Credibility and Impeachment

Accrediting or Bolstering, Generally

A party usually is not permitted to bolster or accredit the testimony of their witness until the witness has been impeached.

Exceptions to the rule against bolstering

In certain cases, a party may offer evidence that the witness made a timely complaint or a prior statement of identification even if this tends to bolster. The prior identification may also serve as substantive evidence that the identification was correct

Parties that can impeach

Any party may impeach a witness, including the party that called the witness

Sources of Impeachment Evidence

impeachment evidence can come from either (1) eliciting facts from the witness that discredit their own testimony; or (2) calling other witnesses or introducing documents that prove facts (extrinsic evidence). Certain impeachment grounds require that a foundation be laid during examination prior to introducing extrinsic evidence

Process for Impeachment Questions

(1) is the source of the impeachment evidence examination of the witness being impeached, or is it extrinsic evidence; (2) if it is extrinsic evidence, can it be admitted under the impeachment method being used; (3) what, if any, foundation requirements are there for the impeachment method being used

Impeachment methods with facts specific to the case

Prior inconsistent statements; bias; sensory deficiencies; contradition

Impeachment methods involving a bad character for truthfulness

Opinion or reputation evidence of untruthfulness; prior convictions; bad acts

Prior Inconsistent Statements

A party may show by cross-examination or extrinsic evidence that the witness has, on another occasion, made statements inconsistent with their present testimony. A proper foundation must be laid if using extrinsic evidence and the statement must be relevant to some issue in the case

When a statement is inconsistent

Clearly contradictory statements; a prior statement that omits a fact asserted during the current testimony, if it would have been natural for the witness to include that fact. A witness’s present lack of memory is generally not inconsistent with a prior statement relating that fact, but a witness’s present recollection of the fact is generally considered inconsistent with a prior statement asserting a lack of recollection

Prior Inconsistent Statements as Substantive Evidence

If a witness’s prior inconsistent statement was made under oath at a prior proceeding, it is nonhearsay and may be admitted as substantive evidence of the facts stated

Foundation for Prior Inconsistent Statement Extrinsic Evidence

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if its content is not collateral (does more than simply show that the witness made an inconsistent statement) and, before the evidence is introduced: (1) the witness is given an opportunity to explain or deny the statement; and (2) the adverse party is given an opportunity to examine the witness about the statement

Exceptions to Prior Inconsistent Statement Foundation Requirement

The foundation requirement does not apply if: (1) the prior inconsistent statement is an opposing party’s statement; (2) an inconsistent statement by a hearsay declarant is being used to impeach the hearsay declarant; or (3) if the court determines that justice requires dispensing with the foundation requirement

Bias or Interest, generally

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie

Foundation for Extrinsic Evidence: Majority rule

Before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on examination. The court has discretion to permit extrinsic evidence even if the witness admits the bias

Sensory Deficiencies

A witness may be impeached by showing on examination or through extrinsic evidence that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived the facts asserted. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified. No foundation requirement for extrinsic evidence.

Contradictory Facts

On examination, a party can try to make the witness admit they lied or were mistaken about some fact they testified to. If the witness admits the mistake or lie, they have been impeached by contradiction. However, if the witness sticks to their story, extrinsic evidence is permitted unless the contradictory fact is collateral

Opinion or Reputation Evidence of Untruthfulness

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness to suggest that they were not truthful while on the stand. This is accomplished by calling a character witness to testify about the target’s bad reputation or the character witness’s low opinion of the target witness.

Conviction of a Crime, generally

A witness may be impeached by proof of a conviction for certain crimes. A pending review or appeal does not affect the use of a conviction

Crimes Involving Dishonesty or a False Statement

The court has no discretion (other than the staleness of the conviction) to bar impeachment by any crime, felony, or misdemeanor requiring an act of dishonesty or false statement. Courts interpret this narrowly to include only “crimen falsi” crimes such as perjury, false statement, criminal fraud, embezzlement, and false pretenses.

Impeaching by Felony not involving dishonesty or a false statement

A witness may be impeached by a felony that does not involve dishonesty or a false statement, but the court has discretion to exclude the convictions. The court weighs exclusion based on whether the witness is a criminal defendant or not

Exclusion Standard for Non-Dishonest Felony against Criminal Defendant

The court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect.

Exclusion Standard: Non-dishonest felony convictions for normal witnesses

The court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect (standard 403 test).

Admissibility of Remote Convictions

Generally, if more than ten years have elapsed since the date of conviction or the date of release from confinement, whichever is later, the conviction is inadmissible. The court may admit an older conviction if: (1) its probative value substantially outweighs its prejudicial effect (reverse 403); and (2) the proponent gives the adverse party reasonable written notice of their intent to use the conviction

Impeachment by prior conviction: extrinsic evidence

Impeachment by prior conviction may be done through the testimony of the witness being impeached or by extrinsic evidence. No foundation is necessary.

Effect of Pardons on impeachment

A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure and either: (1) the pardon was based on rehabilitation and the witness has not been convicted of a subsequent felony; or (2) the pardon was based on innocence, irrespective of subsequent convictions

Impeachment by Juvenile Convictions

Juvenile convictions are generally not admissible for impeachment, but in criminal cases the judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and is necessary to a determination of the accused’s guilt or innocence

Impeachment based on Constitutionally Defective Convictions

A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes including impeachment

Impeachment by Bad Acts involving Untruthfulness, generally

Subject to discretionary control by the judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness. The examiner must have a good-faith basis to believe the witness committed the misconduct

Extrinsic Evidence in Impeachment by Bad Acts Involving Untruthfulness

Extrinsic evidence is not permitted. The examiner cannot refer to any consequence that the witness may have suffered as a result of their bad act.

Impeachment on Collateral Matter

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue by extrinsic evidence or by a prior inconsistent statement

Impeachment of a Hearsay Declarant, generally

The credibility of a hearsay declarant may be attacked (and if attacked, supported) by evidence that would be admissible if the declarant had testified as a witness. The hearsay declarant need not be given the opportunity to explain or deny a prior inconsistent statement, and the opposing party may call the hearsay declarant as a witness and examine them about the statement.

Impeachment by hearsay declarant: meaning of “hearsay declarant”

In this context, a hearsay declarant is a person whose out-of-court statement has been admitted into evidence: (1) under an exception to the hearsay rule; or (2) as a vicarious statement of an opposing party.

Methods of Rehabilitating a Witness: Explanation and Character Evidence

An impeached witness may be rehabilitated in the following ways: (1) the witness may explain or clarify facts on redirect; (2) when the witness’s bad character for truthfulness is attacked, other witnesses may be called to give reputation or opinion testimony in support of the witness

Rehabilitating After Impeachment by Prior Inconsistent Statement

(1) if the testimony has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut; and (2) if the witness’s testimony is impeached on some different ground such as inconsistency or faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility

Admissibility of Prior Consistent Statements as Rebuttal

A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents