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Evidence Chapter 7 Impeachment And Rehabilitation Outline

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This is an extract of our Evidence Chapter 7 Impeachment And Rehabilitation document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School students.

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Table of Contents
Chapter 7. Impeachment and Rehabilitation...........................................................................1
A. Introduction...................................................................................................................................1
B. Character for Untruthfulness.........................................................................................................2

1. In General.......................................................................................................................................2

2. Prior Criminal Convictions...............................................................................................................5 a. Admissible and Inadmissible Convictions.....................................................................................................5 b. Preserving Claims of Error............................................................................................................................9

C. Prior Inconsistent Statements......................................................................................................10
D. Bias and Incapacity......................................................................................................................17
E. Specific Contradiction...................................................................................................................19
F. Rehabilitation...............................................................................................................................23

1. In General.....................................................................................................................................23

2. Character for Truthfulness............................................................................................................24

3. Prior Consistent Statements.........................................................................................................27

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 7. Impeachment and
Rehabilitation
A. Introduction
Introduction
 Evidence is impeachment if relevant because it suggests a certain witness lacks credibility and therefore their testimony should be disregarded; evidence is rehabilitation if relevant because it rebuts impeachment.
o Just as cross-exam is not limited to impeachment and redirect is not limited to rehabilitation, so impeachment is not limited to cross-exam and rehabilitation is not limited to redirect
 Different terms for distinguishing when rehabilitation or impeachment occurs through testimony of witness being impeached or rehabilitated versus through use of other evidence. Also distinguishes between different "modes" of impeachment—different kinds of facts that can undermine credibility of witness. FRE 607. Who May Impeach a Witness
 Any party, including the party that called the witness, may attack the witness's credibility.
FRE 806. Attacking and Supporting the Declarant's Credibility
 When a hearsay statement--or a statement described in Rule 801(d)(2)
(C), (D), or (E)--has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
McCormick on Evidence
 Five main modes of impeachment:
o Proof of prior inconsistent statement
 Most frequently employed; also called "self contradiction."
o Showing witness is biased
 On account of emotional influences such as kindship for one party or hostility to another, or motives of pecuniary interest,
whether legitimate or corrupt.
o Attack on witness' character
 Lack of religious belief is not available as basis of attack on credibility

Showing a defect of witness' capacity
 To observe, remember, or recount the matters testified about

Specific contradiction
 Proof by other witnesses that material facts are not as testified to by the witness being impeached.
 Process of impeachment can proceed in two stages:
o First, facts discrediting witness may be elicited from witness himself on cross-exam.
 A good faith basis for the inquiry is required.
 Certain modes of attack are limited to this stage; the shorthand expression is "you must take his answer."
 When a mode of attack is limited in this manner, crossexaminer is said to be restricted to "intrinsic" impeachment.
o Second, in other situations, facts discrediting the witness may be proved by extrinsic evidence.
 FRE Art. IV contains only a handful of express regulations for impeachment techniques; in all others, judge applies general principles of FRE 401-403. B. Character for Untruthfulness
Introduction
 Showing untruthfulness is a variety of character evidence.
 Traditional exception to character evidence rule for impeachment is codified in FRE 404(a)(3), but carries important limitations.

1. In General
FRE 608. A Witness's Character for Truthfulness or Untruthfulness
 (a) Reputation or Opinion Evidence. 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.
 (b) Specific Instances of Conduct. Except for a 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-examination,
allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
o (1) the witness; or

(2) another witness whose character the witness being crossexamined has testified about.
 By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.
FRE 610. Religious Beliefs or Opinions
 Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.
Advisory Committee Note to FRE 608
 Inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally.
o This sharpens relevancy, reduces surprise, waste of time, and confusion, as well as making lot of witnesses somewhat less unattractive.
 While the modern practice purports to exclude opinion, witnesses often seem to be giving opinion disguised as reputation. Common relaxation allows inquiry as to whether witness would believe the principal witness under oath. 

In conformity with FRE 405, this rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility

Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-exam of the principal witness or of a witness who testifies concerning the principal witness' character for truthfulness.
Safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time.

Advisory Committee Note to FRE 610
 While rule prohibits inquiry into religion for showing truthfulness,
inquiry for the purpose of showing interest of bias is not within the prohibition

E.g., disclosure of affiliation with a church which is party to the litigation would be allowable under the rule
United States v. Lollar, 606 F.2d 587 (5th Cir. 1979)
Facts:
 D appeals conviction for transport of stolen property, allegedly stolen from warehouse.
 After D testified at trial, P recalled one of the witnesses and asked whether he would believe D under oath.
o D counsel's objection overruled and witness testified he would not believe D.
Opinion (Hill):
 Though D cannot be compelled to take stand in his own defense, once he does he places his credibility in issue as does any other witness.
o D's decision to testify does not open door to attacks on general character, but does free P to offer evidence bearing on D's believability as a witness.
 FRE 608(a) allows witness to be directly asked to state their opinion of the principal witness' character for truthfulness.
o Rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness.
 TC was within discretion in overruling D's objection. Affirmed.
United States v. Rosa, 891 F.2d 1063 (3d Cir. 1989)
Facts: Ds were convicted of cocaine trafficking; a co-conspirator who pled guilty testified for P.
 Ds contend TC improperly prohibited their cross-exam of co-con regarding prior bribery because co-con had not been convicted for that conduct.
Opinion (Stapleton):
 Trial judge did not prohibit questioning because co-con was not convicted, but because conduct was not probative of truthfulness, in accordance with FRE 608 and 609.
o TJ permitted D to question co-con concerning conspiratorial oath of loyalty to crime family to extent it bore on truthfulness.
o TJ correctly allowed cross-exam concerning fraudulent insurance claim, since fraud is one of the offenses bearing on witness'
credibility.
o But bribery does not bear on truthfulness, was minimally probative given the permitted exam on the underlying fraud.
 TJ did not abuse discretion in limiting cross-exam. Affirmed.

United States v. White, 972 F.2d 590 (5th Cir. 1992)
Facts:
 Ds appeal convictions for conspiracy and distribution of cocaine.
 Ds sought to invoke FRE 404(b), along with FRE 405(b) and FRE 406 to introduce evidence of extrinsic offenses committed by P's star witness,
W.
o Proffered testimony by W's prior attorney that W had previously offered to fabricate testimony against an individual in exchange for government leniency in charges pending against him.
o D claimed evidence admissible under FRE 404(b) to show W's intent to fabricate evidence in order to gain favorable consideration from government in his own case.
o TC, relying on FRE 608(b) ruled that defendants could elicit evidence of W's credibility only on cross-exam of W, not through extrinsic source.
Opinion (Davis):
 Except for credibility, W's intent was not an issue in case. Evidence could only have served to demonstrate W had proclivity to lie and was therefore probably lying in this case.
 FRE 404(b) prohibits use of extrinsic act evidence for this purpose.
o Use of evidence to attack a witness' credibility is subject to the limitations of FRE 608.
o Specific instances of misconduct for the purpose of attacking credibility cannot be proved by extrinsic evidence.
 TC did not abuse discretion. Affirmed.
United States v. Aponte, 31 F.3d 86 (2d Cir. 1994) Facts:
 D appeals conviction for conspiracy to rob postal truck.
 TC excluded as hearsay a sworn statement by P's witness containing fabrications and false descriptions of robbers.
Opinion (Winter):
 TC applied wrong evidentiary rule, but nevertheless properly excluded evidence.
o W's fabricated statement and false descriptions were not offered for the truth of the matter asserted and therefore were not hearsay under FRE 801(c).
o Rather, they were offered to show W's capacity for deception.
However, they were excludable as extrinsic evidence of the character and conduct of W under FRE 608(b).

2. Prior Criminal Convictions
Introduction
 Upshot of general rules regarding impeachment for dishonesty is that a witness can be impeached with evidence that that it is in his nature to be deceitful, but not by extrinsic evidence of specific acts of dishonesty.
 Ban on impeachment with extrinsic evidence of specific acts of deception is waived for certain criminal convictions.
o CL allowed felonies, but FRE is more complicated.

a. Admissible and Inadmissible Convictions
FRE 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:
o (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: 

o (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.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation.
Evidence of a conviction is not admissible if:
o (1) the conviction has been the subject of a pardon, annulment,
certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
o (1) it is offered in a criminal case;
o (2) the adjudication was of a witness other than the defendant;
o (3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

United States v. Wong, 703 F.2d 65 (3d Cir. 1983)
Facts:
 D found guilty of mail fraud.
 D had twice previously been convicted for fraud. Before taking stand, D
moved to preclude use of these convictions for impeachment.
o TC stated probative value of convictions did not outweigh prejudicial effect, but since the convictions were for crimes involving dishonesty or false statement [called "crimen falsi"], FRE
609(a)(2) precluded balancing of prejudice against probative value.
 D claims error in conclusion that crimen falsi are admissible as impeachment without reference to their prejudicial effect.
Opinion (Per Curiam):
 FRe 609 differentiates on its face between convictions for crimes punishable by imprisonment of more than one year, which are admissible under FRE 609(a)(1) only if probative value outweighs prejudicial effect,
and convictions for crimen falsi, which are admissible under FRE 609(a)
(2) and simply "shall be admitted."

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