Witness Impeachment/Rehab (Flowchart)

What is impeachment?

Attacking the creditability of witness testimony either concerning the subject of their testimony or their general believability

What is rehabilitation?

Repairing the creditability of a witness whose testimony has been impeached

What party can attack a witness’s creditability/impeach a witness? (607)

Any party can attack any witness’s creditability

What is extrinsic evidence?

Any evidence other than admissions on cross examination

What is intrinsic evidence?

Admissions on cross examination

What are the five ways to impeach a witness?

1. Show that witness’s bias would lead them to be untruthful

2. Show defect in sensory or mental capacity

3. Show untruthful disposition/bad character for truthfulness

4. Show witness made prior inconsistent statements

5. Contradict witness with counterproof

What is bias for purposes of impeachment? What are the three main categories of bias?

Ulterior motive that could skew testimony or induce witness to false testimony;

1. bias against party

2. bias in favor of party

3. bias with other ulterior motive

When is bias relevant?

Always

When showing that a witness’s bias would lead them to be untruthful, what intrinsic and extrinsic evidence can you use?

Intrinsic: Cross examination about ongoing relationship with a party; question witness about past relationship with a party

Extrinsic: Impeaching party can call their own witness for evidence of conduct; impeaching party can offer documents/evidence of statements

When is defective senses ground for impeachment?

If witness testified about their perceptions using those senses

When is defective recall ground for impeachment?

If the witness testified about past events or conditions

Can extrinsic and intrinsic evidence be used to show defect in sensory or mental capacity?

Yes

What are the three ways to show bad character for truthfulness?

1. Offer prior bad (unconvicted) acts bearing on truthfulness

2. Offer prior criminal convictions

3. Offer reputation or opinion evidence showing that the witness has bad character for truthfulness

What are examples of prior bad (unconvicted) acts that bear on truthfulness?

Fraud involving misrepresentation, deception, academic dishonesty, perjury, etc.

When showing prior bad (unconvicted) acts bearing on truthfulness, what intrinsic and extrinsic evidence can you use?

Intrinsic: Cross exam of witness about acts bearing on truthfulness

Extrinsic: CANNOT offer extrinisc evidence for this purpose

When showing prior bad (unconvicted) acts bearing on truthfulness, what limitations is cross examination limited to?

1. Before asking questions, impeaching party must have a good faith basis to believe that the witness actually committed the act

2. Questioning can be prohibited if probative value is substantially outweighed by prejudice

When showing prior bad (unconvicted) acts bearing on truthfulness and you want to offer extrinsic evidence, what are other theories of admissibility that could get the evidence in?

Proof of bias and proof of motive/intent

When offering prior convicted acts, can you use intrinsic and extrinsic evidence?

Yes

When offering prior convicted acts, what four types of convictions qualify?

1. Any conviction (felony or misdo) for an offense involving dishonesty

2. Any felony convictions (punishable by death OR exceed one year of incarceration), regardless of whether dishonesty is involved

3. Convictions based on nolo contendere plea (accepts conviction while refusing to admit or deny guilt)

4. Convictions under appeal

What are examples of offenses involving dishonesty?

Theft, embezzlement, shoplifting, giving false info to police, etc.

What balancing test is applied when offering convictions involving dishonesty?

None; automatically admissible

What balancing test is applied when offering felony convictions not involving dishonesty when the witness is NOT the accused?

Conviction is generally admissible unless its probative value is substantially outweighed by prejudicial effect

What balancing test is applied when offering felony convictions not involving dishonesty when the witness IS the accused?

Conviction is generally not admissible unless its probative value is outweighed by prejudicial effect (tougher test for proponent)

How old can conviction be until they become inadmissible?

If 10 years has lapsed since the date of conviction OR date of release from confinement (whichever occurred later), generally not admissible.

If a conviction is 10 years or older, what circumstances allow it to be admitted?

1. The court must find that the probative value outweighs the prejudicial effect, and

2. The proponent must give prior written notice to the adverse party

Can pardons and annulled convictions be admissible?

If the pardon or annulment was based on a finding that the defendant was innocent, it can’t be used for impeachment; If it was based on rehabilitation, it can’t be used for impeachment unless the defendant was subsequently convicted of another offense

Can juvenile adjudications be admissible if the witness IS the accused?

No.

Can juvenile adjudications be admissible if the witness is NOT the accused?

Yes if 2 conditions are met:

1. The nature of the offense, recency of conviction, etc. meet the requirements for adult conviction, and

2. The court determines that admission would be necessary for a fair determination of the issue of guilt or innocence.

When offering opinion or reputation evidence to show bad character, what must the character traits focus on?

Character for truthfulness

When offering opinion or reputation evidence to show bad character, what intrinsic and extrinsic evidence can you use?

Intrinsic: Cross exam by getting witness to admit to bad reputation (probably won’t happen)

Extrinsic: Call your own witness to testify about bad reputation

Can intrinsic and extrinsic evidence be used to demonstrate that a witness had made prior inconsistent statements?

Yes

When are prior inconsistent statements NOT hearsay?

1. When offered for TOMA (truth of the matter asserted) AND prior statement was made under oath in a legal proceeding AND witness is now available for cross exam, or

2. When offered to show inconsistency only; statement need not have been made in court or under oath

If a witness is impeached based on prior inconsistent statements, does the witness have to be shown a copy of the statement?

No

If a witness is impeached based on prior inconsistent statements, does opposing counsel have to be shown a copy of the statement?

Yes

If a non-party witness is impeached based on prior inconsistent statements, does the witness have to be given the opportunity to explain the inconsistencies?

Yes

What is a collateral matter?

A detail that is not relevant or probative to the case at hand

Can a witness be impeached with prior inconsistent statements on collateral matters?

No

What are examples of relevant inconsistent statements that cannot be used for impeachment?

Involuntary statements, plea negotiation statements, post-Miranda statements, etc.

How can one impeach a witness by contradicting their testimony?

Offering counterproof on non-collateral issue

What are the three ways to rehabilitate a witness?

1. Allow them to explain themselves on redirect

2. Show good character for truthfulness

3. Introduce prior consistent statements

What needs to happen in order to show good character for truthfulness as rehabilitation?

The character of the witness must have been attacked first

What types of extrinsic evidence can be offered to show good character for truthfulness (to rehabilitate a witness)?

1. Opinion/reputation evidence of truthful character via other witness testimony

2. Evidence of specific instances of conduct bearing on good character (ask impeached witness on redirect about specific instances that show good character OR ask impeaching witness on cross about specific instances of impeached that show good character)

What three requirements must be met in order to introduce prior consistent statements as rehabilitation?

1. Cross exam must have suggested motive to lie

2. Consistent statement must predate bad motive

3. Witness must be available for cross exam

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

No