Chapters 7 & 8 The Examination & Impeachment of Witnesses The Competency of Witnesses I. The EXAMINATION of WITNESSES: a. Each party’s case is presented largely through testimony [PD [rebuttal]P(D)(P)] i. Prosecution can present anything that is relevant…defense’s case is NOT necessarily limited by what prosecution says 1. Later is limited to what was said before 2. Eventually will run out of witnesses ii. P’s witness: 1. Direct examination by P 2. Cross examination by D 3. Redirect by P 4. Re-cross by D b. 611: Mode and Order of Interrogation and Presentation i. (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to 1. (1) make the interrogation and presentation effective for the ascertainment of the truth, 2. (2) avoid needless consumption of time, and 3. (3) protect witnesses from harassment or undue embarrassment. ii. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. iii. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. c. Cal. [14 provisions]—federal rules seem to assume that know what direct/cross examination is, but Cal. explains difference between direct/cross examination i. Limitation: If the witness is NOT adverse to youyou can NOT use leading questions for friendly witnesses on CROSS-examination [leading questions allowed in direct examination of hostile witnessescross-examination of the now friendly witness = does NOT allow leading questions] d. 611(c)—Primary Limitation on form of questions in direct examination [NO leading questions] i. Leading Questions—can be answered ‘yes’ or ‘no’…leads the answer 1. Have you been to LA? Yes or No…but NOT leading questions 2. Was D driving at an excessive speed? Leading Question…should rephrase ‘How was D driving?’ 3. Are you employed by Bank of America? Leading…but courts might allow because it does NOT bear on materiality of issue [to save time]…should asked ‘Where are you employed?’ ii. Limitation because witness is one with personal knowledge and lawyer is advocate with bias…if allow juries to hear from witness the way witness saw it, rather than way lawyer would like jury to understand it = less bias iii. Exceptions: As may be necessary to develop the witness’ testimony 1. Witness may be timid, young, weak, aged, or forgetful—after ask non-leading question 1st and witness stares at you like deer in headlight…then ask leading question, if objection a. Respond that trying to refresh witness’ testimony b. Even if objection is sustained…witness’ memory should be triggered by leading question 2. Hostile witness—witness that has interests aligned with opposing parties a. 1st try NON-leading question…show lack of cooperation [hostile] b. Ask for sidebar, and have judge declare witness hostile for purpose of leading questions on cross-examination iv. Cross examination—leading questions permitted [not only proper, but essential]…should always use and witness MUST respond with yes or no e. 611(b)—Cross Examination: i. Subject Matter: 1. Anything party went into on calling witness on DIRECT [limited to scope of direct] 2. Anything that bears upon the witness’ credibility a. E.g.—witness has 2 year old perjury conviction…because it is proper impeachment [matter that affects credibility of witness] = it can be explored on CROSS examination ii. Court has discretion to permit inquiry into additional matters [courts strict about this] 1. If want to bring in something else…should recall the witness 2. But if it is SMALL matter…judge could grant leaveinquire as if on direct examination
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iii. E.g.—witness asked on DIRECT examination what color the light was? W responds yellow 1. On crossask whether witness had martini at lunch 2. Objection: beyond scope of directwhat is scope of direct [Subject Matter discussed on direct examination?] a. Respond that subject matter was the cause of accident b. Other side argues that subject matter was ONLY the color of the light 611(a)—Control of Court i. Cal.—requires that be particularly careful when witness is under 14 years of age…specific rule to be particularly careful with child witnesses [would be included in 611(a)(3)] OBJECTIONS: i. In court: 1. Question objectionable: state ‘objection!’ [stand up]want court to stop and get attention: state the grounds a. If you don’t make objection = waived on appeal [UNLESS it is plain error—so bad, so prejudicial…almost NEVER happens] b. Usually objection is to question, but could be to answer as well 2. Witness’ answer is objectionable: 2 steps a. Object and state grounds b. Move to strike the witness’ statement on record [preserve for appeal] ii. Types of Objections: 1. Leading questions—questions that suggest an answer [call for yes or no response or being with ‘was’, ‘were’, ‘did’, ‘does’, ‘have’, or ‘had’] 2. Asked and answered questions—questions that have already been asked of witness and answered 3. Compound questions—questions that actually incorporate 2 or more questions in single sentence 4. Questions assuming facts NOT in evidence—questions that assume the existence of facts NOT yet testified to by a witness or otherwise introduced into evidence 5. Argumentative questions—questions that are phrased in way they merely engage witness in improper argument 6. Questions calling for speculation—questions asking for information beyond witness’ personal knowledge, or for an inadmissible opinion 7. Non-responsive answers—answers by witnesses that do NOT respond to examiner’s question 8. Narrative answers—answers by witnesses that exceed the scope of the question put to them…a party may object to a question that would result in objectionable answer; in that case, objection would be phrased as ‘calls for a narrative answer’ 615: Exclusion of Witnesses—At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of i. (1) a party who is a natural person, or ii. (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or iii. (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or iv. (4) a person authorized by statute to be present. 615—court SHALL order witness excluded if party asks [don’t want witnesses testifying collusively…if all hear testimony of each other, less likely there will be discrepancies (difficult to figure out what the truth is)]SHOULD always ask for this! i. Exceptions: 1. Natural person—D can’t be excluded 2. Non-Natural person—if D is corporation, then THAT person designated can’t be excluded 3. Expert witness—want to have your expert witness listen to testimony of other side and give opinion based on testimony [presence is necessary to presentation of case] 4. Court appointed translator—authorized to be present ii. Cal.—court may exclude on its own [party doesn’t have to ask] Direct Examination Problems: i. 7-1: P sues D for breach of K…P questioned at trial on direct examinationP’s attorney asks P to state name for record 1. You live in San Francisco, right?-->LEADING question, should as where you live [courts may allow this type of evidence because it is a preliminary matter…NOT likely to be material to outcome of the case] 2. Do you live in San Francisco, or somewhere else?-->LEADING question [most courts would probably not sustain objection…but should ask ‘where do you live?’]
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Where were you on night of June 1, 1992 at 9pm?-->assuming that witness is over 14 years old [alive at the time…therefore somewhere] = SHOULD be allowed [NO objection] 4. P offers that was at Burger king having candlelight dinner…P’s attorney asks what did you see and hear at that time?-->COMPOUND question [asks what he saw and what he heard]…supposed to ask questions one at a time [sustained]Should ask (1)What did you see? (2) What did you hear? OR What did you notice? 5. P says ‘I saw D selling goods to my competitor’…P’s attorney asks ‘So you saw D selling goods to someone else’ASKED and ANSWERED 6. P’s attorney says after you saw D with your competitor, what happened next?…P responded that they left and I went to my office. Later that week I saw D’s sister. Now she’s in business with D and—>NARRATIVE answer [it’s ok to thank your witness and interrupt once you get your answer] ii. 7-2: trial in civil conversion case, P testifies on direct examination 1. P’s atty. asks when you saw D walk by your house at 3:30 pm, on July 5, what did you do?->Assuming facts NOT yet in evidence [can’t be answered yes or no, therefore NOT leading question]…but NO foundation because no facts in evidence to indicate that witness was in position to see that or that D did that 2. P responded ‘I watched him’…P’s atty. asks what happened at 3:30 pm on July 5 th ?-->If other question came in, could be asked and answered OR could object as assuming facts not yet in evidence [NOT likely to be sustained] 3. P responds ‘I saw D walk by my house’…P’s atty. asks ‘Did D, who you say walked by your house at 3:30 pm, have anything in his hands?’LEADING question…telling witness that he had something in his hands [could rephrase ‘did you notice anything about D?’] 4. P responds ‘Yes, what appeared to be glass statue’…P’s atty. asks ‘Do you think D looked suspicious or shifty?’calls for speculation…seems to illicit impermissible character evidence; compound [suspicious or shifty]; impermissibly lay opinion testimony; leading 5. P responds ‘Yes, definitely’…P’s atty. asks ‘Where exactly were you when you observed the D?’Objection NOT proper [proper in form and proper in subject matter…lay foundation] 6. P responds ‘I was on my front porch…P’s atty. asks ‘So where were you when you saw the D?’…P answers ‘At first I was in front of my house. Then I went inside to telephone the police. I was steaming! By 4 pm, police came and I had calmed down some. It took until 5 pm before I was fully relaxed. I did drink a beer at 4:50p pm, but then I was itching to…Responsive is narrative and non-responsive [departs from question asked…where were you?] k. Cross-Examination Problems: i. 7-3: Ba was employed as truck-driver for mouthwash company…after detouring during delivery to visit his friend, Bar, Ba involved in accident with pedestrian, F…ONLY issue at trial was whether Ba was acting outside scope of his employment at time of accident…at trial, Ba testified for P, F…Ba was asked only 1 question—whether he was on duty at the time of the accident…on cross-examination, Ba was asked several questions 1. D’s atty. asks ‘Ba, were you distracted at the time of the crash by your friend, P, yelling at you from the sidewalk?’ONLY issue is if in scope of employment…question asked is NOT at issue = object as beyond scope of direct and irrelevant 2. D’s atty. asks ‘Had you been drinking any alcoholic beverages immediately prior to crash?’could make argument that if affects issue of working at time [however people can be on job and drinking]…MOST likely beyond scope of direct and irrelevant 3. D’s atty. asks to ‘Describe what you saw immediately after crash occurred’don’t know what question is going for…appears that beyond scope of direct ii. 7-4: Arsenic, prominent local banker, sues L, mayor of town, for slander…L called Arsenic a ‘succa mucca rucca cheat whose business deals are all criminal’…at trial, P Arsenic calls business partner, S, to testify that Arsenic is an honest businesswoman whose truthfulness, in her opinion, is beyond reproach…S asked following on CROSS-EXAMINATION: 1. D’s atty.: ‘S, is it true that you cheated on your civil service examination last year?’ 2. P’s atty.: ‘Objection! The question is beyond the scope of the direct examination, your honor’ 3. Objection overruled because affects the credibility of witness [if she cheated on civil service exam, she is NOT an honest person…if she is NOT an honest person, she could be lying on stand = good faith basis for question required] IMPEACHMENT of WITNESSES: a. 607: Who May Impeach—The credibility of a witness may be attacked by any party, including the party calling the witness. b. 610: Religious Beliefs or Opinions—Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. c. BOOK NOTES—Impeachment of Witnesses:
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i. Impeach—attack witness’ credibility or believability ii. Methods of Impeachment (intrinsically) 1. Contradiction—witness says wrong address 2. Bias—witness hates people charged with violent crimes 3. Criminal convictions—convicted 9 years ago of attempted murder 4. Bad acts—prior, untruthful acts…last year witness committed Mail Fraud against USPS 5. Testimonial capacities—witness wasn’t wearing eyeglasses when saw robber 6. Prior inconsistent statements—said D was 5’10”…previously told mother he was 6’2” iii. Contradiction—occurs when examining atty. Disputes witness’ testimony about a factfact disputed need NOT be dispositive or even important to outcome of case…theory is that if witness is inaccurate about one of facts, he more likely to be inaccurate about other facts as well iv. Bias—form of impeachment in which witness is shown to be influenced, corrupted, prejudiced, or predisposed towards or against a party…may be hostile, interested in the outcome, or otherwise non-neutral v. Convictions of Crime—crimes that bear on witness’ credibility and 1. Crimes that can be used to impeach: a. Crimes of dishonesty or false statement (involving deception or fraud), regardless of potential length of incarceration—narrowly indicating breach of trust (deceit or fraud) b. Felonies, crimes punishable by more than one year in prison 2. Excludes: a. Misdemeanor crimes of violence or drug possession b. Juvenile adjudications c. ‘Stale’ convictions—convictions if more than 10 years have elapsed since the date of conviction or release from incarceration RULE: any witness may be impeached (attacking witness’ credibility) by any party…any question asked on impeachment is fair fame as long as you have a good faith basis for asking i. However, if you bring out to ‘lessen the sting’ or ‘soften the blow’ of harmful impeachment evidence by offering the evidence on direct examination…make it appear that party has made no attempt to hide damaging testimony [NOT impeaching] ii. MODE of the ATTACK: 1. Testimonial Capacity of the Witness: common law a. Perception—fact based… i. Focus on poor vision, poor lighting ii. Was witness distracted iii. Intoxicated at time of perception b. Recall—focus on factors particular to the witness [bad memory; illness; events not particularly memorable (transaction 4 months ago, and transaction that performs 20X/day)] c. Communication—have you taken any drugs today that might affect ability to communicate in court; witness is insane; or any other incapacity 2. Motive: common law…should be brought to light to jury that witness could make testimony slightly more favorable to one party a. Bias—in favor of a party i. Witness relationship to parties; relationship to groups which parties are members (law school; church) ii. Positions taken by party b. Interest—in outcome of case i. Promise of future employment/contract as result of one of parties winning the case ii. Something to gain by winning c. Prejudice—against party or position taken by party i. Dislike of party ii. Hatred/dislike group or organization that party is a member of 3. Character: governed by Federal Rules a. Convictions [609] b. Acts [608] c. Character witnesses [608—call for purpose of showing witness is liar] 4. Inconsistencies: a. Prior Inconsistent Statements—federal rules b. Contradiction i. Note contradiction and highly in closing case ii. If bring it up before…likely to get explanation and opposing counsel will take care of
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610: at common law if didn’t believe in God, they were prevented from testifying!! Today, this is EXPRESSLY prohibited…can’t show that religious beliefs/opinions in order to attack witness’ credibility i. If both witness and D are members of same small church/temple = can be used ii. Distinguish membership in group [can affect bias/prejudice…allowed] from using beliefs/opinions to attack credibility f. Problems: i. 7-5: JS sued by neighbor for conversion of neighbor’s $2,500 bicycle…at trial J testifies on own behalf claiming misidentification and offered alibi, asserts that watching movie ‘Cinderella’ when alleged theft occurredon direct, J stated ‘I didn’t leave my house all evening. If someone tried to take bike, I’m sorry, but I was at home’ On cross-examination, J is asked: 1. Isn’t it true that on day in question you worked from 1-6, not 6:45 as you testified?--> relevant as impeachment, therefore relevant = contradiction 2. Are you going to lose your job if you are found liable?-->interest in making sure jury doesn’t find liable [affect motive of testimony] 3. Weren’t you convicted of a felony of distribution of marijuana 3 years ago?-->criminal conviction [impeachment by character] 4. You cheated on LSAT didn’t you?-->Prior acts, attack on character [proper impeachment 5. You have intermittent amnesia, don’t you?-->testimonial capacity, ability to recall 6. Didn’t you say in your deposition on June 5th that you saw Diehard, NOT Cinderella as you testified?-->Prior inconsistent statements—may NOT be material, but fact that there is contradiction makes it significant ii. 7-6: C testified in commercial litigation…which question permissible on cross examination of C: 1. You attended the March board of directors meeting, and not the May meeting as you testified on direct, right?-->attempt to contradict testimony, impeachment contradiction 2. You left your office last Wed. at 5:30, not 7:30 as you testified on direct, right?-->as long as it is relevant to case = permissible impeachment contradiction 3. Your boss was wrong when she testified that she deposited the march proceeds on Mar. 4th, wasn’t she?-->Contradicting ANOTHER witness…NOT up to this witness to conclude whether this witness was wrong [calls for conclusion of question of fact---this is up to jury to decide]…asking one witness to conclude about testimony of another witness is improper [could be unfairly prejudicial] iii. 7-7: S prosecuted for allegedly battering B on Colorado ski slope and only eyewitness was S’s sister, Y…prosecutors calls T as witness and on direct examination asks: 1. T, you as sister of defendant, S, correct?-->Motive impeachment—form of question is WRONG [leading question of direct examination]…should 1st show hostility, then it is permissible to use a leading question = prosecution is trying to show bias…is NOT a problem because prosecution can impeach their OWN witness 2. You are currently facing a criminal charge of attempted murder?-->Motive to testify another way…prosecutor may [improper under 609 because no convictions, but proper to prove bias to get a deal] 3. Have any deals been made in return for your testimony?-->trying to show that if there are NO deals…witness is testifying truthfully [permissible] or if there are, there is a bias motive in trial iv. 7-8: Defendant, A, is charged with unlawful possession of a firearm by a felon…at trial, D’s friend, P, testifies for the defense…P states that the gun in question, found on the ground near A was really P’s…on cross-examination, the prosecutor asks P whether he and A are both members of same gangif this is ONLY evidence of A’s membership in gang…issue of unfair prejudice to the defendant, A, by trying to impeach the witness…MUST consider 403 [which tips in favor of admission] 1. S. Ct. case—witness who was member of Arian Brotherhood, as well as Dimpeachment by bias trumps danger of unfair prejudice to show common membership in odious organization [would lie and kill for each other…particularly probative] 2. Does NOT mean 403 can NEVER work…if there is nothing about organization to indicate motivation to have bias or particularly large organization v. 7-9: S prosecuted for distribution of cocaine, Father O testifies for prosecution as eye-witness to crime…on cross he is asked by defense, ‘Father, isn’t it true that S was at one time a member of the church where you are the priest, but she quit after having an argument with you?’ONLY character trait at issue with witness is truthfulness…fact that quit church after argument—could show prejudice against party [tangentially deals with issue of religion…NOT blocked by 610 because really dealing with membership and motive] CONVICTIONS as WITNESS IMPEACHMENT: a. 609: Impeachment by Evidence of Conviction of Crime i. (a) General rule. For the purpose of attacking the credibility of a witness, e.
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(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and 2. (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. ii. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. iii. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. iv. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. v. (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. 609(a)(2)—Prior Criminal Convictions: What kind of criminal conviction can be used… i. Applies to EVERY witness…if witness has ANY crime of dishonesty or false statement = SHALL be admitted [court does NOT have discretion to exclude it!!] 1. Perjury 2. Fraud 3. False statement to government agency 4. Falsifying hotel register—could be violation of municipal law 5. Questionable? Smuggling or obstruction of justice ii. Amendment: evidence admitted if elements of crime can be proved… 1. Obstruction of justice—if can prove that crime was committed by way of dishonesty or false statement 2. Killing a witness—crime of violence, NOT dishonesty 3. Lying to a police officer—crime of dishonesty iii. Dishonesty MUST be element of crime!! 1. E.g.—lye to someone and get them to park and bludgeon them to death there = murder, even though liedit is NOT crime of dishonesty/false statement 2. E.g.—theft: just taking something out of someone’s hand v. theft by false pretenses [shows dishonesty!] 3. Crimes that could be committed by way of dishonestyMUST be able to readily show dishonesty is part of crime iv. Justification—can infer witness is dishonest person [NOT truthful] and it is more likely that witness is NOT telling the truth on the stand [makes the call that HIGHLY PROBATIVE on truth or veracity and court can NOT exclude them!!] 609(a)(1)—Felonies Limitation [probative value is MUCH lower] i. Justification—someone who commits crime has less respect for law, therefore more likely to lie on stand ii. Who is Witness? 1. Criminal D—very difficult to get felony conviction in a. TEST: Probative value is greater than danger of unfair prejudice to the parties b. VERY unlikely that get in [tips in favor of exclusion…will usually by unfairly prejudicial to party] 2. All other witnesses—403…admitted as long as probative value is NOT substantially outweighed by danger of unfair prejudice a. Usually does NOT bear on parties
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Criminal D is calling someone on his behalf…fact that witness has prior criminal conviction = better ground on excluding under 403 because of connection between criminals [unfair prejudicial]
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Limitations: i. Convictions within 10 years: 1. Exception: a. Interest in justice will be served; b. Probative value substantially outweighs danger of unfair prejudice [reverse 403]; AND c. Written NOTICE given and fair opportunity to object [pre-trial motion in limine] 2. Time starts running at date of conviction or date when released [whichever is later]KNOW when start date is…but do NOT know when END date is [when charged; filed; etc…] ii. Annulment, pardon, or certificate of rehabilitation…conviction inadmissible if meets this requirements + one of the following: 1. Witness has NOT had subsequent felony conviction OR 2. Finding of innocence iii. Juvenile crimes are inadmissible… 1. Exception: criminal case AND conviction is NOT conviction of D…then the court has permission to discredit if it is type that would come in under adult conviction and it is necessary to determination of guilt or innocence [E.g.—perjury at 17 would probably come in] iv. Pending appeal does NOT affect admission… Cal.: i. NO distinction between crimes of dishonesty or false statements ii. ONLY admit felonies…NOT misdemeanors iii. Limitation on admission of felonies as impeachment: probative value is substantially outweighed by danger of unfair prejudice will keep it out Problems: i. 7-10: S prosecuted for forging signatures on applications for food stamps…in prosecution’s case-in-chief, they offer witness, W, 1. W will testify that: (1) S has been convicted of forgery on 3 prior occasions; (2) S was charged with embezzlement of 4th prior occasionW testifying as to S’s prior conviction is NOT admissible as impeachment…relevant to show propensity, therefore inadmissible character evidence [can NOT admit to show character of D + wrong form (must be reputation, opinion, NOT specific acts] 2. What if W was convicted and charged: a. Forgery would surely come in (representing something false as true) as crimes of dishonesty/falsity b. Charge of embezzlement will NOT come in under 609 (MUST be conviction) ii. 7-11: M brought suit against Dr. S for failing to diagnose her cancer…at trial, P’s expert, Dr. I, testified and on cross, the defendant wished to question the doctor about the doctor’s misdemeanor conviction for willfully failing to file federal income tax returnjust because he willfully chose to not fill a tax return does NOT look like a crime of dishonesty/false statement iii. 7-12: JA was prosecuted for attempted murder…J testified at trial and denied committing the crime charged, on cross-examination, prosecution attempted to impeach J: 1. 7-year old conviction for attempted murderwill NEVER come in against criminal D (609(a)— probative value must outweigh danger of unfair prejudice): felony, but because he is criminal D…prejudicial material can come in but has to bear upon character for veracity a. Probative value low because if break law, likely to lie in court b. Danger of unfair prejudice is VERY high…find guilty because of prior similar conviction 2. 2-year old conviction for assault, punishable by 6 months in jail and a fine of $1,000NOT felony…misdemeanor will ONLY come in if crime of dishonesty = NOT felony and NOT crime of dishonesty…therefore will NOT come in 3. 12-year old juvenile adjudication for murderONLY exception for juvenile adjudication is if it is witness OTHER than criminal D, and necessary [here it is criminal D, therefore, will NOT come in!!] + beyond 10 year presumptive time limit [must be more probative than prejudicial to come in…NOT case here] 4. 10-year old conviction for aggravated battery, punishable by a maximum of 3 years in prison, for which the D was sentenced to 2 months incarceration, sentence suspended10 year old conviction [probative value must substantially outweigh danger of unfair prejudice] = will NEVER beat the test…will not come in [release date determines whether stale conviction (later in time)]
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5-year old conviction for grand theft, for which the D was sentenced to 6 moths incarcerationfelony, probative value outweighs danger of unfair prejudice [criminal D and prior con] = even if it isn’t similar crime, unfair prejudice still likely to outweigh a. Probative value is fairly remote b. If committed by theft by false pretenses…Amendment [goes into effect in Dec.]if conviction had been sustained based upon evidence of falsity = satisfies requirement of falsity and court has NO discretion to exclude it!! g. Summary of Convictions… i. 609(a)(1): Felonies 1. Criminal D: probative value > unfair prejudice [to stay in] 2. Other witnesses: 403 [probative value is substantially outweighed by danger of unfair prejudice to be excluded] ii. Criminal D charged with making false statement to government agent 1. Defendant testifies that he did NOT 2. Prosecutor offers on cross-examination: Weren’t you convicted of making false statements 2 years ago? a. Charged with same violation that he was convicted of 2 years ago b. RULE: NO discretion on part of court to exclude!! 3. Admissible character evidence as it bears on general veracity of witness [impeaching witness + court can NOT exclude under 609(a)(2)] a. Completely inadmissible under 404 to prove propensity b. Consider if want to request judge to give limiting instruction—brings more attention to fact c. D attorney = don’t allow D to testify…won’t come in iii. Prior conviction of similar crime of violencekept out based on probative value NOT outweighing danger of unfair prejudice to party IMPEACHMENT OF WITNESS: Attacking Character; Prior Statements; Refreshing Recollection; Extrinsic Evidence a. 608: Evidence of Character and Conduct of Witness i. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: 1. (1) the evidence may refer only to character for truthfulness or untruthfulness, and 2. (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. ii. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness 1. (1) concerning the witness' character for truthfulness or untruthfulness, or 2. (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. iii. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. b. 608: Ways to attack credibility of witness by attacking CHARACTER of witness—can ONLY focus on character trait of truthfulness i. (a) Permits to call separate character witnesses to testify of this witness’ character for truthfulness 1. Reputation and Opinion 2. NO ‘good’ until after ‘bad’ a. Can NOT call someone to bolster character for truthfulness UNLESS character has been attacked b. ONLY type of character evidence that can come in is one that which bears upon the truthfulness of the witness ii. (b) Specific Acts—NOT criminal conviction [E.g.—witness that filled out mortgage application and put in false statements] 1. Does NOT permit you to include ANY extrinsic evidence 2. If witness lies in court…can NOT offer any additional evidence to prove lying iii. Cal.—allows reputation/opinion evidence as it bears on truthfulness…but does NOT allow specific acts [NO 608(b) counter-parts] c. 613: Prior Statements of Witnesses
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i. (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. ii. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a partyopponent as defined in rule 801(d)(2). 613: offer evidence that witness made statement prior to trial that is inconsistent with trial testimony… i. Limitation: if you are going to use prior inconsistent statement as impeachmentMUST provide witness with opportunity to explain the prior inconsistent statement 1. If you are planning to do thiscan NOT allow judge to dismiss the witness 2. MUST be available to explain themselves [ONLY when bringing in another witness or some other evidence when witness is NOT on stand] ii. Limitation does NOT apply: 1. When witness is party—will be there to explain 2. Prior inconsistent hearsay [806] can be used to impeach declarant [do NOT have to provide declarant opportunity to come into court and testify] iii. Cal.—prior inconsistent statements can be offered to prove TOMA, unlike federal rules [have limitations that under oath, penalty of perjury; prior trial, proceeding, hearing, deposition; subject to crossexamination…801(d)(1)(A)] Problems: i. Prior Acts—7-13: J prosecuted for committing perjury during her testimony before grand jury…at trial she testifies on her own behalf and is asked on cross: 1. You were arrested for lying on your income tax statement last year, weren’t you?-->Prior Act— objection is that impeachment improperly brings in impermissible evidence [arrest itself if very prejudicial]can ask ‘you lied on income statement’ = danger is that they will lie again and can’t rebut with extrinsic evidence 2. You deceived your boss 3 weeks ago, didn’t you, when you claimed you missed an important meeting because your train was latestatement objectionable because lacks foundation—proper question was ‘you lied to your boss’…NOT whether your boss was deceived (improper) [boss may have known what was going on] 3. You bribed an official at a computer company in March of 1989, correctis bribery a crime of dishonesty (bears upon truthfulness)? Depends on court…question is whether court view this as a prior act that bears upon truthfulness and that bears upon admissibility [may have been previously decided in jurisdiction]…crimes of dishonesty that bears upon veracity [court dependent] ii. Testimonial Capacities—7-14: In tort action for false imprisonment, DG is about to testify as an eye witness for defense, he yells to jury as he takes witness stand, ‘Would you like some of my psychotic chips?’ referring to a bag of potato chips he is carrying…DG adds, ‘They are mind altering’ 1. On cross examination, P’s attorney questions DG about 2 previous hospital stays for undifferentiated schizophreniafact that suffers from mental illness may affect ability to perceive and to recall = proper on cross-examination 2. D also questioned on cross-examination about whether his psychotic chips contained any mind altering substancesONLY proper if there was evidence that he had eaten those chips…better to ask if he had taken any drugs or alcohol that might affect ability to testify in court [asked of most witnesses] 3. D asked if under influence of drugs or alcohol at time he observed alleged false imprisonment and whether he is currently under influence of mind altering substance at the time of trialBOTH questions permissible…if in mind-altered condition at time of events, effects perception and memory + if in mind-altered state at trial effects ability to testify and memory iii. Prior Inconsistent Statements—7-15: T, the primary witness for the defense in a tort action, states on direct examination that he was NOT aware that a lawsuit had been filed until 4 days prior to trial…on cross-examination, T is asked whether he told a good friend 8 months earlier, right after the suit had been brought ‘I heard that good old P filed suit this week’prior inconsistent statement…fact that witness’ testimony is NOT same, affects credibility of witness 612: Writing Used to Refresh Memory--Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either-i. (1) while testifying, or ii. (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, iii. an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court
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shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 612: Refreshing the Witness’ Memory…usually own witness i. 3-step process to refreshing recollection: 1. Elicit evidence of lack of memory: get some answer to indicate that witness does NOT remember…witness MUST say something to effect of ‘I do NOT recall’; ‘I don’t remember’ 2. Can subject witness to anything that will refresh recollection…writing are MOST common a. Can use witness’ own prior statement; someone else’s recollectionNO limitation… b. Judge COULD limit if it will take too much time c. Writing = show opponent, then witness 3. Fail to Revive Witness’ Memory: If what you have shown witness is his own prior recorded statement [made at or about time when recorded in statement; memory was fresh; witness had perceived it]803(5) past recollection recorded ii. If going to show witness writing = MUST show to opponent 1. Supposed to revive memory 2. Allow witness to read, then ask question again 3. Opposing counsel can cross-examine witness regarding paper and even offer into testimony iii. If show witness anything while preparing witness to testify at trialcourt has discretion to turn over to opposing counsel at trial 1. E.g.—notebooks that witness used [contained work-product of strategy; theories; etc…] = court required to turn over to defense!! 2. If preparing witness to testify = NEVER use anything that don’t want opposing side to testify a. Attorney work-product b. Rather than showing witness entire packet, just show specific documents Cal.—mandatory, whether in trial or out of trial, required to disclose to opponent anything shown to witness Problems: i. 7-16: S testifies for P in complex commercial litigation action…he is asked on direct examination about a particular business meeting the previous year and answers ‘Hmmmmm, I really don’t remember it’ Counsel then shows S the notes S took during the meeting 1. Can P’s counsel give S his own meeting notes to refresh his memoryYES, but S can NOT read notes to jury 2. Notes do NOT have to be authenticated because NOT offered into evidence 3. Notes written by someone else, can S still rely on to refresh memory about meetingYES, but S still can NOT read notes to jury 4. If S reviews notes during direct examination, can he be questioned about notes on crossYES [opposing side will have notes] 5. If S carefully took notes immediately after meeting when events were fresh in his mind, but he has NO current recollection about the meeting, can notes be admitted into evidence at triallay foundation that his recorded recollection made at or about time of events in question; fresh when made; accurate when made; can no longer recallnotes can be admitted into evidence at trial [ONLY given to jury if opposing side consents] = Recorded Recollection 803(5) ii. 7-17: C prosecuted for shoplifting from ‘We R Toys’ store…store clerk, L, testifies for prosecution…on cross, clerk is asked: 1. Isn’t it true that ‘We R Toys’ store has only 4 parking spaces out front and not 5, as you testifiedimpeachment by contradiction 2. You’ve been arrested for child abuse, haven’t youNOT conviction…arrest, therefore improper form, can NOT ask about arrest…probably NOT an act of dishonesty either [won’t come in under 608(b)] 3. You faked workers’ compensation injury last year to collect benefits, didn’t youdishonest act [faking something to get benefits] = admissible under 608(b) 4. You were told by your boss that you’d get an extra vacation day if you testified today, isn’t that correctimpeachment by motive 5. You were convicted last year of shoplifting at ‘Toys R Not U’ store, isn’t that rightSTEPS: Felony or Misdemeanor?? Misdemeanoris it a crime of dishonesty a. Amendment—focus on whether concealment/deception must be proved b. Depends on court 6. You took the tag that says ‘do not remove’ off of your mattress, didn’t youirrelevant = inadmissible…probably argumentative and harassing
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iii. 7-18: S is called an ‘inept tabloid-loving dimwit surgeon’ in local newspaper and she sues for libel…at trial, her brother, B, also a surgeon testifies on her behalf as a character witness about S’s professional competence…B is cross-examined by counsel for D newspaper: 1. B, isn’t it true you punched D newspaper editor in nose outside of restaurant last weekadmissible as evidence of bias/prejudice on part of witness [NOT admissible under 608 because does NOT bear on truthfulness] 2. You are aware that there were 2 incidents in which your sister was cited by hospital for cutting in wrong location, correctcharacter witness testifying about her competence…her competence as surgeon is issue = if NOT incompetent, NO libel [character in issueunder 405 (NOT criminal case = civil case)…stating that she is competent in his opinion]…can ask about prior specific acts that seem to rebut knowledge (using character when character is in issue and impeaching effect) 3. You said on direct that your sister participated in 800 operations…yet in deposition you said 400Prior inconsistent statement = proper impeachment 4. Didn’t you misrepresent you college class rank on medical school applicationmisrepresentation is act of dishonesty/untruthfulness…bears upon whether witness is truthful = prior bad act that can come in as evidence bearing on truthfulness [but can NOT use extrinsic evidence merely for the purpose of contradicting] iv. 7-19: Young Dr. Von Freud testified about the cause of death in homicide prosecution: 1. Asked on cross whether his opinion is consistent with Grey’s Anatomy, authoritative medical treatise in the fieldif contradicts his opinion, would be relevant…question asked to contradict his opinion and if his opinion said he was consistent, but untrue…then] a. Contradicting with Extrinsic Evidence b. Hearsay—learned treatise excepted from exhibition on hearsay [can bring in and read into evidence] c. Can read into evidence—impeachment + prove facts of case 2. Asked on cross whether he convicted of child abuseconviction must satisfy 609(1) crime of dishonesty? NO! (2) felony [relevant because person who violated major law, might lie under oath (probative value is NOT very high)]? If so…admissible UNLESS probative value is substantially outweighed by danger of unfair prejudice to the party [403] a. If 403 tips in favor of admitting = presumption is to admit [must be unfairly prejudicial to the PARTY] b. Unless can come up with good reason to keep it out! 3. Questioned on cross about whether he had been fired from previous employment because he forged medical recordsPrior Bad Act…must leave out part about being fired + personal knowledge problem [how does he know why he was fired] Extrinsic Impeachment: i. Collateral Issue Rule—Permits impeachment through extrinsic evidence for ONLY non-collateral (important) matters. 1. Forms: a. Bias b. A fact at issue c. Testimonial capacities d. Convictions of crime e. Reputation or opinion evidence about the truthfulness or veracity of another witness 2. Example—H testifies for P, M, in breach of contract action on cross-examination…H answers NO to all of the following…on rebuttal can D offer new witness to testify?? a. Asked if dating Mwitness CAN testify that dating because shows bias b. If M agreed to enter into contract without qualificationM agreed to contract because it involves a fact in issue c. H had been convicted of mayhem 10 years earliercertified copy of H’s conviction since convictions of crime are considered non-collateral matters d. H had lied on bar application 4 years earlierprior bad act can NOT be subject of extrinsic impeachment because prior bad acts are considered collateral!!! [even if lying, questioner must take the witness’ answer] ii. Contradiction with extrinsic evidence: 1. OK if NON-collateral a. Facts in issue—contradicts + proves fact in issue in case b. Additional impeachment—contradicts + shows bias, prior conviction, etc…. 2. MUST do more than just contradict!! Problems: i. 7-20: X testifies for defense in action involving sale of real property…X was eyewitness to alleged contract to sell the property
During cross by P, X is asked whether he had been convicted of attempted robbery in 198620 years ago, therefore beyond the 10 year limit…conviction NOT likely to be necessary for resolution of action [ONLY in criminal cases can you bring the old conviction in] 2. X denied having been convicted of attempted robbery and opposing counsel seeks to introduce evidence of convictionprior conviction is NON-collateral…admissible to impeach by conviction + contradiction [assuming…but if it isn’t admissible as prior conviction, would only do 1 thing (therefore collateral and inadmissible)] 3. On cross X is asked whether he was wearing his hearing time at time of alleged sale, he says he was…can opposing counsel call different witness, A, to testify X was NOT wearing hearing aid at time of alleged sale2 things accomplished by extrinsic evidence: contradiction + bears upon witness’ capacity as a witness to perceive 4. On cross X is asked whether he had worn white sneakers on day in question, not red ones as he testified on direct, X answered by denying he wore white sneakers, can opposing counsel call different witness in rebuttalNO, clear example of impeachment by contradiction on clearly collateral point [color of shoes does nothing to advance the case]…rule designed to avoid wasting time 5. X asked whether he said in deposition ‘I was 1st one there for the meeting about the sale,’ when on direct testified that 3rd or 4th person there and X claims he made no such statement, can rebuttal witness present at deposition testifyadmissible, prior inconsistent statement contradicts by impeachment and by witness’ own statement, may also bear upon facts in issue [timing in arrival]…witness’ own inconsistent statement will ALWAYS be NON-collateral 6. X asked on cross whether he owed D large sum of money and he denies it, can P call a different witness in rebuttal to confirmwitness bias is NEVER collateral: contradicts + proves bias ii. 7-21: C prosecuted for perjury and calls best friend, L to testify on his behalf…L testifies C’s reputation in community if for complete honesty, he would never lie [L (C’s rep) = honest; S = L is liar and C’s reputation is liar; G = S is liar and L’s reputation is honest]witness to testify about character of act charged 1. During cross, prosecutor asks L, ‘have you heard that C was expelled from nigh school for cheating on exam 2 years ago?’404(a) and 405(a)…in criminal case, where D has placed character in issue…can illicit information in form of reputation/opinion and can inquire about specific acts on cross to test [PROPER] 2. Prosecutor then calls S in rebuttal to testify: a. In my opinion L is a liar608(a) permits impeachment of witness by character evidence, can offer reputation/opinion as to character of veracity [608-09 deal with character witness] b. Everyone in community says C has reputation for NO veracity at allC is defendant [NOT witness]…400s deal with character of party, because C called character witness, he opened the door to character evidence for prosecution to offer bad character evidence [can offer reputation/opinion evidence about C’s character for truthfulness…because perjury] 3. G [S’s estranged husband] called to testify on behalf of C, on direct G declares: a. In my opinion S is a liar608(a) admissible to impeach a witness by offering character evidence [opinion admissible] b. L’s reputation in community is one of unimpeachable honesty608(a) admissible to rehabilitate witness…can NOT offer good character evidence, until it has been smeared by bad character evidence [bad came 1st from S when said L was liar]must 1st be bad character evidence, then good [reputation admissible] iii. 7-22: B charged with conspiracy to import heroin…at time of arrest, one week after alleged conspiracy concluded, B was apprehended with alleged heroin in his shoe…at trial, B testified in his own defense and denied being part of a conspiracy 1. On cross, prosecution asked B if he had heroin in his shoe at time he was apprehendedadmissible under 404(b) to prove essential element of case [NOT admissible to contradict] = fact that he had heroin may show he had ability to participate in conspiracy and it is more likely to have participated in conspiracy [admissible as ‘other acts’] 2. B denies having heroin in shoe, can prosecution call arresting officer to witness to testify to factcontradicts + if admissible under 404(b) to prove conspiracy it bears upon fact at issue in case [NON-collateral if bears upon fact that is at issue in the case] iv. 7-23: A prosecuted for felony…at trial, A’s fellow gang member, P, testifies on D’s behalf…on cross P is asked whether he belongs to same gang as D and he says no, on rebuttal prosecution calls police officer specializing in gangs to testify that both belong to gang and gang is known for lying to protect fellow members...A convicted and appeals claiming cross of P and police’s extrinsic testimony should have been excludedfocus on cross-examination is bias [in same gang…should be evaluated by jury]; police if
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contradicting + continuing to show bias and may show motive to lie [rules of gang require them to act in certain way] = admissible extrinsic evidence v. 7-24: In civil assault and battery action, defense calls eyewitness, E…she testifies that D was NOT the 1 st aggressor, but was merely defending himself 1. Rebuttal, P calls R who testifies that, in her opinion E is NOT a very truthful personallowed under 608(a): impeachment by character evidence [opinion of truthfulness of witness] 2. In sur-rebuttal, D calls witness, F, who testifies that E has stellar reputation for truthfulness in communitypermissible rehabilitation evidence which is governable under 608(a)…can rehabilitate by positive character evidence vi. 7-25: D, R, charged with unlawful possession of firearm 1. Central prosecution witness, R, testified and on cross asked whether he had made false statement in recent mortgage applicationprior dishonest acts are admissible under 608(b) as prior acts 2. After R denied making false statements, judge permitted prosecutor to offer mortgage application in evidencecan NOT prove with extrinsic evidence [NO application allowed] vii. 7-26: In ‘slip and fall’ action, D, B, testified about the fall…B stated that she observed boxes flying all around the P, I, as he fell…on cross, P’s counsel asked B about her deposition 1 month before trial: 1. B’s failure to mention flying boxes when she was asked during deposition to describe the incidentlawyer is trying to get at theory that if it really happened, you didn’t mention it at earlier testimony which is closer in time to event…falls within impeachment by prior inconsistent statements [prior statement that omits fact that is Significant Fact] 2. Asked B whether I had ever fired her from a job…and B replies NO…can P offer B’s former coworker to testify that B had been fired by Iwould NOT be admissible as prior bad act, however offering to prove witness bias…bias is never collateral [contradicts + bias, therefore extrinsic evidence allowed] viii. 7-27: M was star defense witness in forfeiture action…government claimed that considerable amount of marijuana was found in back seat of D’s car, justifying its forfeiture…anticipating a ferocious cross of M, defense 1st called Marcy to testify that in her opinion M was an unimpeachable character for truthfulness and veracity 1. Can NOT offer Marcy’s good character evidence until character witness has already been impeached!! 2. After M testified on direct, prosecution cross and suggested M recently fabricated her testimony to assist the defense…on re-direct, D asked what did you do when learned about incident and M responded that immediately told friend J same exact thing testified to on direct, that hitchhiker had unloaded and repacked bag before leaving carimpeachment…then admissible to rehabilitate [admissible to rebut recent fabrication = under 801(d)(1)(B) have now met requirements to come in for substantive purpose as well [hitchhiker may have left drugs = TOMA (consistent; face of recent fabrication…testifying witness is declarant and available for cross)] REVIEW PROBLEMS: a. 7-28: A was charged with counterfeiting…BS testified as an eyewitness for the prosecution in its case in chief…may the prosecutor as BS the following questions on direct examination i. Were you convicted of armed robbery in 1990NOT likely admissible because it is too old, hard to see why would want to do this [no need to lessen the sting because beyond 10 years] ii. Do you know that A was previously convicted of counterfeiting in 1991character evidence: prosecutor can NOT get into character at all until D opens the door + it is in the wrong form [reputation/opinion…NOT specific acts] iii. Which is proper impeachment? 1. Isn’t it true that you observed A for just under one minute, and not ‘around 10 minutes’ as you just testifiedcontradicts + challenges testimonial capacity of witness [by saying didn’t see long enough] 2. You’ve hated A since she was promoted ahead of you when you worked together, rightmotive/bias/prejudice 3. You’ve been convicted of shoplifting, correctmisdemeanor, Amendment—possibility that bears upon veracity [depends on if viewed as crime of dishonesty] 4. You’ve also been convicted of aggravated batteryNOT a crime of dishonesty, so MUST be a felony…if aggravated assault is a felony, the witness is just an eyewitness, NOT a criminal D + it is unlikely that the prosecution (party) will be unfairly prejudiced by the witness’ testimony, so although probative value is NOT that high, presumption is to admit the evidence 5. You’ve also spanked your childNOT a crime of dishonesty and NOT a felony = so NOT admissible 6. You have a form of ADD, truebears upon testimonial capacity, therefore admissible as impeachment
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Didn’t you say in your deposition that you weren’t sure of the denomination of the bill A used to purchase her groceries, when you just testified that you were positive she used a $20 billPrior Inconsistent Statements, admissible as impeachment 7-29: Officer C arrested N at S’s Pool Hall after N battered another patron with a pool cue…at trial, officer C testifies i. Officer C is asked on direct examination whether N has a reputation in the community for being violentCharacter of accused…door must be opened by D, excluded as impermissible character evidence in the prosecution’s case ii. On cross-examination, Officer C is asked whether he had arrested N on 2 previous occasionsevidence is being used to show prejudice against N, may or may not be admissible under 403, but since D is seeking to introduce the evidence, prosecution is unlikely to object…admissible, but dumb question for attorney to ask because unlikely bias argument is going to overcome evidence of 2 previous arrests iii. If Officer C denies arresting N on 2 other occasions, can a different witness be brought in on rebuttal to testify that she saw C arrest N twice beforeExtrinsic Evidence, but NON-collateral because goes to contradiction impeachment + bias = admissible iv. Can C be asked on cross examination, ‘Isn’t it true that you were indicted by a grand jury for embezzlement’can ask about embezzlement because crime of dishonesty but NOT as question is stated…can NOT ask about the indictment [form of question is WRONG!] 7-30: Dr. AP testified as an expert witness for the P on the cause of death of a person who died suddenly after returning from a construction job on a Caribbean island i. On cross of Dr., would it be permissible for opposing counsel to ask ‘your conclusion about the meaning of symptoms disagrees with Dr. VH in her treatise, rightproper impeachment by contradiction…treatise can be used as NON-collateral extrinsic evidence because it contradicts the witness and can be used to prove what it asserts [Admissible Hearsay = learned treatises] ii. On cross of Dr., asked ‘you now testify that you reviewed the records twice prior to reaching conclusions’…yes, ‘yet in your deposition taken 6 months ago, you did NOT mention that you reviewed any records at all in reaching your conclusion in response to question of how you preparedadmissible as PRIOR INCONSISTENT STATEMENT iii. If Dr. is asked about and denies having been convicted of filing a false income tax statement, can opposing counsel offer a certified copy of the conviction in evidenceadmissible as NON-collateral extrinsic evidence 7-31: Wankle company brought a contract against Feckless Turbide, Inc….W, a witness to oral agreement testified for P i. On direct, which questions are permissible? 1. What occurred at approximated 4 pm on January 29th [parties agreed to a restructuring of the debt]YES, substance of question is fine 2. Did you observe the parties shake hands at the agreement [no]NO, leading the witness 3. Why were you there [to provide business advice]YES, good open-ended question 4. What did BP, the CEO of Wankle, say and do at that time [he stormed out of the room]DEPENDS, may have hearsay objection; also appears to be a compound question 5. Could you repeat for me how the agreement occurred [Well…]NO, asked and answered (does NOT work 1st prosecutor’s asks on cross), CLUE = anytime you see ‘repeat’ ii. On cross, counsel asks W these questions, which permissible 1. So you were present at the time of the so-called ‘agreement’YES, substance is fine 2. You were NOT in the room where the alleged handshake occurred during the entire meeting, were youDEPENDS, objection for unintelligible question 3. You often dress in out-dated fashions, don’t youNO, irrelevant 4. S also was at the meeting, wasn’t sheDEPENDS, whether S has any relevancy to the case (or fact that another witness was there is relevant) 7-32: A gun fight occurred after a dispute at a card game…one of the players was killed, two people were located as eyewitnesses, fellow card players K and J…both admitted to the prosecutor that they disliked police and did NOT want to testify against their fellow card player, E, who was charged with the crime i. Can prosecutor use leading questions on the direct examination of either K or Jtry open ended questions 1st…if getting NO answers, ask to have witness declared hostile ii. If the prosecution asks K about the evening in question, particularly the incident following the card game that led to the gun fight, can the defense ask about the card game and events that occurred during the game on crossprobably too broad, can ONLY question what was brought in on direct, but prosecution may have opened door enough iii. Is it beyond scope of direct if, on cross, K is asked whether he had recently been convicted of armed robberyattempt at impeachment…admissible under 609 subject to 403…if D is asking however, unlikely to be brought up by prosecutor as being unfairly prejudicial 7.
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7-33: R testified in a land condemnation action for the defense…on direct he is asked where he 1st heard discussions about the government initiating eminent domain proceedings on the property in question, which was located in a neighborhood of modest means, R responded by saying ‘I forget’ i. Can counsel ask R to read his notes on the question to the juryMUST show the witness does NOT remember 1st…must meet requirements of Recorded Recollection (803(5)) ii. Can R rely on his notes during the testimonygenerally take the notes back because ONLY refreshing recollection, but can read the notes to the jury iii. Can counsel suggest to R that ‘it might have been IHOP’Leading Question, but can argue proper leading question under 611 as an attempt to develop the witness’ testimony [doesn’t matter how judge rules because IHOP has already been put out there] iv. Can counsel show R a note that states, ‘it was IHOP, Mr. Scatterbrained!’coaching the witness…can NOT do, if they do = MUST give to prosecution who can turn around and admit to discredit the witness v. What documents or items may be used to refresh R’s memoryanything as long as within courtroom decorum…can bring IHOP breakfast up to them to refresh… g. 7-34: P is prosecuted for perjury…she testifies, claiming that she told the truth when she testified in the previous trial concerning allegations her boyfriend was a major trafficker in narcotics…in rebuttal, can prosecution call P’s estranged brother to testify that P has a reputation in the community for being untruthfulcourt can admit evidence as it bears upon credibility of witness in this case, but jury should NOT consider the evidence as to whether the witness has a propensity to lie, give jury instruction i. If party is charged with having done something false in the past…if asked about act which is admissible as it bears on truthfulness in this case, but can NOT be admissible to prove propensity of lying ii. Judge may try to use limiting instruction but damage is probably donemay be able to use 403 to keep it out iii. P should NOT be on the witness stand… COMPETENCY OF WITNESSES: a. 601: General Rule of Competency—every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. i. VERY broad rule ii. Limitations include judges and potentially jurors iii. Key to competency is the ability to understand the importance of truth and agreeing to undertake thatif can do this = considered competent as witness 1. MOST state laws are just like federal rules, so competent under Fed. Rules usually equals competent under state rules 2. BUT Dead Man’s Statute (one of the parties is dead = in order to NOT be unfair to the dead party, the other surviving party can NOT testify) a. Some states allow that surviving party to testify but require corroboration b. Cal. = allows surviving person to testify but the dead person is allowed to ‘speak’ under a hearsay exception b. 602: Lack of Personal Knowledge—A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. c. 603: Oath or Affirmation—Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. d. 604: Interpreters—An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. e. 605: Competency of Judge as Witness—The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. i. Prevents lawyers from objecting to judge testifying and judge ruling on his own testimonyusually if judge has any information/personal knowledge on facts pertaining to case = they should recuse themselves ii. Cal.—does NOT absolutely prohibit judge from testifying, but bars judge from testifying if opposing counsel objects to it [if call judge and no objection, consenting to mistrial and will assign to another judge…NO attorney in their right mind would consent to judge testifying, therefore a mistrial] iii. NOTHING restricts judge from commenting on evidence = restricts judge from being called as a witness f. 606: Competency of Juror as Witness i. (a) At the Trial—A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. 1. Jurors are incompetent to testify in front of the jury in the case to which the are sitting f.
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Does NOT immunize juror from testifying about wrongdoing on part of jury…can NOT testify about the case in front of the jury b. If do a good job in voir dire will NOT admit a juror that has personal knowledge regarding the case c. MUST object, NOT automatically barred on appeal!! 2. Cal.—does NOT absolutely prohibit juror from testifying, but bars juror from testifying if opposing counsel objects to it [if call juror, and do NOT object…deemed consenting to mistrial and will assign another jury] ii. (b) Inquiry into validity of verdict or indictment—Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. 1. To what extent can jury sitting on case impeach verdict rendered in case… a. NO internal matters—juror can NOT testify to any matter during deliberationsas to why members of the jury decided to render the verdict they did [let’s draw straws because I want to go game and watch b-ball game]…NO food, alcohol, drugs that jurors may take to influence the case is permitted b. External Matters Allowed—juror CAN testify if extraneous information was brought in to jury room to affect the judgment [E.g.—bailiff coming in and telling them to hurry up…should NOT influence in this way] i. Juror performed experiment and reported it during deliberation ii. Juror brining in paper about trial iii. Court room personnel that comes in and influences deliberation 2. Amendment—does permit jurors to clarify clerical errors in verdict form [if form does NOT reflect verdict of jury, can testify to correct clerical error…should poll jurors before they leave court room anyway] 3. Cal.—allows more information to be discussed [information that might mislead], but does NOT allow jurors to testify about mental processes used to come to a verdictdrugs COULD come in, but probably NOT effects of drugs/alcohol 4. Tanner case—criminal mail fraud case…after convicted, juror came forward to testify [7 jurors drank alcohol during recess; 4 smoked marijuana cigarettes and purchased ¼ lb. from another juror during trial; 3 jurors used cocaine]found to be an internal matter [no difference between having a virus; poor night’s sleep]…this type of information that is prohibited to impeachment a verdict under 606(b) Hypnotically refreshed recollection: dealt with as issue of reliability [assumed to exist under Due Process Clauseverdict should be based on reliable evidence…do NOT know how hypnosis works] i. If forget something that happens…can suddenly remember with hypnosis 1. Actually remember with personal knowledge or whether it was suggested to them 2. Confabulation—fill in gaps with knowledge to make whole story make sense ii. Require personal knowledge and require that evidence be reliable…because do NOT know what is going on in hypnosis, there is presumption AGAINST hypnotic information iii. Rock v. Arkansas (1987)—D charged with murdering her husband and underwent hypnotic therapy to refresh her memory [prosecution wanted to exclude, but D demanded to be allowed because part of her own defense] 1. After hypnotized remembered that picked up gun and accidentally went off [gun tested and did have tendency to go off] = unconstitutional to have per se rule restricting hypnotically refreshed information [didn’t go so far as to allow THIS information in] 2. RULE: Arkansas’ per se rule excluding all post-hypnosis testimony infringes impermissibly on the right of a D to testify on his own behalf iv. Cal.—hypnosis specifications [allowed in CRIMINAL cases, NOT in civil cases] 1. Testimony is limited to matters which the witness knew prior to the hypnosis 2. Substance of pre-hypnotic memory preserved 3. Limitation—written record prior to hypnosis and all information provided to hypnotist…subject must be informed consent of hypnosis; hypnosis is videotaped (pre and post hypnosis interviews); performed by licensed doctor, therapist, psychologist; pre-trial hearing to determine admissibility Problems: a.
i. 8-1: R is prosecuted for bank robbery…at trial, R’s wife, G, testifies for the defense…she states that, before R robbed the bank to give to the poor, he was despondent about the state of affairs in this country…prosecution objects claiming that G lacks personal knowledge about R’s state of mindshe can ONLY know what is on his mind if he tells her, then HEARSAY…she can NOT have personal knowledge as to what he is thinking [HS is admitted if statement against party opponent, but defense is called as witness (NOT 801(d)(2)); probably can come in under 803(3)]…might be able to testify that seemed despondent or depressed, but NOT the affairs of the country UNLESS relying on HS exception ii. 8-2: in prosecution for child abuse, C, age 4, is called to testify as an eyewitness, will she be allowed to testifyif she understands difference between truth and falsity and understands negative consequences of lying iii. 8-3: Judge LW lived in suburban neighborhood outside of Chicago…one wintry morning while waking dog, she witnesses neighbors engaged in fistfight that ended in stabbing and Judge coincidentally drew case and presided over trial…can defense call Judge as ‘necessary witness’ 1. Can NOT testify if states that testifying will NOT impair her impartiality 2. If no objection is lodged by opposed counseljudge can NOT testify [reversible error]; in Cal. [allowed if no objection, but consenting to mistrial] 3. Can bailiff, who also lives in neighborhood, testifyyes…but jury could weigh his testimony more heavily [no rule specifically prohibiting, but should NOT occur (should transfer)]object that competency issue and may be unfairly prejudicial 4. Can court report, friend of D, testify as character witnesssame situation as bailiff…could get new court reporter = danger of unfair prejudice 5. Can D’s best friend, who was convicted of murder twice and perjury once, testify for D on minor question of factYES…no disqualification [could be issue of impeachment] iv. 8-4: Jerry, one of 12 jurors in land condemnation dispute, is called to testify about witness’ credibility…opponent to testimony does NOT objectrequired to object to it…at least have attorneys approach sidebar and have attorneys object outside presence of jury [might influence jury] = if attorneys given opportunity to object and no one does = may be considered plain error [members of jury can NOT testify] v. 8-5: I took Berlitz School of Languages correspondence course, but flunked out…even so, I volunteered to act as interpreter for Spanish specking D in drug smuggling case…if prosecution objects, is I entitled to interpretinterpreters are expert witnesses [so they MUST be qualified] = 604 makes interpreters specifically subject to qualification rules of experts…can NOT be found to have sufficient expertise to work as language interpreter [make oath/affirmation that they will give true and accurate translation to witness’ testimony] vi. 8-6: E, N, and U are members of a radical ecological group that allegedly fire-bombed the office of the Sierra Club…only N and U are charged with the bombing, which killed 2 people, E is called to testify for the prosecution…D counsel believes that E had been offered a deal by prosecution in exchange for testimony, but that he would refuse to acknowledge such a deal at trial…D counsel wants to call as a rebuttal witness the assistant prosecutor who the D believes offered E the deal, can the assistant prosecutor testifywhile NO rules prohibit, Model Penal Code of Professional Responsibility may bar lawyer from testifying = should NOT take on case that may be called as witnessduring case, may stipulate and therefore will NOT be called to testify vii. 8-7: J agreed in writing to sell B her boat, pending an inspection…the inspection occurred and was a success…before the completion of the sale, J died…B then brought suit against J’s estate based on diversity and B sought specific performance of the K, at trial, B took the witness stand to testify about the terms of the Kif have very broad Dead Man’s Statute = may NOT be able to testify…if written contract, parol evidence rule prohibits and best evidence rule requires that the K be introduced viii. 8-8: A, age 102, observed a purse snatching 20 yards away…while A could not positively ID the assailant, he was called to testify by the prosecution to provide other relevant information…A concedes that he is deaf in one hear, needs a hearing aid in the other and has poor vision, D objectsNOT disqualified from testifying but may be that what he testifies about can be completely impeachable [maybe NOT]…matters of impeachment, NOT matters that disqualify him as a witness ix. 8-9: L, victim of an armed robbery at gunpoint, can NOT remember what happened during the robbery no matter how hard she tries to recall the events…after she made numerous unsuccessful attempts to recall the crime, she is hypnotized by a certified police neuropsychologist…after the hypnosis, L was able to recall what had occurred during the robbery, even remembering the identity of the perpetrator, will L be allowed to testify at trialprobably can NOT testify in federal case; if in Cal. case MUST have refreshed recollection that relates to existing memory [written statement about what she know; what hypnotists knew she know; pre and post video tapes; pre-trial hearing; meet doctor qualification] x. 8-10: P observed an armed robbery in Pacific Heights one foggy Sunday morning…when P was called to testify for the prosecution, the defense objected, P admitted that he was a heroin addict and had been for
more than a decadehis testimony is permitted, can impeach based on status as addict and whether had had capacity, but does NOT disqualify him!! xi. 8-11: SB, age 4, was the only eyewitness to a homicide that occurred one night at 10 pm in the parking lot of the local convenience store…S’s mom had entered the store while S sat n the car, her mother said, ‘stay here in the car, I’ll be right back’ 1. What must occur for S to be competent to testifycapable of telling the truth 2. Can S’s mother, A, testify even though she admits to knowing and intensely disliking the Dcould testify: competent, but may NOT be credible [impeachable] 3. If S’s mother also had been an eyewitness, could she still testify is she admitted to being intoxicated at time of homicidecould testify: if judge or juror, ONLY prohibition as to testifying…use fact that intoxicated to impeach her xii. 8-12: A was mugged early one evening after eating at FM’s…he was too shaken up to ID the perpetrator and had a mental block about the assailant’s description for months…police, through certified hypnotist, Dr. RC, hypnotized A and obtained a fresh ID of a suspect…the ID resulted in an arrest and trial, can A testify at trial about the perpetrator’s identity 1. Because this is a CRIMINAL case, could testify in Cal. if all provisions are met; federally because several months later and police are trying to get ID, makes it look like they are the ones trying to get the ID 2. Id D had been hypnotized [rather than the witness] = could possibly testify [RULE: COULD have per se rule excluding testimony of witness, but NOT precluding testimony of D (MUST have some sort of ruling to determine competency of D)] xiii. 8-13: J died after a protracted battle with cancer…while his will was being probated, a woman who identified herself as ‘J’s friend M’ claimed that J had promised her $1,000,000 if she provided accounting services for one year…M claimed that she had performed her part of this oral bargain, but that J had NOT performed his, may M collect if brings suit in federal courtDead Man’s Statute: 1. Some jurisdictions permit as long as it is corroborated by other evidence [performing accounting duties; hearsay] 2. Cal.—would permit HS evidence as to what J might have said [unseals lips of surviving person, rather than sealing lips of survivor] 3. Idaho—because it is NOT written, will NOT be allowed [stricter rule]