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.
- 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:
- Proof of prior inconsistent statement
  - Most frequently employed; also called “self contradiction.”
- 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.
- 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:
- 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, cross-examiner is said to be restricted to “intrinsic” impeachment.
- 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.

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.

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:
- (1) the witness; or
- (2) another witness whose character the witness being cross-examined 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.
- 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...

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