Evidence Foundations 4 - Impeachment

Impeachment: Discrediting a Witness

Impeachment in evidence law means discrediting a witness to cast doubt on the truthfulness of their testimony.

Methods of Impeachment

There are two primary methods:

  • Character-based: Discredits the witness using reputation, opinion, or specific instances of conduct that reflect dishonesty.

  • Non-character-based: Shows the witness may be lying due to specific issues related to the case, such as bias or memory problems.

Character-Based Impeachment

Types of Evidence Allowed:

  • Reputation: Testimony about what others have heard about the witness's untruthful character.

  • Opinion: Testimony based on personal interactions and knowledge of the witness's character.

  • Specific Acts: Evidence of past bad acts that are probative of truthfulness.

Example: Dom's Burglary Case

  • Dom is charged with burglary at the Build A Hair store. Shane testifies that he saw Dom driving a van full of stuffed bunnies. Sarah, Shane's neighbor, testifies that Shane has a bad reputation for truthfulness and that in her opinion, Shane is lying. Sarah's testimony casts doubt on Shane's statement.

Specific Bad Acts

  • Witnesses may be impeached with specific past bad acts that reflect on their truthfulness.

    The acts must be acts of misconduct that are probative of truthfulness.

Cross-Examination

  • A witness can be asked about acts of misconduct relevant to truthfulness during cross-examination, subject to the judge's discretion.

  • No extrinsic evidence (e.g., documents or other witnesses) is allowed to prove the bad act; the examiner is stuck with the witness's answer.

Example: Sarah's Job Application

  • Sarah gives favorable testimony for Dom. The prosecution asks if she lied about her GPA on a job application. If Sarah denies it, the prosecution cannot introduce the falsified application as evidence. The prosecution must have a good faith basis to believe Sarah actually committed the misconduct.

Criminal Convictions

Proof of a criminal conviction can impeach a witness because violating the criminal code suggests dishonesty.

Rules for Admissibility:

  • Crimes of Dishonesty: If the conviction is for perjury, fraud, or any crime involving false statements or dishonesty, the judge must admit it.

  • Felonies: If the conviction is for a felony not involving dishonesty, the judge has discretion to admit it.

    • Extra protection is offered to a defendant who is a witness to prevent unfair prejudice.

Circumstances Affecting Admissibility:

  • Age of Conviction: Convictions older than ten years may be excluded due to reduced probative value and risk of unfair prejudice.

  • Overturned Convictions: Convictions overturned by pardon may be excluded.

  • Pending Appeal: Convictions with a pending appeal may be excluded.

  • Juvenile Convictions: Convictions that occurred when the witness was a juvenile may be excluded.

Rehabilitation

  • Rehabilitation involves rebuilding a witness's credibility after it has been attacked.

  • If a witness’s character for truth has been shown to be bad, other witnesses may testify to the witness’s good character for truth using reputation or opinion evidence.

  • Evidence of truthful character is admissible only after the witness's credibility has been attacked.

Non-Character Based Impeachment

Methods of discrediting a witness using facts specific to the case:

  • Prior Inconsistent Statement

  • Bias

  • Sensory Deficiencies

  • Contradiction

Prior Inconsistent Statement

Showing that a witness has made earlier statements that contradict their current testimony.

Rules for Extrinsic Evidence:

  • The statement must be relevant to the case (not a collateral matter).

  • The impeaching party must lay a proper foundation for the extrinsic evidence.

Example: Night Security Guard

  • A security guard testifies she saw Dom in a van outside Buildahair at 2 AM. Dom's attorney questions if she previously said she saw Shane in the van. This prior inconsistent statement impeaches the guard's testimony.

Prior Inconsistent Statements Under Oath

  • If a prior inconsistent statement was made under oath, it is admissible for impeachment and as substantive evidence.

    • This concept will be familiar if you have studied hearsay exceptions.

Bias

Demonstrating that a witness has an interest in the outcome of the case, which could motivate them to lie.

Examples of Bias:

  • Friendship or family relationship with a party.

  • Being paid for testimony (e.g., expert witnesses).

  • Holding a grudge against a party.

Sensory Deficiencies

Showing that a witness has impairments that affect their ability to perceive or remember events accurately.

Examples of Sensory Deficiencies:

  • Bad eyesight

  • Poor memory

  • Consumption of alcohol or drugs

Example: Security Guard's Testimony

  • The guard's claim of seeing Dom in the van can be impeached by showing the parking lot was poorly lit, the van was far away, or she has poor eyesight.

Contradiction

Challenging the witness's testimony by presenting contradictory facts.

Method:

  • Trying to get the witness to admit they lied or were mistaken.

Examples:

  • If a witness claims they saw the defendant by the light of the full moon, proving there was no moon that night contradicts their testimony.

  • In Legally Blonde, Elle Woods uses the fact that one cannot get a perm wet to discredit a witness's alibi.