EVIDENCE
Judge Amy Karan
175 NW 1st Ave. #2926
Miami, Florida 33128
305-349-5674
IMPEACHMENT
Definition: Attack credibility or
believability by showing untruth,
inaccuracy, poor memory, lack of ability to
see, hear etc.
Limited to evidence concerning testimonial
capacity or veracity
Kind of like a ―trial within a trial‖
Impeachment may be by either party, on
direct or cross-exam FRE 607 (No more
―voucher rule‖)
Rehabilitation : re-affirming or re-crediting an
impeached witness
Rehab must come after impeachment
No ―bolstering‖ or ―preemptive" rehabilitation
Intrinsic
From the witness own mouth
Internal
Leading on cross exam
Prior inconsistent statement
Extrinsic
External
Different witness or document (ie conviction or depo)
INTRINSIC IMPEACHMENT
Contradiction (admission/correction during
testimony)
Bias (Feelings for or against a party or
connection to a party or group)
Convictions for crime (FRE 609)
Bad acts (FRE 608)
Testimonial capacity (Vision, hearing,
memory…)
Prior Inconsistent Statement (FRE 613)
EXTRINSIC IMPEACHMENT
Contradiction (by second witness or document
or photographic by certified copy of conviction)
Bad act (prior bad act through cross exam of
good character witness)
Prior inconsistent statements (by second witness
only on non-collateral matters)
Learned treatise (Hearsay exception for expert
impeachment)
Prior crime (felony or crimen falsi)
Character for truth or untruth by opinion or
reputationthrough second witness commenting
on a witness who has already testified)
COMPETENCY OF WITNESSES
General Rule:
Every person is competent to be a witness.
Age, religious belief, mental incapacity, criminal
record, or connection with the litigation DO NOT
disqualify a person as a witness. FRE 601
Presiding Judge or Juror Incompetent FRE 605-606
Read 606(b) re: verdict inquiry
PRELIMINARY MATTERS FOR COURT
Personal Knowledge FRE 602
Must only meet minimum credibility level with
regard to ability to observe, recollect and recount.
Oath or affirmation FRE 603
Understand the duty to tell the truth.
IMPEACHMENT
Question #1
IMPEACHMENT #1
George Washington, believing
Benedict Arnold will be his best
witness, calls Arnold to the
stand. To Washington’s
surprise, Arnold testifies in a
light highly unfavorable to
Washington. Washington
seeks to minimize the damage
to his case by impeaching
Arnold, his own witness.
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #1
ADMISSIBLE. Under FRE
607, a party can impeach the
credibility of a witness even if
the witness was called by that
party. Surprise not required.
Only CAVEAT is that you
cannot call a witness simply
to impeach.
IMPEACHMENT
Main methods:
By attacking W’s general character
609 Past crime,608 prior bad acts, bad reputation or
opinion
By prior inconsistent ,sworn 801(d)(1)admissible substantvely
or not sworn 613
By showing bias
By showing sensory or mental defect
By other evidence that contradicts W’s testimony
i.e. 2d witness, but NOT on “collateral issues”
A witness may be impeached by any party, including the party who
called the witness FRE 607
Never based on religious belief FRE 610
Cross my HEART QUESTIONS
Jim Stone is sued by his neighbor for the
conversion of his neighbor’s $2,500.00 bicycle.
At trial, Jim testifies on his own behalf, claiming
misidentification. Jim offered an alibi. He
asserted that he was home watching a movie,
Cinderella, when the alleged theft occurred. On
direct examination, Jim stated, ―I didn’t leave my
house all evening. If someone tried to take that
fancy bicycle, I’m sure sorry. But I can tell you
this, I was home watching Cinderella and her
prince.‖ On cross-examination, Jim is
questioned as follows:
Cross my HEART QUESTIONS
continued
1. Plaintiff’s Attorney: Isn’t it true that on the day in
question, you worked from 1:30 p.m. to 6:00 p.m. and
not the 6:45 p.m. as you just testified?
Defendant’s Attorney: Objection! Irrelevant!
Question: What ruling and why?
Answer: This is permissible impeachment by
contradiction.
2. Plaintiff’s Attorney: Are you going to lose your job if
you are found liable in this case?
Defendant’s Attorney: Objection!
Question: What ruling and why?
Answer: Permissible to show bias
Cross my HEART QUESTIONS
Continued
3. Plaintiff’s Attorney: Weren’t you convicted of a felony,
the distribution of marijuana, three years ago?
Defendant’s Attorney: Objection!
Question: What ruling and Why?
Answer: Permissible 609 felony conviction
impeachment
4. Plaintiff’s Attorney: You cheated on your Law School
Admission Test examination last year, didn’t you?
Defendant’s Attorney: Objection!
Question: What ruling and why?
Answer: Permissible impeachment by untruthful acts
608(b)
Cross my HEART QUESTIONS
Continued
5. Plaintiff’s Attorney: You have
intermittent amnesia , Mr. Stone, don’t you?
Defendant’s Attorney: Objection!
Question: What ruling and why?
Answer: Permissible impeachment of testimonial
capacity: memory
6. Plaintiff’s Attorney: Didn’t you say in your deposition
on June 5th that you saw the movie Diehard II on the
night in question, not Cinderella as you just testified?
Defendant’s Attorney: Objection!
Question: What ruling and why?
Answer: Impeachment by prior inconsistent statement
not under oath see 613
BUT NOO QUESTION
Carolyn testified in a commercial litigation action. Which of the
following questions are permissible during the cross-examination of
Carolyn? Explain.
Question # 1: ―You attended the March board of directors meeting,
and not the May meeting as you testified on direct examination,
correct?‖
Answer: Permissible impeachment by contradiction. On cross exam,
facts may be elicited that the witness will have an opportunity to
admit or deny
Question # 2: ―You left your office last Wednesday at 5:30 p.m., not
7:30 p.m. as you testified on direct examination, right?‖
Answer: Also permissible
Question # 3: ―Your boss, Ms. Sanders, was wrong when she
testified that she deposited the March proceeds on March 4th, wasn’t
she?‖
Answer: Substance of question is permissible. Form is improper. A
lay witness is not permitted to give their opinion on another’s
testimony.
THE RIGHT DIRECTION
QUESTION
Shawn is prosecuted for allegedly battering Bobbi on a Colorado ski
slope. The only eyewitness is Shawn’s sister, Tya. The prosecutor
calls Tya as a witness. On direct examination, the prosecutor
questions Tya.
Prosecutor: Tya, you are the sister of the defendant, Shawn,
correct?
Defense Counsel: Objection. The question is leading and therefore
improper.
Question # 1: What ruling and why?
Answer: Leading., but probably permissible as background and
because witness is identified with opposing party. Deft.’s sibling is
also presumptively hostile.
Question # 2: If this is proper impeachment, can it occur on direct
examination? Why?
Answer: yes, you can steal opponent’s thunder and probably should,
otherwise jury thinks something is being hidden.
The Right Direct-ion Continued
Prosecutor: Tya, are you currently facing a criminal charge of
attempted murder?
Defense Counsel: Objection. This question is improper
impeachment on several grounds.
Question # 3: What are the grounds for this objection?
Answer: Improper impeachment because there is no conviction.
Bad act impeachment under 608 must deal with truthfulness. 403
also applies to probably exclude..
Prosecutor: Have any deals been made in return for your testimony?
Question # 4: What ruling and why?
Answer: Criminal charge demonstrates possible bias, which is
always admissible and relevant.
Defense Counsel: Objection
Question # 5: What ruling and why?
Answer: Appropriate follow up. Some judges may want
you to wait until re-direct…
FRE 609
Impeachment by Evidence of Conviction of
Crime
(a) General Rule. For the purpose of attacking the
credibility of a witness:
(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 defendant 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
FRE 609(a)(2)
Crimen Falsi
(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
IMPEACHMENT
Question #2
IMPEACHMENT #2
Yolanda is a witness for the defendant in a
civil case. The plaintiff seeks to impeach
Yolanda by offering proof of her prior
conviction for taking property by false
pretenses, a misdemeanor. The
defendant objects. What result?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #2
ADMISSIBLE. Under FRE 609(a)(2), if a witness has been
convicted of a crime involving dishonesty or a false statement
("crimen falsi"), that conviction is admissible for impeachment
purposes even if the offense was a misdemeanor. The crime of
taking property by false pretenses involves false statement and is
treated as a crimen falsi, and thus usable for impeachment.
Observe that Rule 609(a) makes an important distinction between
crimen falsi and other crimes. Where the crime is not a crimen
falsi (and thus admissible only if it's a felony), 609(a)(1) makes
admissibility "subject to Rule 403," so that the judge has
discretion to exclude the conviction if she finds that the
"probative value is substantially outweighed by the danger of
unfair prejudice . . . ." But 609(a)(2), dealing with crimen falsi,
makes no reference to 403, and simply says that the evidence of
the conviction "shall" be admitted - so where, as here, the crime
involves false statement (whether misdemeanor or felony), the
judge must admit it for impeachment no matter how little its
probative value or how great its prejudicial effect on the
opponent.
Also, observe that misdemeanors that do not reflect on the
witness' veracity are inadmissible to impeach.
IMPEACHMENT BY PRIOR
CRIMINAL CONVICTION FRE 609
General Rule: In both civil and criminal cases evidence
of the conviction of a crime not remote in time may be
used to attack the credibility of a witness if:
The crime was punishable by death or imprisonment in
excess of one year, OR;
Involved dishonesty or false statement regardless of the
punishment. “Crimen falsi”
Misdemeanor or felony
If felony, and not a crime of dishonesty, extra protection
afforded to criminal defendants because only admissible if
probative value outweighs prejudice (Reverse 403)
If witness, no special protection, it is admissible unless
W shows prejudice outweighs probative value (Normal
403)
RULE 609 NOT ONLY A
CRIMINAL RULE
Remember, you should run all your
witnesses through NCIC and order, in
advance, certified copies of all such
convictions. This includes your own
witnesses too!! If you know of such
convictions, be prepared for arguments in
limine.
IMPEACHMENT
Question #3
IMPEACHMENT #3
Zoom Crashbang is a witness in
a civil case. To impeach him,
the adverse party offers
evidence that Zoom has been
convicted of vehicular homicide,
a felony. Is this evidence
admissible to impeach?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #3
ADMISSIBLE. Even though the
matter doesn't reflect on witness’
truthfulness or honesty and is not a
crimen falsi. FRE 609(a) Subsection
1 says that such convictions "shall
be admitted, subject to Rule 403" if
the witness is not the accused in a
criminal case. So the judge must
admit the conviction unless in the
exercise of her discretion finds that
the test of Rule 403 (allowing
exclusion of relevant evidence
whose "probative value is
substantially outweighed by the
danger of unfair prejudice . . . .") is
FRE 609 (b)
Time Limit
(b) 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 ten years old as calculated
herein, is not admissible unless the proponent gives 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.
IMPEACHMENT #4
Jesse James gives up his life of
crime and, after he’s paid his debt to
society, becomes an accountant.
Twenty years after his last felony
conviction, for fraud and robbery,
and fifteen years after he was
released from prison, he is called as
an eyewitness in a civil automobile-
collision case. Under the FRE, may
he be impeached with evidence of
the larceny conviction?
A. Admissible
B. Not Admissible
ANSWER TO IMPEACHMENT #4
NOT ADMISSIBLE. Under FRE 609(b), evidence of a
conviction is normally inadmissible if a period of more than ten
years has elapsed since the date of the conviction or of the
witness' release from confinement, whichever occurred later.
However, an exception to this general rule exists if both of the
following conditions are satisfied:
.The court decides that, "in the interests of justice . . . the
probative value of the conviction supported by specific
facts and circumstances substantially outweighs its
prejudicial effect." 609(b); and
..The party trying to use the old conviction gives 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."
609(b).
Even if the second requirement was satisfied here (we're not
told), it's very unlikely that the court will find the first one to
have been, since the conviction is much more than 10 years
old, and there don't seem to be any "specific facts and
circumstances" here giving it special probative value.
IMPEACHMENT BY PRIOR
CRIMINAL CONVICTION
Generally inadmissible if conviction or release
from prison more than 10 years old
Exception if special circumstances make it highly
probative AND advance notice of intent to use is
given
Effect of:
Pardon
Appeal
Reversal
Juvenile Adjudication
Fried Forgery Question
Sylvia is prosecuted for forging signatures
on applications for food stamps. The
prosecution, in its case-in-chief, offers a
witness, Wally, who will testify that Sylvia
(1) has been convicted of forgery on three
prior occasions, and (2) was charged with
embezzlement on a fourth prior occasion.
Fried Forgery Question Contd.
1. Are these convictions and criminal charge
admissible?
Answer: The key to this question is that the witness must
testify before impeachment is allowed. The rules do not
permit ―preemptive impeachment,‖ before the witness
testifies
2. If it had been Wally, and not Sylvia, who was
convicted of forgery and charged with embezzlement,
would the convictions and charge be admissible?
Answer: If the impeachment is of Wally the Witness, the
forgery convictions would be permitted. These are
crimes of dishonesty or false statement under Rule 609
(a) and are admissible without reference to Rule 403.
But rule 609 only deals with convictions. The
embezzlement is not a conviction.
609(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.
609(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.
609(e)
Pendency of Appeal
The pendency of an
appeal does not
render evidence of a
conviction
inadmissible.
Evidence of the
pendency of an appeal
is admissible.
IMPEACHMENT
Question #4
METHOD OF PROVING PRIOR
CONVICTION
May be elicited on direct or cross or established
by public record, usually by certified copy
May question on nature of offense, court, location
and date
If witness admits, impeachment is concluded
If witness denies, evidence proving conviction
must be introduced
Details of offense not proper inquiry
Limiting/cautionary instruction proper
PROPER 609 IMPEACHMENT
1. Let the record reflect I am showing counsel Exhibits a-
c for id. (previously marked by clerk)
2. To W:Have you been convicted of any felonies?
3. Yes,
4 How many?
5. 3 (if correct impeachment concluded)
6. Have you ever been convicted of any felonies or
misdemeanors involving diishonesty?
7. No (if correct impeachment concluded)
8. If answers incorrect, may question on date and nature
of offense or admit certified copies to ct and jury.
Apple Question
Johnny Apple was prosecuted for
attempted murder. Johnny testified at trial
and denied committing the crime charged.
On cross examination, the prosecution
attempted to impeach Johnny with the
following convictions. Which of the
convictions, if any, can be used to
impeach Johnny? In addition, what test
applies in determining unfair prejudice?
Cont…Apple Question
1. A seven year-old conviction for attempted murder.
2. A two year old conviction of assault, punishable by six
months in jail and a fine of $ 1,000.
3. A 12 year old juvenile adjudication for murder.
4. A 10 year old conviction for aggravated battery,
punishable by a maximum of three years in prison, for
which the defendant was sentenced to two months
incarceration, sentence suspended.
5. A five-year-old conviction for grand theft, for which the
defendant was sentenced to six months incarceration.
Answer: One Bad Apple
1. The attempted murder conviction satisfies the felony
requirement under Rule 609(a). Note that a felony conviction
is a crime that is punishable by more than one year of
confinement; the felon need not actually receive a sentence
of more than one year in prison.
Because the accused is the one being impeached, a special
―equal‖ or reverse 403 balancing test applies– does the probative
value of the conviction outweighs its prejudicial impact? If the
answer is yes, it is admitted.
Even if it is otherwise permissible, Rule 609 imposes a a general
―staleness‖ limitation of 10 years. If the conviction– or release
from confinement—is more than 10 years old, it will generally be
inadmissible. There is a provision in the rule to get in older
convictions too but they have to specially relevant, which is a hard
test to beat.
Cont…Apple Answer
2. This simple assault conviction is not admissible. It is a
misdemeanor. It is not crimen falsi and thus cannot qualify
as the other type of permissible impeachment, a crime of
dishonesty or false statement.
3. A juvenile adjudication is generally inadmissible and cannot be
used against an accused,.
4. The aggravated battery conviction is a felony. As such, it would
be admissible if its probative value outweighs its prejudicial
impact. (Because a criminal defendant is being impeached a
special “equal” or reverse 403 balancing test applies).
5. Does a sentence of less than one year affect whether this
conviction is a felony or misdemeanor? NO. If grand theft is a
felony (and it generally is), then this conviction is
admissible—provided, of course, that it passes the special
“equal” balancing test of Rule 609(a), since the witness is the
defendant.
FRE 608
Evidence of Character and Conduct of
Witness
(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) the evidence may refer only to
character for truthfulness or untruthfulness, and
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.
Liar Question
Janet is prosecuted for committing perjury during her
testimony before the grand jury. At trial, she testifies on
her own behalf and is asked the following questions on
cross-examination:
Prosecutor: You were arrested for lying on your income
tax statement last year, weren’t you?
Defense Counsel: Objection. Improper impeachment.
Answer: Sustained. Does not involve a conviction.
While the subject ―untruthful act‖ is related to the
witness’ truthfulness Rule 608 (b), it is improper to ask
about an arrest relating to the act. Question must be
limited to the actual commission of the bad act
Liar Question Contd.
Prosecutor: You deceived your boss 3
weeks ago, didn’t you when you claimed
you missed an important meeting because
your train was late?
Defense Counsel: Objection. Improper
impeachment.
Answer: Overruled. Permitted by Rule
608 (b)
IMPEACHMENT BY REPUTATION
OR OPINION EVIDENCE FRE
608(a)
General Rule: Extrinsic evidence (i.e. a second witness)
may testify that the witness in question is untruthful. May be
opinion or reputation evidence.
Not reputation or opinion about ―general bad character‖
Specific acts of conduct not allowed,exccept for on x-
exam
Witness may not offer evidence of truthfulness until her
character has been attacked
Criminal defendant open to this type of impeachment as
soon as he takes the stand
FRE 608(b)
Specific instances of conduct. Specific
instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
credibility, (other than conviction of crime as
provided in FRE 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) concerning the
witness’ character for truthfulness or
untruthfulness, or 2) concerning the character
for truthfulness or untruthfulness of another
witness as to which character the witness being
cross examined has testified.
IMPEACHMENT BY
PRIOR BAD ACTS
FRE 608(b)(1)
General Rule: Questions about prior bad acts are allowed, even if no
conviction, through cross examination
Must be probative of truthfulness or untruthfulness
Lying, cheating, embezzling, NOT acts of violence
Not arrests
No extrinsic evidence
Questioner must “take answer”
Must have good faith basis to believe prior act occurred
Apply FRE 403 balancing
CAUTION: Be very careful with criminal defendants
CROSS EXAM OF CHARACTER
WITNESS FRE 608(b)(2)
General Rule: A character witness who
testifies regarding another’s reputation for
truth can be cross examined regarding
specific instances of conduct
Can be convictions, arrests, indictments, prior
uncharged bad acts
Examiner must have good faith basis
FRE 403 applies
Court should use discretion in allowing
FRE 608
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 which relate only to
credibility.
IMPEACHMENT
Questions
#5 ,#6, and
#7
IMPEACHMENT #5
Lucky Louie appears as a witness
for the defense in a negligence
suit. On cross-examination,
plaintiff, in order to impeach
Lucky, asks him: ―You falsified
your tax return two years ago,
didn’t you?‖ Defense objects, on
the grounds that Lucky was never
charged with tax evasion. How do
you rule?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #5
ADMISSIBLE. The question is
proper, because a witness can be
impeached by inquiring, on cross-
examination, about specific
unconvicted bad acts, if these are
"probative of truthfulness or
untruthfulness." FRE 608(b). Filing a
false tax return is generally accepted
as probative of truthfulness. (Note
that under 608(b), the use of such
questions about unconvicted bad acts
is "in the discretion of the court.")
IMPEACHMENT #6
Robin Hood is on trial for shooting Little John. Maid
Marion is called as a witness for the prosecution. On
cross examination the defense counsel seeks to
impeach her by asking: ―Isn’t it true that you broke into
the corner store, stole all the candy and burned the place
down?‖ Maid Marion denies it. She has never been
convicted of these acts. Later, during the defense case,
Robin Hood’s lawyer offers the testimony of Big Bill that
he personally witnessed Maid Marion steal the candy
and burn the store down. Is this evidence admissible to
prove that Marion’s denial on cross exam was a lie?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #6
NOT ADMISSIBLE. Under FRE
608(b), specific instances of the
conduct of a witness to attack or
support credibility may not be proven
by extrinsic evidence. Thus,
unconvicted bad acts, when used to
impeach the witness' general
character for truthfulness, can be
proven only by intrinsic evidence -
that is, through the testimony (given
under cross-examination) of the
witness who purportedly committed
the bad acts (here, Maid Marion).
Once the witness denies the bad
acts, the examiner must "take the
answer of the witness."
IMPEACHMENT #7
McCoy is a witness in a case. To
impeach him, Hatfield is called to
the stand, and testifies: ―I’ve known
him for years, and I think he’s a
two-faced, lying swine who
wouldn’t know the truth if it hit him
in the face.‖ The opposition
objects to this form of
impeachment. Under FRE, how do
you rule?
A. Admissible
B. Not Admissible
ANSWER TO IMPEACHMENT #7
ADMISSIBLE. Under FRE 608(a), the credibility of a
witness may be attacked by evidence in the form of
opinion or reputation, so long as the evidence refers only
to the witness' character for truthfulness or
untruthfulness. The evidence here qualifies as opinion
evidence. (Under the common law, the credibility of a
witness can only be attacked by reputation evidence, not
[as here] opinion evidence.)
Observe that Hatfield wouldn't be allowed to testify to
particular acts of untruthfulness by McCoy; these would
violate the rule against showing specific bad acts by
extrinsic evidence. See FRE 608(b). Also, note that
evidence of the witness' truthfulness (not, as here,
untruthfulness) cannot be introduced by the proponent of
the witness until the witness' character has been
attacked.
PROPER 608(A) BAD ACT
IMPEACHMENT
Any W who takes stand open to this type of
impeachment:
X-Exam: Isn’t it true you lied on your Bar Admission
application?
Answer: NO, I wouldn’t do that.
Q: Let the record reflect that I am showing opposing
counsel what has previously been marked by the clerk
as exhibit D . I now seek permission to approach the
witness.
Q:I am now showing you, your Bar App. for this State dated
this year, and draw your attention to the portion where
you claim you were admitted to NY and FL., but that is
not true is it?
A: You got me…
FRE 613
PRIOR STATEMENTS OF
WITNESSES
(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.
(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 party-opponent as defined in FRE
801(d)(2).
IMPEACHMENT BY PRIOR
INCONSISTENT STATEMENT
General Rule: W’s credibility may be impeached by showing she
made a prior inconsistent statement
Foundation laid (under oath or not. When and where made and
who present) W given opportunity to explain or deny
Under FRE may be after statement has been offered,
Extrinsic proof only allowed if 2nd witness or document
Not a collateral matter
Inconsistency is material
Jury should be cautioned that prior statement is
Only impeachment, not substantive evidence if not
made under oath
PRIOR STATEMENT BY
WITNESS 801(d)(1)
Under this rule, some prior statements of a
witness are accorded full substantive
admissibility:
Prior inconsistent statements made under oath
Prior consistent statements to rebut a charge of
recent fabrication or motive
Statements of identification of a person
PRIOR INCONSISTENT
STATEMENT AS SUBSTANCE
The statement must
be inconsistent with
the witness’ trial
testimony and have
been given under
oath at a trial,
hearing, other
proceeding or at a
deposition.
PRIOR INCONSISTENT
STATEMENTS
In order to be substantively admissible, all
the requirements of 801(d)(1)(A) must be
met.
If they are not ALL met, the statement is
hearsay and may be admissible as
impeachment only if the requirements of
Rule 613 are met.
IMPEACHMENT
Questions
#8, #9 and
#10
IMPEACHMENT #8
Hamlet is on trial for the murder
of Yorick. The prosecutor claims
Hamlet had long been jealous of
Yorick. Hamlet denies knowing
Yorick at all. The prosecutor
calls Horatio as a witness, who
offers to testify: ―Hamlet told me,
―Alas, poor Yorick - I knew him
well, Horatio.’‖ Admissible?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #8
ADMISSLBLE. Horatio's statement, of course, contradicts
Hamlet's testimony. Impeachment by contradiction is
allowed, as a general rule, only where the contradiction
relates to a material issue. (If the contradiction doesn't
relate to a material issue, it is inadmissible under the
"collateral issue" rule.) This requirement is satisfied here,
because the contradiction relates to Hamlet's
acquaintance with Yorick, and that acquaintance is a
material issue in the case (the prosecution's claim of
jealousy couldn't be true if Hamlet didn't even know
Yorick and Hamlet’s defenses is that he did not know
him). Note that no foundation is necessary prior to
introducing such contradiction evidence.
IMPEACHMENT # 9
Hatfield sues McCoy for trespass. Hatfield’s lawyer calls
neighbor Rick to the stand, and asks him if he saw McCoy at
the Hatfield’s house on the night in question. Rick answers: “I
was there, and through the window I saw the defendant
sleeping in the Hatfield’s bed.” McCoy’s lawyer can’t shake
Rick’s statement during cross, and makes no reference to any
previous statement made by Rick. Rick is dismissed from the
stand, and moves out of the jurisdiction without leaving a
forwarding address. Later, McCoy’s lawyer attempts to enter
into evidence Rick’s sworn statement, taken at the time of the
incident, saying he hadn’t seen McCoy or anyone else at the
house. The Hatfield’s counsel objects, claiming a proper
foundation for admitting Rick’s prior statement is lacking.
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #9
NOT ADMISSIBLE Under both the common law and FRE 613(b), when prior
.
inconsistent statements are offered to impeach a witness, the witness must be
given a chance to explain or deny the prior inconsistency. This provides the
foundation for the introduction of the inconsistent statement. Since Rick is now
unavailable to explain or deny the prior statement, the statement should be
excluded.
Note that, under the common law, the rule of Queen Caroline's Case required
that the witness be given a chance to explain or deny the prior statement
before being questioned. However, the FRE and most modern courts do not
require this - it's enough that the witness is given the chance to explain
afterwards.
The party attacking Rick's credibility wasn't required to actually call Rick back
to the stand to explain or deny; McCoy was entitled to thrust onto the party
who wants to explain the inconsistent statement (the Hatfield’s) this burden of
calling Rick back. However, the attacking party does bear the risk that the
witness will have become unavailable by the time the other party learns of the
inconsistent statement and wants to explain it. McCoy's lawyer should have
used the inconsistent statement during the original cross-examination of Rick;
having waited, the lawyer loses the right to admit the statement now that Rick
is unavailable to explain or deny.
IMPEACHMENT #10
Sam Smith is on trial for murdering
his wife by pushing her out of a
window. Wanda testifies for the
prosecution: ―I saw the whole thing
on my way to a Girl Scout
Jamboree.‖ The defense calls
another witness, Wilfreda, who
testifies that Wanda was really on
her way to a date with her boyfriend.
Upon objection, the defense claims
the question is permissible because
it reflects on Wanda’s veracity. How
do you rule?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT 10
NOT ADMISSIBLE. Under the "collateral issue" rule,
extrinsic evidence can only be introduced to
impeach a witness if it also bears on a substantive
issue in the case (or if it clearly goes to bias). Here, if
the "boyfriend" testimony is true, it only proves
Wanda is lying about where she is going - it doesn't
make any substantive fact at issue in the case either
more or less probable. So the collateral issue rule
applies, and the evidence is inadmissible.
COMPARE: Suppose the defense called Wilfreda to
impeach Wanda as follows: "Everyone in town
knows Wanda is a big liar!" Here, the testimony will
be admissible, because witnesses may be
impeached via extrinsic evidence in the form of poor
reputation or opinion for honesty, under FRE 608(a)
.
Yea RIGHT QUESTION
Ted, the primary witness for the defense in a tort
action, state on direct examination that he was
not aware that a lawsuit had be filed until four
days prior to trial. On cross-examination, Ted is
asked whether he told a good friend eight
months earlier, right after the suit had been
brought, ―I hear that good old Plaintiff filed suit
this week.‖
Permissible?
Yeah, Right
This is permissible impeachment by prior inconsistent
statement. Sometimes inconsistency is a matter of
degree, and sometime depends on perspective,
perception and experience. Under the rule, counsel must
show the opposition the prior statement upon request,
but need not give the witness a chance to explain or
deny before being questioned about it. However, the
opportunity to explain must be given before extrinsic
evidence of the prior inconsistent statement may be
offered.It must be material, not to violate the collateral
impeachment rule before extrinsic witness or evidence
can be presented
IMPEACHMENT BY BIAS
General Rule: W may be shown to be biased in
favor of or against a party or have interest in
the outcome of a case
Usually used in case of friends, family,
employees, expert witnesses
May be shown by extrinsic evidence, never
collateral
Foundation must be laid by asking W about
the alleged bias before the extrinsic evidence
may be offered
Buddies Question
The defendant, Alexander, is charged with the
unlawful possession of a firearm by a felon. At
trial, the defendant's friend, Preston, testifies for
the defense. Preston states that the gun in
question, found on the ground near Alexander,
was really Preston’s. On cross-examination, the
prosecutor asked Preston whether he and
Alexander are both members of the same gang,
―Red’N Blue Violins.‖
Admissible?
Buddies Answer
The question is permissible impeachment
and is designed to indicate bias on the
part of the witness
IMPEACHMENT BY
SENSORY OR
MENTAL DEFECT
General Rule: W may be impeached by
showing that her capacity to observe,
remember, or narrate events correctly has
been impaired.
Use of alcohol or drugs
Split of authority on addiction testimony
Usually not allowed unless witness
high at time of incident
IMPEACHMENT
#11
IMPEACHMENT QUESTION #11
Dr. Jones witnesses a hit-and-run car accident one
evening. When the perpetrator is sued for negligence, Dr.
Jones is called as a witness by the victim. On cross-
examination, he’s asked: ―Isn’t it true that you have
frequent blackouts in the evening, after which you can’t
remember anything?‖ Jones denies it. Counsel then
seeks to offer a newspaper story about Jones’ periodic
blackouts which result in his arrest and/or hospitalization.
Opposing counsel objects, claiming extrinsic evidence is
impermissible here, because Jones’ blackouts are a
―collateral matter.‖ How do you rule?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT #11
ADMISSIBLE. The use of extrinsic
evidence to impeach is always
permissible when a witness'
perception, memory, or mental
capacity is questioned. Since a
witness' ability to perceive and
remember are always deemed
material, the "collateral issues" rule
doesn't apply. (The "collateral issue"
rule forbids impeachment with
extrinsic evidence only if the
evidence is solely relevant for
impeachment.)
REHABILITATION OF
IMPEACHED WITNESSES
General Rule: A W’s credibility may be supported
only to rehabilitate it, that is to repair damage done
by the other side
No bolstering ( no supporting credibility prior to attack)
unless W has made prior out of court identification
OR
Prompt complaint made by rape victim
Rehabilitation must ―meet the attack‖
Good character evidence only allowed to rebut reputation or
opinion testimony for untruthfulness, prior conviction, or prior bad
act NOT bias or erroneous testimony
IMPEACHMENT
Question #12
IMPEACHMENT #12
Cy Witness sees Guy Fawkes
set fire to the Houses of
Parliament. In Fawkes’ arson
trial the prosecution calls Cy as a
witness, and he testifies as to
what he saw. The defense does
not cross-examine Cy. The
prosecution then offers the
testimony of Big Scoop, a
newspaperman to whom Cy told
the story at the time of the fire, to
show Cy hasn’t changed his
story since the incident. Is Big’s
testimony admissible?
A. Admissible
B. Not Admissible
ANSWER IMPEACHMENT 12
NOT ADMISSIBLE. A witness' testimony
can't be "bolstered" unless and until he's
been impeached. (There are exceptions,
such as a showing that the victim in a rape
case made a timely complaint. But no
exception applies here.) Since the
defendant didn't cross-examine Cy at all, it
certainly couldn't have impeached him.
Child Abuse
In a prosecution for child abuse, Chirelle,
age 4, is called to testify as an eyewitness.
Will she be allowed to testify? If she is
permitted to testify, what questions would
you ask Chirelle to establish that she
understands what it means to tell the
truth?
Answer
Under the Rules, all witnesses are presumed to be
competent, including children. All that competency
requires is the ability to understand what it means to
tell the truth.
The following questions would indicate that a child
understands what it means to tell the truth:
1) What happens to you if you do something bad?
2) If you don’t tell the truth, is that bad?
3) What happens to you if you do something good?
4) If you tell the truth, is that good?
5) Do you know what it means to tell the truth?
6) What happenss to you if you don’t tell the truth?
7) Why do you get punished if you don’t tell the truth?
Anyone But You
Judge Lis Wilber lived in a suburban neighborhood
outside of Chicago. While walking her dog,
Pudge, she witnessed two of her neighbors
fistfighting. One neighbor took out a knife and
stabbed the other, resulting in a serious wound.
Judge Wilber coincidentally drew the case and
presided over the trial. The defense calls Judge
Wilber as a ―necessary‖ witness.
Can she testify if she states from the bench
that testifying will not impair her impartiality?
Answer
No. Rule 605 bars the presiding judge from
testifying as a witness.
If no objection is lodged by the opposing
counsel, can Judge Wilber then testify?
No objection is required to preserve one’s
rights under this provision.
Can the bailiff, who also lives in her
neighborhood, testify?
Answer
There is less likelihood of prejudice or
compromise of the judicial system integrity
if the bailiff testifies than if the judge does
so. If an objection is lodged, it would seem
that the bailiff should be excused from his
or her duties at trial. The court fears that
the defendant would not be able to attack
the credibility of the bailiff who may be
identified with the trial judge.
FRIENDS
1) Can the court reporter, who is a friend of
the defendant, testify as a character
witness?
1) Can the defendant’s best friend, who
was convicted of murder twice and
perjury once, testify for the defendant on
a minor question of fact?
Answers
1) A substitute court reporter should be found to
replace the testifying court reporter. The
integrity of the judicial system would be
compromised if the court reporter both testified
and served as court reporter in the trial.
2) This problem illustrates the difference between
the competency and credibility. The best friend
is competent to testify. The friend’s convictions
pertain to the friend’s credibility, not
competency.
Dead Again and Again
Josie agreed in writing to sell Bernard her boat,
pending an inspecting. The inspection occurred
and it was a complete success. Before the
completion of the sale, however, Josie died.
Bernard then brought suit against Josie’s estate.
Bernard sought specific performance of the
contract. At trial, Bernard took the witness stand
to testify about the terms of the contract.
Will he be allowed to testify about the
agreement if a “dead man’s statute” applies?
Explain.
Answer
Objection overruled.
There is no ―dead man’s‖ statute under federal
law. In a diversity action where state law
supplies the rule of decision, however, a dead
man’s statute may apply. Most dead man’s
statute apply to oral conversations, transactions,
or agreements offered against the deceased.
Writings are generally excluded because there is
much less danger of fabrication. Bernard can
testify about the agreement because it was in
writing.
Hypnotized
Lil, the victim of an armed robbery at gunpoint,
cannot 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, Lil was
able to recall what had occurred during the
robbery, even remembering the identity of the
perpetrator.
Will Lil be allowed to testify at trial?
Answer
YES. Lil will be allowed to testify, but any testimony
emanating from the hypnosis may be excluded. The
rules pertaining to hypnotically refreshed testimony vary
considerably from jurisdiction to jurisdiction. The court
held in Rock v. Arkansas, 483 U.S. 44 (1987) that
hypnotically refreshed testimony may be distorted and
unfairly prejudicial. Consequently the evidence is
excluded in many jurisdictions. The court in State v.
Hard, 432 A.2d 86 (N.J. 1981) held that such testimony
is permissible provided there was strict compliance with
safeguards that ensure reliability of the hypnotic
procedure. Such testimony should be evaluated based
on the particular circumstances.
APPELLATE VIEW/
IMPEACHMENT
Generally Admissible to Show Motive or Bias
Not Generally A Firm Ground For Reversible
Error - Bias is an issue that is relevant with every
witness
Allow Them to Impeach . .
But Don’t Let Them
Overreach