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. B.
Admissible 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
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. 1. 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 2.
Cross my HEART QUESTIONS Continued
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) 3.
Cross my HEART QUESTIONS Continued
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 5.
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 automobilecollision 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
1. Let the record reflect I am showing counsel Exhibits ac 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.
PROPER 609 IMPEACHMENT
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 xexam 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 crossexamination, 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, Not a collateral matter Inconsistency is material
Extrinsic proof only allowed if 2nd witness or document
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. B. Admissible 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 crossexamination, 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)
2)
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. 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