This is an extract of our Impeachment document, which we sell as part of our Evidence (Duke Beskind) Outlines collection written by the top tier of Duke University School Of Law students.
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a. Introduction: Methods of Discrediting a Witness i.
Two times to impeach; either: a. During cross-examination b. Not during cross-examination (extrinsic) i. Calling a different witness to impeach main witness ii. Offering a document/exhibit to impeach main witness iii. Offering prior testimony of main witness from
1. Another proceeding
2. Earlier proceeding in this case a. Trial b. Deposition c. Hearing
b. Bias, intent, prejudice, capacity i. ii.
iii. iv. v.
FRE 607. Who May Impeach a Witness: Any party, including the party that called the witness, may attack the witness's credibility. Where are bias in the FRE? Not explicit, but can be found in: a. FRE 401---broad definition of "relevant evidence" b. FRE 602---requirement of "personal knowledge" c. FRE 607---allows attack on credibility of witness d. FRE 611(b)---allows cross-examination on "matters affecting the credibility of a witness" e. Advisory Comm. Notes to FRE 608&610: reference bias Bias a. Personal relationships---familial, sexual, monetary, common membership in organizations, friendship, enmity or fear. b. Litigation relationships---paid informer, co-indictee, received immunity or plea deal (or hopes for it), co-plaintiff, co-defendant, adversity in litigation. Prejudice: Really, just what you'd expect. Capacity: Goes to ability to perceive via one of the five senses or to ability to comprehend or remember. a. Vision defects, hearing defects, memory defects, current alcohol or drug status, mental illness, mental limitations
54. Chris Ravenna testifies for the defense during its case in chief. After testifying that he went to the door and looked out as Joe left the store, Joe's lawyer asks, "What could you see?" For the prosecution, prepare to make and argue any objections. For the defense, prepare to respond. [Mitchell, 54]
a. Relevant: it shows visibility in the weather that night ? ability to see
55. During the prosecution's case in chief, Slyviak testifies that Officer Johnson was sitting in the car when Slyviak found the .38 slug and shouted to him that he had found it. The prosecutor asks Slyviak, "How well could you see Officer Johnson?" For the defense, prepare to make and argue any objections. For the prosecution, prepare to respond. [Mitchell, 21]
xiii. a. Irrelevant b. Different conditions: not raining, different places c. Can't bolster until impeached 608
56. Assume that neither party has listed Mrs. Easterfield as a witness. The plaintiff calls Kelly Emerson in her case in chief. After Emerson testifies that she served Mrs. Easterfield breakfast on 2/17, Jesse's lawyer asks, "What did Mrs. Easterfield have to drink with her breakfast?" For the defense, prepare to make and argue any objections. For the plaintiff, prepare to respond. [MacIntyre, 127]
a. Defense: irrelevant/ bolster before impeachment/403 b. See if Kelly has a good memory c. Mrs. Easterfield drank too much and more likely to act hysterically
57. Joe calls Raleigh Porter during his case in chief to provide testimony supporting his alibi. On cross, the prosecutor asks, "Didn't you give Joe a loan or a credit for his food when he was short on money?" For the defense, prepare to make and argue any objections. For the prosecution, prepare to respond. [Mitchell, 47]
a. Irrelevant, 403 b. Not biased, why?
58. Mr. Easterfield calls Lee Marlow during his case in chief. Marlow gives a favorable account of Mr. Easterfield's efforts as a member of the Board of Directors to ensure that the Club hired only qualified people. On cross, Jesse's lawyer asks, "Isn't it true that you heard a rumor that Mr. Easterfield got your predecessor as Executive Director of the Club fired for crossing him?" For the defense, prepare to make and argue any objections. For the plaintiff, prepare to respond. [MacIntyre, 163]
a. Defense: relevance/ 403 b. Prosecutor: Bias: you can have bias from fear, and from good feelings.
59. Rev. Taylor testifies for Jesse during her case in chief. On cross, the defense attorney asks, referring to when Jesse arrived at the rectory after leaving the E's house, "When you asked her when she last saw the brooch, didn't she shout, 'Do you think I took it' and start crying?" For the plaintiff, prepare to make and argue any objections. For the defense, prepare to respond. [MacIntyre, 138]
a. Irrelevant b. Capacity: Jesse can't observe the events correctly
60. Rev. Taylor testifies for Jesse during her case in chief. During cross of Taylor, defense counsel asks, "After Jesse left the Easterfields and moved back into the St. James Home working as a housekeeper in Rectory, didn't you take Jesse to lunch at a fancy downtown restaurant?" For the plaintiff, prepare to make and argue any objections. For the defense, prepare to respond. [MacIntyre, 117, 148]
a. Not relevant, no good faith basis - not sure if he has lunch in the first place, can't allude to any matter that's not supported by admissible evidence. b. Defense: biased: friendship
61. On direct examination of Reverend Taylor during Jesse's case in chief, plaintiff's counsel asks, "Reverend, tell us how you understand the oath you took moments ago?" Taylor answers, "I understand it to impose a legal obligation to tell the whole truth. But, more importantly, I regard it as imposing a sacred obligation before God to tell the absolute truth. Any
violation of that oath would expose me to all the pains of Hell." For the defense, prepare to make and argue any objections. For the plaintiff, prepare to respond. a. Religion 610: can't use to support the witness's credibility. c. Religion i.
FRE 610: Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility. a. Can be used to prove other things, like motive: e.g. Muslims don't like Jews.
d. Character for untruthfulness i.
Three ways: a. Through evidence of reputation and opinion (usually by extrinsic evidence - character witness) -608(a) b. Through evidence of non-conviction untruthful or dishonest acts (by cross examination only) - 608(b) i. You can use the underlying act, not the conviction c. Through evidence of convictions (by cross-examination or extrinsic evidence) - 609 Untruthful character keys - rules 608-609 a. Rules apply to all witnesses, including criminal defendants b. Rules allow only character for truthfulness c. Rules allow use of good or bad truthfulness character to show conformity FRE 608. (a) Reputation or Opinion 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 the evidence of truthful character is admissible only after character for truthfulness has been attacked. a. Note: no support of truthfulness before impeachment FRE 608(b) Specific Instances of Conduct Except for criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of; a. (1) The witness; or b. (2) Another witness whose character the witness being crossed has testified about. i. Note: you can question the character of the character witness ii. Specific acts, if they are probative, can be asked about on cross of truthfulness. (No extrinsic evidence)
1. Of the witness currently on the stand
2. Of a character witness who testified re: earlier witness's truthfulness by reputation or opinion
3. No extrinsic evidence of specific acts to prove truthfulness or untruthfulness - questioner bound by answer
4. Exception to rule: criminal convictions of a witness Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving --- or the witness's admitting
--- a dishonest act or false statement. (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. 609 (a) and (b) flow chart
a. b. If >10 yrs. Old, must also give notice c. Probative value of past non-crimen-falsi crime: a person who breaks any law in circumstances that make the conduct punishable by at least a year's imprisonment, has so little respect for propriety and the legal system that he is more likely to lie in court than an average person. d. Prejudice: i. party is associated with a witness who committed a past crime. "birds of a feather flock together" ii. significant risk that the jury will think a past violator of law will violate the law again.
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