Impeachment of Witnesses

What is impeachment?

Discrediting a witness by casting doubt on the truth or reliability of the witness’s testimony.

What are the two general categories of impeachment?

Character-based impeachment and non-character-based impeachment.

What does character-based impeachment attack?

The witness’s character for truthfulness.

What does non-character-based impeachment attack?

The reliability of the witness’s testimony based on circumstances connected to the case.

What three types of evidence may be used for character-based impeachment?

Reputation, opinion, and certain specific acts.

How may reputation evidence impeach a witness?

By showing that the witness has a reputation for being untruthful.

How may opinion evidence impeach a witness?

By presenting another person’s opinion that the witness is untruthful.

What is the difference between reputation and opinion evidence?

Reputation concerns what the community says about the witness; opinion is based on the testifying person’s own knowledge of the witness.

When may a witness be questioned about a specific act of misconduct?

On cross-examination, when the act is probative of the witness’s character for truthfulness.

What must an examiner have before asking about a specific act of misconduct?

A good-faith basis for believing that the misconduct occurred.

What are examples of misconduct probative of truthfulness?

Lying on a job application, falsifying qualifications, fraud, or other dishonest conduct.

May extrinsic evidence be used to prove a specific act of misconduct offered to attack truthfulness?

No. The examiner may ask about the act on cross-examination but may not introduce extrinsic evidence to prove it.

What happens if a witness denies a specific act of misconduct?

The examiner must accept the answer and may not prove the act with extrinsic evidence.

What is the “you’re stuck with it” rule?

If the witness denies a specific act offered to attack truthfulness, the examiner cannot introduce extrinsic evidence to prove it.

May a criminal conviction be used to impeach a witness?

Yes, if it satisfies the special rules governing impeachment by criminal convictions.

How is a conviction involving dishonesty or a false statement treated?

It must be admitted to impeach the witness.

What are examples of crimes involving dishonesty or false statements?

Perjury, fraud, and forgery.

How is a felony that does not involve dishonesty treated when offered against an ordinary witness?

It is admissible subject to Rule 403 balancing.

How is a felony that does not involve dishonesty treated when offered against a criminal defendant?

It is admissible only if its probative value outweighs its prejudicial effect to the defendant.

Why does a criminal defendant receive additional protection from prior-conviction evidence?

The jury might improperly infer that the defendant committed the present crime merely because the defendant committed a prior crime.

What special rule generally applies to a conviction more than 10 years old?

It is admissible only if its probative value substantially outweighs its prejudicial effect and reasonable written notice is given.

Does a pending appeal make a conviction inadmissible?

No. The conviction remains admissible, but evidence of the pending appeal is also admissible.

Are juvenile adjudications generally admissible for impeachment?

No, subject to a narrow exception in criminal cases involving a witness other than the defendant.

What is rehabilitation of a witness?

Restoring the credibility of a witness after that credibility has been attacked.

When may evidence of a witness’s truthful character be introduced?

Only after the witness’s character for truthfulness has been attacked.

How may a witness’s truthful character be rehabilitated?

Through reputation or opinion evidence showing a good character for truthfulness.

May a party introduce evidence of truthful character before the witness is attacked?

No. A party may not bolster the witness’s credibility in advance.

What are the four principal non-character methods of impeachment?

Prior inconsistent statement, bias, sensory deficiency, and contradiction.

What is impeachment by a prior inconsistent statement?

Showing that a witness previously made a statement inconsistent with the witness’s current testimony.

May any prior inconsistent statement be used for impeachment?

Yes, subject to the applicable procedural rules.

When may extrinsic evidence of a prior inconsistent statement be introduced?

When the statement concerns a non-collateral matter and the witness is given an opportunity to explain or deny it.

May extrinsic evidence prove a prior inconsistent statement concerning a collateral matter?

No.

When is a prior inconsistent statement admissible as substantive evidence under the Federal Rules?

When it was made under oath at a trial, hearing, deposition, or other proceeding.

What is the difference between impeachment evidence and substantive evidence?

Impeachment evidence attacks credibility; substantive evidence may be used to prove the truth of the matter asserted.

What is impeachment by bias?

Showing that a witness has a motive or interest that may cause the witness to favor or oppose a party.

What are common sources of bias?

Family relationships, friendship, financial interest, payment, personal hostility, or an interest in the outcome.

May extrinsic evidence be used to establish bias?

Yes.

What is impeachment by sensory deficiency?

Showing that a witness could not accurately perceive, remember, or describe the event.

What are examples of sensory deficiencies?

Poor eyesight, poor memory, intoxication, drug use, insufficient lighting, or excessive distance.

What is impeachment by contradiction?

Showing through other evidence that the witness’s testimony is factually incorrect or mistaken.

What is an example of impeachment by contradiction?

Proving there was no full moon after a witness claimed to identify the defendant by the light of a full moon.

What is the key difference between character-based and non-character-based impeachment?

Character-based impeachment shows that the witness is generally untruthful; non-character-based impeachment shows why the particular testimony may be unreliable.