Any crime involving dishonesty and/or false statements

FRE 609

Question 27

If the conviction is more than 10 years old, when is it admissible?

Answer 27

Only admissible if:

1. Its probative value substantially outweighs its prejudicial effect; and
2. Adverse party is given reasonable notice of the intent to use the crime and an opportunity to object

FRE 609(b)

Question 28

When is a felony not involving dishonesty admissible to impeach?

Answer 28

If witness is the criminal D:

• Only admissible if the probative value outweighs its prejudicial effect to D

If the witness is not the criminal D:

• May be admitted unless probative value is substantially outweighed by the prejudicial effect

Question 29

When is a conviction involving dishonesty admissible to impeach?

Answer 29

If a witness has been convicted of a felony or misdemeanor involving dishonesty and it’s equal to or less than 10 years old, there is no discretionary balancing test. It will be admitted, even if it has a serious prejudicial effect.

Question 30

What are examples of crimes involving dishonesty or false statements?

Answer 30

• Embezzlement;
• False statement to the government;
• False pretenses;
• Fraud;
• Forgery;
• Larceny by trick;
• Perjury;
• Obstruction of justice; and
• Tax evasion

Question 31

Is evidence of a witness’s prior juvenile conviction admissible to impeach?

Answer 31

Not admissible to impeach the defendant. Can impeach another witness if:

• Evidence is offered in criminal case;
• An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
• Admitting the evidence is necessary to fairly determine guilt or innocence

⚠️ Note: Evidence of a juvenile conviction can be used against the defendant to show bias

FRE 609(d)

Question 32

Is evidence of a juvenile conviction admissible in a civil case?

Answer 32

Never.

FRE 609(d)

Question 33

Can a criminal conviction be used to impeach if an appeal is pending?

Answer 33

Yes

FRE 609(e)

Question 34

Can guilty pleas be used to impeach a witness?

Answer 34

Yes, guilty pleas (as long as they are not withdrawn) may be used to impeach in a subsequent preceding.

FRE 410

Question 35

Can evidence of a witness’s religious beliefs be used for impeachment?

Answer 35

Cannot be used to attack witness’s credibility, but can be used to show bias

FRE 610

Question 36

How can a witness be impeached for sensory defects?

Answer 36

Party must show that the witness’s capacity to observe or recall events is impaired (e.g. witness had a blood alcohol level of 0.30 on the night in question)

Question 37

How do you rehabilitate a witness? (i.e. repair the damage)

Answer 37

1. Introduce prior consistent statement to rebut an express or implied charge that the witness’s testimony was recently fabricated or from a recent improper influence or motive (FRE801(d)(1)(B));
2. Ask witness to clarify statements on re-direct; or
3. Introduce opinion or reputation testimony if the witness’s character for truthfulness was attacked (FRE 608(a))

⚠️ Can only directly rebut attacks; cannot bolster credibility (you can bolster after impeachment however)

Question 38

Define

Dead Man Statute

Answer 38

Prevents a party with an interest in the litigation from testifying against a dead party about their communications with the deceased

Question 39

What do you need to have a Dead Man Statute on the MBE?

Answer 39

1. Diversity jurisdiction (state substantive laws will apply); and
2. Question says there is a Dead Man Statute in place