IMPEACHMENT OF WITNESSES
Direct Examination & Cross Examination
Rule 611. Mode & Order of Interrogation & Presentation
Control by the Court
Ct. shall exercise reasonable control over the mode & order of interrogating witnesses so as to
Make the interrogation & presentation effective for ascertaining the truth
Avoid needless time consumption
Protect witnesses from harassment or undue embarrasment
Scope of Cross-Examination
Limited to the subj. matter of the direct examination and matters affecting the credibility of the witness. Court can exercise discretion & allow additional inquiry on other matters
Leading Questions
Shouldn’t be used on direct examination except as may be necessary to develop the witness’s testimony. Ordinariliy leading questions shld be allowe don cross-exam. If a party calls a hostile witness, an adverse party, or a witness identified w/ an adverse party, interrogation may be by leading questions
Direct Examination
Normally requires the lawyer to ask questions that call for short factual answers
If a question calls for a lengthy answer it is called “asking for a narrative response” and is discouraged
Non leading questions are those that don’t suggest an answer & are often open ended & use “who, what, where, when why, how”
Cross Examination
The means by which a lawyer can attack the credibility of a witness, diminish any harmful effect of the witness’s direct testimony, and obtain info that may be favorable
Impeachment of a Witness
It means to discredit a witness for being untruthful in some manner
Impeachment comes in different varieties:
Specific Impeachment
Contradiction=he said green, then he said red
Prior Inconsistency= he said yes, earlier he said no
Non Specific Impeachment
Perception/Memory=can be general (person not to be trusted) or specific (extrinsic okay)
Bias= invested in a certain outcome, etc. (extrinsic okay)
Veracity
Reputation/Opinion Rule 608(extrinsic okay like another witness)
Specific Acts
No Convicion Rule 608 (no extrinsic)
Conviction Rule 609
General Impeachment Guidelines: Impeaching a Party’s Own Witness
Rule 607: allows a lawyer to impeach any witness, including those he/she calls to the witness stand (not in CL)
U.S. v. Morlang
The prosecution may not call a witness it knows to be hostile for the purpose of eliciting otherwise inadmissible impeachment testimony in order to avoid the hearsay rule.
Bostering a Witnesses Credibility
Once they swear or affirm to tell the truth, all testifying witnesses are presumed to be credible, so CL practice didn’t allow an attny to strengthen his own witness’s testimony by “bolstering it”
Can’t do this till AFTER credibility is attacked
U.S. v. Rosario-Diaz
Prosecutors may not place the prestige of the US behind a witness by making personal assurances about the credibility of a witness or by indicating that facts not before the jury support the witness’s testimony
To convince the jury that a witnesses account is credible, the prosecution must do so by presenting competent & reliable evidence & not through improper vouching that could invite jury to find guilt on the basis of something other than evidence actually presented.
Rehabilitation
Okay to do in most circumstances once credibility attacked
Impeaching a Witness’s Character for Truthfulness
When a Witness Testifies, their veracity automatically becomes an issue
Rule 608. Evidence of Character & Conduct of Witness
Opinion & Reputation
Evidence may refer only to character for truthfulness or untruthfulness; and
Evidence of truthful character is admissible only AFTER the character of a witness for truthfulness has been attacked by opinion or reputation evidence or otherwise
Rule 608(a) allows a witness to testify that a prev. witness shouldn’t be believed by testifying to the other witness’s reputation for dishonesty, or by stating his own opinion of that witness’s untruthfulness, or both
US v. Whitmore
Must establish that witness has a foundation (an acquaintance w/ the witness testifying about” with “his “community and the “circles in which he has moved, as to speak w/ authority of the terms in which generally the witness is regarded”)
Specific Instances of Conduct
Other than conviction of a crime under Rule 609, may not be proved by extrinsic evidence. But may, in courts discretion, if probative of truthfulness or untruthfulness, be inquired into on cross-exam
Concerning the witness’s character for truth/untruth, or
The character for truth/untruth of another witness as to which character this witness has testified
A testifying witness may be challenged w/ his own specific acts of dishonesty by the ct allowing the cross-examiner to question him directly about the acts, even if they didn’t result in conviction
Judge determines if they are sufficiently probative of dishonesty to be admitted
If the witness denies the dishonest acts, the questioner must “take his answer”, he CANT bring in other extrinsic evidence to refute the denial.
US v. Whitmore II
Truthfulness?
Broad view= virtually any misconduct
Narrow view=only misconduct involving falsehood and deception
Middle View=behavior seeking personal advantage by taking from others in violation of their rights
Rule 609. Character for Truthfulness and Acts Resulting in Conviction
General Rule. For purposes of attacking the character for truthfulness of a witness
Evidence that a witness other than the accused has been convicted of a crime SHALL be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted...
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