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

The form is the same as when offering reputation of character under 404, but under 608 & 609 the character trait being attacked is truthfulness and it may not necessarily be at issue or disputed

When a Witness Testifies, their veracity automatically becomes an issue

Rule 608. Evidence of Character & Conduct of Witness

Opinion & Reputation

Credibility of a witness may be attacked or supported by evidence in this form, subject to limitations:

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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