Witnesses, including Impeachment

What is the competency requirement for witnesses?

Although witnesses are generally presumed competent, there are limitations: (1) there must be evidence sufficient to support a finding that a lay witness has personal knowledge of the matter in which they are to testify; and (2) all witnesses must give an oath or affirmation to testify truthfully.

How is a child’s competency to testify determined?

The competency of a child depends on the child’s capacity and intelligence as determined by the judge.

How is an insane person’s competency to testify determined?

An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.

What is the Dead Man’s Act?

Many states have a Dead Man’s Act that prohibits an interested person from testifying as to communications or transactions with a deceased person if such testimony would be offered against a representative or successor of the deceased.

Impeachment evidence is offered against whom?

A testifying witness.

(NOTE: Different from character, in that the character can only be offered against parties in the case).

Who can impeach a witness?

Any party may impeach a witness, even the party that called the witness.

What methods may a witnesses be impeached?

(1) bias;

(2) sensory deficiencies;

(3) prior bad acts

(4) prior inconsistent statements;

(5) prior convictions;

(6) character for untruthfulness

(7) contradictory facts

Why is bias a proper method of impeachment?

Evidence of bias or an interest in the outcome of the case tens to show that the witness has a motive to lie.

When may a party impeach with a prior inconsistent statement?

A party may inquire into prior inconsistent statements to demonstrate untruthfulness on cross-examination or with extrinsic evidence. However, a party may not use extrinsic evidence unless: (1) inconsistency is material to the lawsuit ; (2) the witness is given the opportunity to explain or deny the statement; and (3) the opposing party has opportunity to examine witness about it.

How may a witness be impeached with the character of untruthfulness?

A party may impeach a witness with a character of untruthfulness on either cross-examination or by using a character witness. A character witness may only testify as to opinion or reputation. However, the party may only inquire into specific acts on cross-examination of the witness.

How may a witness be impeached with a prior conviction?

As a general rule, a party may impeach with a prior conviction through cross-examination or extrinsic evidence if the conviction, subject to limitations, was for: (1) a felony or (2) a crime of dishonesty.

What is a felony?

A felony is a crime punishable by prison of more than one year.

What are common crimes of dishonesty?

(1) perjury;

(2) false statement;

(3) criminal fraud;

(4) embezzlement;

(6) false pretenses.

What are the limitations to the introduction of a felony conviction?

If the witness is the criminal defendant, a prior felony conviction is admissible only if the probative value outweighs the unfair prejudice (reverse light 403 – presumed out). If the witness is a non-criminal defendant, a prior felony conviction must be admitted unless the unfair prejudice substantially outweighs the probative value (403 – presumed in).

What are the limitations to prior convictions for impeachment?

(1) felony convictions;

(2) ten year rule;

(3) pardoned convictions;

(4) juvenile convictions;

(NOTE: Pendency of an appeal does not affect a prior conviction.)

What is the ten year rule?

A conviction that is more than 10 years old will be excluded unless, in extraordinary circumstances, the probative value substantially outweighs the unfair prejudice (reverse 403 – presumed out). The time is calculated from the date of conviction or release, whichever is later.

What is the limitation of a pardoned conviction?

A prior conviction that has been pardoned is not admissible if: (1) the pardon was based on rehabilitation and the witness has not committed a subsequent felony; or (2) the pardon was based on innocence.

What is the limitation on juvenile convictions?

A prior juvenile conviction is excluded unless: (1) offered in a criminal case to impeach a non-defendant witness and (2) the evidence is necessary to determine the defendant’s guilt or innocence.