Chapter 8: Impeachment of Witnesses

FRE 608 Impeachment by Reputation or Opinion Evidence & Specific Instances of Conduct

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

FRE 609 Impeachment by Evidence of a Criminal Conviction

evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it can be readily determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Introduction:

• Rule 611: Mode and Order of Interrogation and Presentation:
  • (b) Scope of cross-examination: Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
    • All competency issues have more or less been moved to credibility  impeachment
    • People call witnesses that are adverse all the time  you don’t have to vouch for credibility of every witness that you call
• Rule 607: Who May Impeach:
  • Abolishes common law rule requiring vouching for all witnesses
  • “The traditional rule against impeaching one’s own witness is abandoned as based on false premises. A party does not hold his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary.”
    • You can lead if they’re adverse  make sure you have deposed them
  • Thus witness can be impeached on both direct and cross examination
  • Taking the witness stand means something you put your credibility in issue
    • If you think that credibility is at stake because of particular issue you better bring out the issue first so that you and the witness don’t lose even more credibility
      • You should point out the frailties in your case
• 9 categories of impeachment:
  • see powerpoint slides
  • Impeachment by Evidence Attacking:
    • 1) Perception/personal knowledge
    • 2) Memory—bridge of the temporal gap between time past and time present
    • 3) Mental Capacity
      • As long as this bears on whether they’ll tell the truth, it is permissible to use in impeaching the witness
  • You must distinguish between:
    • 1) Collateral Evidence: Evidence that has no important independent significance. You cannot prove up collateral evidence if denied
      • something on the side that has no important significance in the case in question  then you can’t prove it up if denied
    • 2) Non-Collateral Evidence: Evidence that has important independent significance. You can prove up non-collateral evidence
  • Additional Areas of Impeachment:
    • 1) Bias, prejudice, interest, and corruption
    • 2) Prior criminal conviction
    • 3) Prior non-conviction acts bearing on truthfulness/untrtuhfulness
    • 4) Prior inconsistent statement
    • 5) Opinion and/or reputation evidence of character
  • 404(a) provides exceptions for when character is utilized
    • 404(a)(1) criminal
    • 404(a)(3) = impeachment
    • Impeachment by showing that a person isn’t truth does inherently involve character (maybe you have a character of being a liar)  for this all that’s required to open the door is for a witness to take the witness stand
  • 8-A Problem:
    • Probably going to come in because most likely highly probative to show bias
    • Other methods might be to get the information through discovery (for plaintiff)
    • Might make motion in limine to get questions kept out
  • Bias Example:
    • Q: Isn’t it true that you have been paid $50,000 by the D to come here and testify?
    • A: No
      • Not Collateral: Therefore, P can prove up the $50,000 payment to this witness
• Methods of Impeachment:
  • Three Focus on Brining Reasons to Doubt Words Generally:These are definite, but nonspecific
    • 1) Showing that witness has some bias, animus, motivation or corruption that might lead him to fabricate or shade his testimony to help or hurt on of the parties
    • 2) Showing a defect in sensory or mental capacity (perception or memory) that undercuts his testimony
    • 3) Showing that he is by disposition untruthful—Done by:
      • a) cross-examining target witness about nonconviction misconduct casting doubt on his honesty
      • b) cross-examining him about certain kinds of convictions
      • c) testimony by a character witness that the target witness is untruthful
  • Specific But Indefinite Methods:Specific in calling into doubt particular points in testimony but indefinite b/c they don’t reveal underlying cause
    • 4) Showing that witness has made prior inconsistent statement (one that conflicts w/ current testimony)
    • 5) Contradicting the witness—showing that he’s just plain wrong one 1+ points of testimony
• Repairing Credibility:
  • Subject to court discretion under FRE 611, the “supporting party” may examine the witness in an effort to refute points suggests during attack or explain away aspersions cast upon veracity

A. Nonspecific Impeachment:

• 1. Bias and Motivation:
  • Court has discretion in permissible forms of cross, but court can’t cut off all legitimate attempts to show bias
  • Court has held that denying cross-examination on witness’s bias can violate defense confrontation rights and due process
  • No specific rule covers this under rules but we can impeach on this
• United States v. Abel (United States Supreme Court, 1984):
  • Facts:
    • Abel and 2 others were indicted for robbing a savings and loan (2 others plead guilty) 1 (Ehle) agrees to testify against D and ID him has participant in robbery
      • D told prosecution that he’d counter guy’s testimony w/ Mills who knew both in prison where E said he planned to implicate D falsely to get better treatment from govt.
      • Prosecution said they would counter this by questioning E and revealing that they were all members of “Aryan Brotherhood,” a secret gang that required all members to deny existence of org and commit perjury, theft, and murder on each other’s behalf
        • D said this would be too prejudicial  court says OK if D denies gang, then E can come in  this happens at trial and E is brought in
      • Court wouldn’t allow words “Aryan Brotherhood” though b/c they are unduly prejudicial
    • Appeals court held E’s rebuttal testimony was admitted to show Mill’s membership in group might color testimony AND Mills’s membership in perjurious org means he must be lying on stand
      • Court of appeals said suggestion of perjury based on group tenet was impermissible
  • Legal Issue:
    • Since D did not take stand, was E’s testimony implicating D as a member of gang improper to impeach D and did it prejudice him by mere association?
  • Holding:
    • Evidence showing Mill’s and D’s membership in gang was sufficienctly probative of Mill’s possible bias toward D to warrant admission into evidence
  • Rationale:
    • FRE Rules:
      • Don’t expressly deal with impeachment for bias but case law tells us that Confrontation Clause of 6^th amendment requires D to have some opportunity to show bias on part of prosecution witness
      • 401 allows all relevant evidence and 402 says permissible except as otherwise provided Conclusion = Permissible to impeach witness by showing his bias under FRE
    • Application:
      • E’s testimony about gang makes Mill’s bias more probable  therefore relevant to support inference
      • Mill’s and D’s membership in gang wasn’t offered to convict either of crime  just to impeach Mill’s testimony
      • D argues that DC shouldn’t have permitted E’s description of gang as lying and murderous b/c it would inflame jury
        • HOWEVER attributes of gang bore directly on fact of bias AND on source and strength of Mill’s bias
    • Rule 608(b):
      • Allows cross examiner to impeach witness by asking him about specific instances of past conduct other than crimes covered by Rule 609 which are probative of his veracity or character for truthfulness or untruthfulness
      • Rule limits this by prohibiting cross-examiner form introducing extrinsic evidence of witness’ past conduct
      • D claims that prosecutor examined Mills not to show bias, but past conduct
      • Court thinks that testimony/questioning was clearly to show that membership could taint testimony
  • Class Notes:
    • Testimony outweighs prejudicial effect according to court, but court sanitizes testimony by prohibiting use of term “Aryan Brotherhood”
• Notes:
  • Retainer:
    • The fact that a witness is on a retainer bear directly on bias
    • Invariably the calling party does pay for the services of any expert who testifies, and in fact the calling party brings out the fact of payment during the initial phases of direct examination to avoid the appearance of hiding what will surely be paid by the other side
• 2. Sensory and Mental Capacity:
  • General Notes:
    • Attacking party may seeks to show that witness had only bried chance to see/hear what she has described in her testimony, or that she labors under defects in sensory capacity that may affect her observation, or that human perceptive processes work in ways suggesting that her testimony is not so persuasive as it seems
    • Ex 1.
      • Attacking party can show that witness was under influence of drugs at time of the events
    • Ex.2:
      • By what authority does a court order a witness to undergo psychiatric examination?  In 1 case, D sought to cross examine govt. witness over a psychiatric report that had found him competent, but trial judge refused to permit it
      • RULE = “One’s psychiatric history is an area of great personal privacy which can only be invaded in cross when required in the interests of justice”
        • Reasoning = Cross examination of an adverse witness on matters of such personal privacy, if of minimal probative value, is manifestly unfair and unnecessarily demeaning of witness
          • Info is generally pretty extraneous
      • Requirement to Include:
        • Witness’ mental impairment, to constitute a proper subject for cross-examination, must
          • 1) have been “at a time probatively related to the time period about which he was attempting to testify,
          • 2) must go to the witness’ qualification to testify and ability to recall, and
          • 3) must not introduce into the case a collateral issue which would confuse the jury and which would necessitate allowing the govt. to introduce testimony explaining the matter
• 3. Character for “Truth and Veracity”
  • Class Notes:
    • 608(b) you can introduce prior acts that show character for truthfulness/untruthfulness
      • 608(b) refers to collateral evidence and says that if you are allowed to use specific instances (other than past crimes) it cannot be collateral
    • If we’re going to allow it, should we make it collateral
    • General Rule: Specific instances cannot be used to attack…
      • Exception 608(b): prior non-conviction acts can be used only if:
        • 1) The trial court exercises its discretion and allows such evidence
      • This method generally isn’t used because:
        • 1) if they say no, you can’t prove it up and you look stupid
        • 2) you often don’t know about these kinds of things (lying on resume)
    • DC Court: held that it was grave error for TC not to allow D to cross key govt witness (police officer) about whether he lied under oath in prior trial even though he was never convicted of perjury
      • In order to impeach cross examining attorney need not have admissible evidence, just good faith basis for asking the questions
  • General Notes:
    • Proving “bad character for truth and veracity” = another standard impeach strategy
    • Rule 609 authorizes and regulates attacks based on showing untruthfulness: nonconviction misconduct, cross examination on convicttions, and use of character witness
    • Relationship Between 404 and 608/609:
      • Example = If D in a murder trial testifies, FRE 608 and 609 entitled the prosecutor to try to suggest that he s by disposition “dishonest” but FRE 404 continues to bar evidence that he is by disposition violent
  • Cross-Examination on Nonconviction Misconduct:
    • Process = 1 method to suggest witness is disposed to be untruthful is to bring out on cross instances of nonconviction misconduct that seem to bear on veracity
    • Limitations = Judges must regulate b/c just posing question can cause damage no matter how witness responds
      • 608(b) indicates that specific instances of conduct relating to truthfulness or untruthfulness “may in the discretion of the trial court” be raised on cross
    • Test = A witness may be cross-examined on a prior bad act that has no resulted in a criminal conviction only where:
      • 1) the examiner has a factual predicate for the question, AND
      • 2) the bad act bears directly upon the veracity of the witness in respect to the issues involved in the trial
  • United States v. Manske (United States Court of Appeals for the 7^th Circuit, 1999):
    • Facts:
      • In trial for conspiracy to distribute cocaine, D sought to cross-examine 2 alleged co-offenders (P and K) who said D was their primary source for cocaine
      • D attacked their credibility of (P, K and 2 others) showing they were getting leniency in exchange for testimony and that they had extensive histories of drug use and drug dealing
      • Prosecution made motion in limine to block this cross relating to threats P made to witness testifying in related case (saying he better change story or P would kill him)
      • Prosecution argued that threats = conduct not probative of truthfulness or untruthfulness b/c they tended only to show propensity for violence
      • TC granted govt motion  D appeal
    • Legal Issue:
      • Doe the impeachment rules permit questioning related to P’s threats?
    • Holding/Rationale:
      • Rule 608/609:
        • FRE 609 = a witness’s specific instances of conduct may only be raised on cross if they are probative of truthfulness or untruthfulness
        • 3 ways of looking at 608(b):
          • 1) Broad View: holds that virtually all conduct indicating bad character indicates untruthfulness, including robbery and assault  untenable view
          • 2) Narrow View: considers crime bearing on veracity only if it involves falsehood or deception, such as forgery or perjury
            • threat evidence probably excluded here
          • 3) Middle View: Behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity
      • Application of Middle View:
        • Threatening to cause physical harm to a person who proposes to testify against you indicates that P probably wouldn’t hesitate to give false testimony if it gave him some kind of advantage
        • Deference to TC under 608(b) doesn’t apply when TC incorrectly categorizes nature of evidence (here they construed it too narrowly)
    • Was Error Harmless:
      • Prosecution argues that even if error, it was harmless
      • Bias is one of the 5 well-recognized methods of attacking witness’s credibility
      • NOTE: If bias w
    • Class Notes:
      • This would be held to be collateral if denied
  • B. Proving Prior Convictions:
    • General Notes:
      • Second means of suggesting a witness is untruthful involves prior convictions
      • FRE 609(a): lets the cross examiner ask about:
        • 1) convictions for crimes punishable by death or imprisonment in excess of one year … but for witnesses other than a criminal D admissibility of convictions is subject to FRE 403 (convictions used only where probative value outweighs their prejudicial effect)
        • 2) convictions for either felonies or misdemeanors involving dishonesty or false statement
      • Because many courts different about which crimes involve dishonesty  use of prior convictions for impeachment engenders much variety in approach, brings problems of interpretation, raises many issues in trial and generates many appeals
    • Rule 609(a):
      • For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime
        • 1) was punishable by death or imprisonment in excess of 1 year … and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to D, OR
        • 2) involved dishonesty or false statement, regardless of the punishment
    • Rule 609(b) creates 10 year time limit  convictions older than this are excluded
    • Rule 609(c) also excludes convictions where there is pardon/annulment or the witness was found to be innocent
    • Rule 609(d) provides that youthful brushes with the law are generally inadmissible, but that in certain criminal cases such offenses may be raised in the case of witness other than the accused
    • Rule 609(e) permits cross on convictions despite pendency of an appeal
  • Class Notes:
    • 2 methods under 609:
      • 1) Evidence of conviction of crime involving dishonesty or false statement
      • 2) All other evidence of conviction of crime
    • 609(a)(2)—Evidence That a Witness Has Been Convicted of a Crime Involving Dishonesty or False Statement
      • Required admissibility; the Rule does not allow for a 403 balancing
      • Limitations found in 609(b), (c) and (d) still apply
      • 609(a)(2) applies to any witness, including a criminal defendant
      • “By the phrase “dishonesty and false statement” the Congerence means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement…
    • Example Acts Which do not Qualify as going to
• Evidence Not Involving Dishonesty or False Statement:
  • 2 types:
    • 1) Evidence that a witness other than the accused has been convicted of such a crime
    • 2) Evidence that an accused has been convicted of such crime
      • More protection for accused than other witnesses because he has to make decision about whether to testify
      • Protections under 609(a) are only for criminally accused  any other witness (D in civil case) is afforded different stand
    • Evidence that a witness other than an accused has been convicted of a crime shall be admitted only if:
      • 1) allowed after a tradition Rule 403 determination (erring on side of admitting)
      • 2) Crime is a felony ) punishable by death or imprisonment in excess of 1 year
      • 3) Still subject to limitations of Rule 609(b), (c) and (d)
    • Evidence that an accused has been convicted of a crime shall be admitted if:
      • Trial court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused (errs on the side pushing the evidence OUT)
      • Crime is a felony
      • Still subject to limitations of Rule 609(b), (c) and (d)
  • Additional Limitations to Rule 609(a):
    • Time Limit—Rule 609(b)
      • Conviction can be more than 10 years old if they were released from confinement and served less than 10 year sentence
      • This is unclear about from when to measure the 10 years (from the start of trial, from when he testifies, when charges are brough…) –Cases on this are not all consistent, but some say when trial starts for other witnesses, but when it’s D’s testimony we measure from when he takes stand to testify
      • Conviction happens 15 years ago, D has probation for 10 years what happens if probation is revoke and you go back to jail
        • Probation generally NOT considered confinement
        • If probation is revoked courts tend to show that there’s difference btwn technical probation violation and something more substantive (like committing another crime)
    • Effect of pardon, annulment, or certificate of rehab—Rule 609(c)
    • Juvenile adjudications—Rule 609(d)
  • United States v. Lipscomb (United States Court of Appeals for District of Columbia Circuit, 1983):
    • Facts:
      • In 2nd jury trial for possession of heroin w/ intent to distribute, D was convicted  he testified at 1^st trial (hung jury) and was impeached by cross-examination about robbery conviction 8 years earlier
      • D made motion in limine to prevent this cross on retrial but judge said P could ask pursuant to Rule 609(a)(1)
      • Judge lets prosecutor bring out prior convictions of D and 3 of D’s witnesses
    • Legal Issue:
      • Does 609 permit impeachment through prior convictions? YES
    • Holding:
      • Based on 609, legislative history and sound policy, that DC has discretion to determine when to inquire into facts and circumstances underlying prior conviction and how extensive an inquiry to conduct
    • Rationale:
      • Limiting Instructions a Legal Fiction:
        • The naïve assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction
        • When D is impeached by prior conviction, question of prejudice is not if, but how much
          • THEREFORE 609(a)(1) instructs courts to admit evidence of prior felony conviction only if court determines that probative value of admitting evidence outweighs prejudicial effect to D
        • In order to balance probativeness against prejudice under 609(a)(1), the DC may elicit facts RE background and circumstances (but does not always need to do so)
      • Policy Considerations:
        • P argues that even if DC can look at facts it shouldn’t because inquiry is burdensome and won’t lead to anything more than larceny was larceny
        • Court disagrees b/c pleading of not guilty and later conviction would speak to fact that witnesses didn’t tell the truth
        • Might give evidence of rehabilitation or lack there of w/ regard to certain types of crimes
        • Trial judge and D deserve information and burden on P isn’t that great
    • Class Notes:
      • Ds are put at risk not only by evidence of their own conviction if they take the stand but D can also be prejudiced if witnesses are impeached (affects his own credibility)
      • Start 609(a)(2) and then go to (a)(1) but don’t make the mistake of giving additional protections to criminal-accused (not civil defendants)
  • Additional Notes:
    • Gordon Factors to Consider:
      • 1) Nature of the conviction
      • 2) Its recency or remoteness
      • 3) Whether it is similar to the charged offense
      • 4) Whether D’s record is otherwise clean (convictions are presumably more probative of credibility if they show a continuing pattern rather than isolated instances
      • 5) the importance of credibility issues
      • 6) the importance of getting D’s own testimony
    • These factors are only used in weighing under 609(a)(1) because there is NO weighing under 609(a)(2)
• Luce v. United States (US Supreme Court, 1984):
  • Facts:
    • D was indicted on charges of conspiracy and possession of cocaine w/ intent to distribute
    • During trial D moved to preclude govt from using 1974 state conviction (possession of controlled substance) to impeach him
  • Legal Issue:
    • Was D, who did not testify at trial, entitled to review of DC’s ruling denying his motion to forbid use of prior convictions to impeach his credibility?
  • Holding/Rationale:
    • Any possible harm flowing from DC’s in limine ruling permitting impeachment by prior conviction is wholly speculative  because D didn’t testify
    • Court holds that to raise and preserve for review the claim of improper impeachment w/ a prior conviction, D must testify
  • Class Notes:
    • You want to preserve the issue for appeal you have to get on the witness stand and be impeached  can’t preserve it for appeal unless you testify
    • Problem for D because you have to testify and can’t take sting out ahead of time  if you take the sting out ahead of time, then you can’t appeal

Example Problem:

• Embezzlement #1:
  • 609(a)(2) crime that doesn’t come in because of time limit
• Embezzlement #2:
  • 609(a)(2) and there shouldn’t have any weighing of evidence
  • The evidence should have just come in  regardless of whether it was criminal accused
  • Time limit wasn’t implicated because 11 years ago but 5 years only were served
  • If 609(a)(2)  judge shouldn’t have balanced AT ALL
• 3^rdConviction:
  • 609(a)(1)  criminal accused so we use the stricter weighing standard
  • This was a felony conviction
  • Standard = judge used 403 standard instead of proper standard under 609(a)(1)
• 4^thConviction:
  • 609(a)(1) felony of someone else
  • Court uses and should use 403 standard
  • Court allowed impeachment with too much detail  can make spill over argument
• 5^thConviction:
  • 609(a)(2) crime and judge was therefore incorrect for excluding the evidence
  • Judge can’t exclude evidence under this situation even though it’s a misdemeanor because it’s 609(a)(2)
• 2. Very Violent Person:
  • “Violent Person” = 404(a)  can’t put character evidence unless it’s to rebut same
  • “Prone to Lie’ =

I’m B. Specific Impeachment

1. Prior Inconsistent Statements:

• Class Notes:
  • Rule 609: Impeachment by Evidence of Conviction of Crime
    • (a) General Rule:
      • For the purpose of attacking the character for truthfulness of a witness
      • (a) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it can be readily determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness
  • Court does NOT balance under 609(a)(2) ONLY under 609(a)(1)
• Problem 8-B:
  • Elmo = don’t impeach because then D is going to call witnesses and then you’ll lose other arguments to impeach witnesses of defense and criminal accused
  • Accused = standard is tougher for getting evidence in 
• Rule 404(a):
  • The general position is taken that character evidence is not admissible for the purpose of proving…
  • 608(a)
    • Only opinion and or reputation evidence is allowed
    • Evidence must refer only to character for truthfulness or untruthfulness
    • Cannot use evidence of truthful character until your witness’ veracity has first been attacked by opinion and/or reputation evidence
    • Basically  can’t call witnesses to say someone is truthful unless their veracity has been attached
    • “Character of truthfulness could be introduced before defendant took stand by the prosecution if it’s a fraud case (for example) where untruthfulness is one of the elements of the crime”
    • 404(a)(3):
      • allow evidence to be received to impeach
• Evidence Example Problem:
  • Holly is on trial for the murder of John
  • Can prosecution (in case in chief) call a character witness to testify as to holly’s character for violence? NO  can only rebut the same
  • Holly can’t call friend to testify to truthfulness unless reputation has been attacked
    • They have to attack credibility before she can call character witness to testify as to honest EVEN if she denies committing crime
  • 608(b) allow prosecutor to cross examine Holly using prior non-conviction acts bearing on Holly’s untruthfulness
    • Holly can now call Connie as a witness to testify to Holly’s wonderful reputation for truth and honesty
    • Holly can call Frank to testify that she is a peaceful non-violent person (pertinent trait and she’s allowed to open the door)
      • Prosecutor can’t call character witness to testify as to Holly’s reputation for dishonesty after this because Holly hasn’t opened door to this matter
• General notes:
  • If witness’s testimony differs on some point from prior statements, the attacking party may cross examine on these statements and prove them by extrinsic evidence (testimony by other witnesses)
• Prior Inconsistent Statements Class Notes:
  • Rule 613:
    • (a) Examining witness concerning prior state : In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel
    • (b) Extrinsic evidence of prior inconsistent statement of witness:
      • Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2)
  • Collateral or Noncollateral:
    • Depends whether issue is significant or non-significant
  • 607 Abuse;
    • Call adverse witness, set up inconsistency with otherwise inadmissible document and use document to impeach that witness and then judge gives instruction that its to be used for credibility determination and nothing else
• Procedural Fairness:
  • Common Law Conventions:
    • 1) During cross, attacking lawyer was expected to lead witness gently into subject of inconsistency
    • 2) Attacking laywer was not permitted to prove statement by extrinsic evidence (offering 1^st writing into evidence, or adducing testimony by another as to what was first said) unless he had first raised matter on cross
  • Modern Revision:
    • FRE 613(a): Cross-examiner no longer needs to worry about approaching subject gently
      • Only restriction is that opposing counsel is entitled to request to see the statement or learn of its contents to repair damage
    • FRE 613(b): If a prior inconsistency is proved by extrinsic evidence, generally witness must have opportunity to explain or deny it and adverse party must have chance to interrogate her
• United States v. Webster (US Court of Appeals for 7^th Circuit, 1984):
  • Facts:
    • D was convicted of aiding and abetting robbery of federally insured bank and receiving stolen bank funds  D appeals
    • Govt called another bank robber who had pled guilty (King) and showed that he’d given prior inconsistent statements inculpating D
      • Court gave limiting instruction to only consider statements for impeachment
    • D argues this was insufficient b/c govt should not be allowed to get inadmissible evidence before jury by calling hostile witness and then using his out-of-court statements, which would otherwise be inadmissible hearsay, to impeach him
  • Legal Issue:
    • Is impeachment by prior inconsistent statement permitted where the evidence is not otherwise admissible? Can’t use impeachment to subterfuge and get in inadmissible evidence BUT standard is one of good faith.
  • Holding/Rationale:
    • Court:
      • Impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible
    • Good Faith Standard:
      • There was no bad faith here b/c P asked judge to allow her to examine witness outside jury
      • D wants instead of good faith the court to hold that govt. may not impeach a witness w/ his prior inconsistent statements unless it is surprised and harmed by witness’s testimony
        • Govt shouldn’t have to choose between calling and not calling when witness might provide helpful and expected harmful testimony that can be overcome by impeachment
• Limitations on Impeachment:
  • Can’t just call witness to impeach:
    • While it is rule that a party calling a witness does not vouch for his credibility, it has never been rule that a party may call a witness where his testimony is known to be adverse for purpose of impeaching him
      • To do so would permit govt, in name of impeachment, to present testimony to jury by indirection which isn’t otherwise admissible
    • RULE = Impeachment by prior inconsistent statement may NOT be permitted where employed as a mere subterfuge to get before jury evidence not otherwise admissible
• Harris v. New York (United States Supreme Court, 1971):
  • Facts:
    • D was charged w/ selling heroin in 2 transactions where buyer was undercover cop who became state’s principal witness
    • H testified that he knew officer and appeared to sell him heroin but it was really baking powder and his motive was to make $
    • On cross P asks D about statements made after arrest (statements which were inadmissible and had not been mentioned in case-in-chief)
      • Statements partially contradicted D’s testimony and were to effect of “officer used me as middleman to buy some heroin from 3^rd person”
    • Court instructed jury that statements could be considered only in determining D’s credibility NOT guilt
      • D appeals
  • Legal Issue:
    • Was impeachment with evidence not otherwise admissible permissible in this case?
  • Holding/Rationale:
    • Miranda:
      • Barred prosecution from making its case w/ statements of an accused made while in custody prior to having or effectively waiving counsel
      • It does NOT follow from Miranda that evidence barred against accused in P’s case in chief is barred for all purposes
    • Application:
      • D shouldn’t be able to use Miranda as total shield
      • Since D’s statements after arrest contrasted sharply w/ testimony and impeachment process provided valuable aid to jury in assessing credibility
      • D—taking stand—is under obligation to speak truthfully and it would be unfair to prevent P from showing lies
  • Dissent;
    • Thinks that what is inadmissible in case in chief under Miranda v. Arizona is also inadmissible on cross to impeach credibility
    • “Constitution guarantees D the fullest opportunity to meet accusation against him. He must be free to deny all elements of case against him without giving leave to govt. to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for case in chief
    • Walder:
      • Walder was indicted in 1950 for purchasing and possessing heroine  D won on motion to suppress b/c narcotics were illegally seized
      • 2 years later D is indicted on another violation and testifies in his defense that he has never in his life possessed narcotics
      • P was permitted to introduced testimony from one of officers in 1950 seizure that they seized drugs
        • D went beyond denying elements and denied any past conduct
      • Evidence in Walder tended solely to impeach credibility but evidence was completely unrelated to indictment on trial and did not in any way interfere w/ freedom to deny all elements of case against him
      • Thinks Walder is different than present case because evidence used to impeach was on matters collateral to crime charged NOT non-collateral as in present case
  • Class Notes:
    • Court says that they can impeach with statements gained before reading of Miranda rights
• Jenkins v. Anderson (United States Supreme Court, 1980):
  • Fact:
    • D stabbed and killed Doyle Redding but was not apprehended until he turned himself in 2 weeks later  at time of trial he contended killing was self-defense
      • D claimed that Redding had robbed him and next day he encountered R who thought D told police about him  R apparently attacked D and D fights and stabs R
    • P uses Ds silence (in not coming forward to police) for 2 weeks after killing to impeach credibility by suggesting hat that D would have spoken out had he killed in self-defense
    • D claims Ps impeachment violated 5^th amendment guaranteeing accused the right to remain silent  D didn’t remain silent though during trial and took stand
  • Legal Issue:
    • Does use of prearrest silence to impeach D’s credibility violate either 5^th or 14^th amendment to Constitution? NO
  • Holding/Rationale:
    • Raffel v. US:
      • Court recognized that 5^th amendment is not violated when D who testifies in his own defense is impeached w/ prior silence
      • Court held that inquiry into prior silence was proper b/c immunity from giving testimony (in 1^st trial in that case) is on which D may waive by offering himself as witness
      • Court accepts side effect that Ds may be discouraged from exercising constitutional right to remain silent if it will be used against them
    • Approach:
      • In determining whether a constitutional right has been burdened impermissibly it is appropriate to consider the legitimacy of the challenged governmental practice
        • Impeachment is key to advancing truth and determining credibility
      • Also ask whether compelling the election impairs to an appreciable extent any of the policies behind rights involved
    • Fairness Under 14^th Amendment;
      • D also claims that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by 14^th amendment
      • Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent w/ present statements that impeachment by reference to such silence is probative
      • In this case there is no fundamental unfairness b/c silence happened before reading of rights
        • HOWEVER  this decision does not mean state courts must allow impeachment through use of prearrest silence
  • Class Notes:
    • Pre-Miranda silence can in fact be used to impeach
    • Post-arrest and post-miranda silence CANNOT be used to impeach
    • Prior inconsistent statement
• Other Notes:
  • Insanity and Miranda Silence:
    • Doyle indicates that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise to impeach his trial testimony, and it is equally unfair to break the promise by using silence to overcome a claim of insanity

2. Contradiction:

• General Notes:
  • Impeaching a witness by contradiction entails showing that something he said in his testimony isn’t true
    • Can be done by cross (getting him to admit lie) or by extrinsic evidence (testimony form someone else, writing/recording)
• Limitations:
  • Courts recognize that all contradicting counterproof has some impeaching effect but lett it in only if it has additional relevance in the case—some relevance independent of its contradicting effect
  • 3 kinds of counterproof:
    • 1) Counterproof that not only contradicts but also tends to prove a substantive point (evidence that goes to merits as well)
      • Usually gets in
    • 2) Counterproof that not only contradicts but tends to prove some other impeaching point
      • Usually gets in b/c it tends to show bias
    • 3) Counterproof that ONLY contradicts
      • Here evidence is usually excluded for it has no relevancy apart from contradicting the witness  can be admitted, HOWEVER, if court thinks it’s not possible for witness to be innocently mistaken
      • It is evidence that contradicts on a collateral point
    • Basic idea is that what can’t get in during case in chief can’t really be used to contract
      • HOWEVER benefit of contradiction method is that it changes when evidence can be introduced (P might rather present something later to really show lack of credibility of witness AND support her case)
      • Also beneficial because sometimes you can get in other evidence when witness tells lie, that isn’t otherwise admissible (like previous accidents) but that go to show character (as bad driver)
  • Rule 608(b):
    • Basically provides that an attacking party may cross a witness on nonconviction misconduct if probative of untruthfulness but that such misconduct may not be proved by extrinsic evidence

General Introduction Class Notes:

• Pleadings:
  • Might be important if detailed allegations are made in pleadings that are then denied in the answer without hesitation  you can later use these statements to impeach
• Impeachment by Evidence Attacking: (9 ways to impeach a witness at Trial)
  • 1) Perception/Personal Knowledge
  • 2) Memory—bridge of the temporal gap between time past and time present
  • 3) Mental capacity
  • 4) Bias, prejudice, interest and corruption
    • Non-collateral
  • 5) Prior criminal conviction
    • Non-collateral
    • Governed by 609
  • 6) Prior non-conviction acts bearing on truthfulness/untruthfulness
  • 7) Prior inconsistent statement
    • Rule 613 governs this in part
    • May be collateral or non-collateral depending how important issues are to case
  • 8) Opinion and/or reputation evidence of character
    • Collateral
  • 9) Contradiction
    • Witness testifies and you want to show that what witness actually testified to is not accurate in some aspect  shows that if they’re wrong on one aspect they may be wrong on another matter
    • Impeaching a witness by contradiction is done by showing that witness’s testimony is wrong in some regard
    • 608(b) doesn’t depend on contradicting witness testimony on stand
      • It says, you lied before so you’ll lie now and has a built in collateral aspect
      • You might rather try to squeeze something into this category because then you can prove it up with extrinsic evidence if it’s relevant to something important in the case
• Discretion:
  • Trial judges have some authority to leave out evidence
• Problem 8-F:
  • See page 580 for facts
  • The prosecution wants to say that the testimony has been contradicted and they want to use extrinsic evidence to show it
  • Issue: Is this collateral or not?
    • This will depend on how central the testimony is to the case at hand
  • Kinney is only testifying that Oswald wasn’t there on June 27  not entirely contradictory to what the waiter is saying
  • The waiter says “I never laid eyes on him”  if you could show that waiter was there on July 14 then it would be a lot more likely to come in
    • non-collateral

United States v. Havens (United States Supreme Court, (1980):

• Facts:
  • D was convicted of importing, conspiring to import and intentionally possessing a controlled substance, cocaine.
  • Ds friend M was searched at customs and they found cocaine on him (in sewn on patches w/cut up t-shirt) then luggage was searched w/out warrant
  • Searching D’s luggage they find cut up T-shirt that was used to sew on cocaine
  • Court of Appeals held that illegally seized evidence may not be used for impeachment only if evidence contradicts a particular statement made by D in course of his direct cross examination
• Legal Issue:
  • Can evidence suppressed as the fruit of an unlawful search and seizure nevertheless be used to impeach a D’s false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict D’s testimony on direct examination?
• Holding/Rationale:
  • Direct/Cross:
    • Court doesn’t think that just b/c evidence does not directly contradict statement made on direct it is out
    • Cort must consider how closely cross about shirt and luggage was connected w/ matters on direct
    • Rule: If matters would be suggested to reasonably competent cross-examiner by D’s testimony, then prosecution can introduction questions to impeach
  • Truth Issues:
    • System seeks to reach truthful conclusion and system would fail if Ds were permitted to use perjury as a means of keeping out key evidence
    • Constitutional limitations shouldn’t only be extended to direct examination but cross as well  otherwise function of cross is lost b/c lying witness can’t be crossed effectively
• Dissent:
  • Interprets Agnello (and prior cases) as saying that impeachment by cross-examination about suppressible evidence must be warranted by D’s statements upon direct questioning
• Problem 8-G:
  • Young charged w/ selling narcotics and testifies that he was elsewhere at time of crime and prosecution asks if he’s ever sold narcotics before
  • Class Notes:
    • Highlights important area  make sure you school witnesses to pause so attorney has time to object
    • Prosecution can’t ask if he’s ever sold narcotics before
      • Can’t utilize specific act to show general propensity
      • Can argue that you’re not using it to show general propensity but that you’re using it to show general intent (under 404(b))
    • Assume question is wrong but person answers first with a lie
      • Defense should make motion to strike because the question was improper so the fact that the answer was perjured isn’t grounds for impeachment
      • Court is unlikely to allow impeachment to go forward
• Rule 610:
  • Evidence of religion is not admissible to support or attack witness credibility
  • Evidence of the religious beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced
  • This doesn’t mean that no aspect of religion can enter witness box
    • Can be used to show bias (priest on stand where church is defendant)
  • You can’t use religion to show you’re a good person

Repairing Credibility

• General Notes:
  • Rules allow for repairing of damage from impeachment but rules place 2 conditions on it:
    • 1) Generally courts disallow any attempt to repair credibility before attach has come
      • 608(a) states this principle BUT you can out the facts first
      • Permissible on direct
        • 1) for any party to adduce testimony by his expert to the effect that she is being paid for her services
        • 2) for calling party to bring out that its witnesses have been convicted of crimes
        • 3) for the prosecutor to bring out that its witness entered into plea bargain
        • 4) for the calling party to bring out any connection or affinity that she has w/ witness, such as personal/business relationships, which are obvious grounds of bias
    • 2) Repair should be made at the point of the attack
• Class Notes:
  • Take Out the sting on Direct Examination:
    • “it is permissible on direct
      • 1) for any party to adduce testimony by his expert to…
  • Repairing Credibility:
    • Explanation by Impeached Witness
    • Prior consistent statements
    • Character evidence of truthfulness
  • Prior Inconsistent Statement:
    • Maybe show that statement was never made
    • Show that statement wasn’t said as party claims
  • Repairing Credibility—Character Evidence of Truthfulness;
    • 1) Cannot bolster credibility until after witness’ truthfulness has first been attacked
    • 2) Character witness may then testify (opinion or reputation) as to the truthful disposition of attacked witness
  • 609 (prior criminal convictions), 608 (prior nonconviction actions bearing on truthfullness) and 608(a)
    • Evidence to bolster credibility can be admitted after attacks based on the above
• 1. What Constitutes an Attack on Credibility that Paves Way for Repair?
  • General Rule:
    • Evidence that simply contradicts or refutes testimony given by a witness does not invite rehabilitation or repair
• 2. Evidence of Good Character:
  • Rule 608(a) authorizes courts to admit “opinion or reputation” testimony supporting credibility after “character for truthfulness has been attacked
  • Cross Examination: There are risks associated w/ this strategy if the witness doesn’t know about bad character activities
    • Cross examiner can test knowledge and judgment of good character witness under Rule 405
• United States v. Medical Therapy Sciences (United States Court of Appeals for the Second Circuit (1978):
  • Facts:
    • D was convicted of filing false claims for Medicare payments and obtaining double payments for procedures
    • Govt had D’s employee—BR who helped in filing forms—testify against him and on appeal D contends that trial judge erred in permitting prosecutor to call character witness to bolster BR’s credibility
      • And this error was crucial in light of D’s claims that BR alone perpetrated frauds
    • D claims BR’s character for truthfulness wasn’t attacked under meaning of rule
  • Holding/Rationale:
    • Rule 608(a):
      • Character evidence may be used to support a witness, but the rule limits its use so that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”
      • Rule contains no limitation that precludes a party from offering character evidence under circumstances where it anticipates impeachment, rather, the even that triggers the applicability of the rule is an attack on the witness’ veracity
  • Class Notes:
    • Prosecution brought out BR’s (BR = Prosecution’s star witness) past convictions in anticipation of impeachment
      • Prosecution CANNOT then repair credibility UNLESS there is attack from D because credibility has not been attacked simply because you impeach your own witness or take the sting out of impeachment