Slide Master

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