IMPEACHMENT/REHABILITATION

Relevant bc witness lacks/has credibility, and therefore testimony should be disregarded/believed.

1) Testimony from live witness on the stand,

OR Declarant’s out-of-court statement is being used for truth of the matter asserted

CONTRADICTORY EVIDENCE/CASE IS NOT IMPEACHMENT.

-BIAS [6A CC]: witness/absent-declarant possesses a bias, such as

-familial relationship or emotional involvement with a party

-business/financial relationship with a party

-financial interest in the case

-deal with the gov’t to testify and receive leniency in a pending criminal case

-membership in an organization (like a gang/crime family) that is interested in the lawsuit

=>Can be impeached for bias w/ extrinsic evidence (that passes 403- waste of time). CXer doesn’t have to ‘take the witness’s answer’ (Abel).

*not a character attack, so cannot rebut w/ character for truthfulness.

=>REBUTTAL: Can rebut w/ EE.

-PERCEPTION/MEMORY: witness/absent/declarant has problem w/ ability to perceive, such as

-Physical impairment to sight or hearing

-Mental defect to memory or understand

-mental illness, mental handicap, effects of a stroke, etc.

-circumstances of the event make their statement unreliable (like distance, poor lighting).

-substance abuse that interferes w/ ability to process information or remember the incident in question? (have to demonstrate that they were on drugs at time of incident)

=>Can be impeached for sensory perception,

EE is probably admissible. (s/t 403 balancing – waste of time?)

=>REBUTTAL: Rebut w/ EE. + maybe prior consistent statement in for truth (see above)

-TRUTHFUL CHARACTER [FRE 608]

Party believes that witness/absent-declarant has a general problem with truthfulness that is not the subject of a conviction (even though conduct was potentially criminal)

NO=>Skip to #6

YES=> Can attack their character for truthfulness.

-NOT w/ religious/non-religious beliefs [FRE 610]

-Opinion (based on personal knowledge of the W) and reputation (in the community) evidence about the witness’ character for untruthfulness may be presented.

Ex: Incorrect - “his reputation is terrible” – too general

Ex: Correct – “I wouldn’t believe him under oath” – acceptable opinion testimony. Lollar

-Specific acts: witness may be CXed regarding his own specific instances of untruthfulness,

-but needs 1) good faith belief in the grounds, must take the answer, and can’t offer EE to dispute it.

*testifying doesn’t waive 5A privilege for self-incriminating questions about past acts.

-REHABILITATION (general principles from #4 apply here)

5) Witness’s/absent-declarant’s character for truthfulness has been attacked

-opinion/reputation testimony or specific act questions.

-indirect attacks – argument where only conclusion is that witness is lying

-past convictions offered under FRE 609

-(maybe) inconsistent statements

-MAJ: not attack on truthful character. Just reliability of specific statements.

-MIN: Beard approach, can qualify as an attack on truthfulness.

-Bias (minority). (can introduce EE no matter what, just usually not truthful character evid.)

-(few) perception/memory attacks.

NO=>evidence of their character as truthful and honest is not admissible. Continue to #6

YES=>truthfulness character evidence is admissible.

-(if attacked by a witness) then that witness himself can be impeached, same way.

-opinion + rep evidence, and CX the negative character witness re: specific instances.

-CRIMINAL CONVICTIONS [FRE 609]“This is one of the stupidest rules we have” – Mitchell

7) Witness was CONVICTED of a crime?

=guilty plea; conviction w/ pending appeal (but entitled to explain fact that it’s under appeal)

no contest plea (nolo contendere); arrest

NO=>SKIP to #15

-Using past crime for credibility? (OTHER PURPOSES ACCEPTABLE – motive, etc. see above)

8) Crime was a juvenile adjudication, or pardoned/annulled based on innocence/rehabilitation?

YES=>impeachment generally not admissible, UNLESS….

-pardoned conviction: person was convicted of a subsequent crime punishable by death or more than a year in prison.

-juvy adjudication: 1) offered in crim case; 2) adjudication was of witness other than the def; 3) an adult’s conviction for that offense would be admissible (under the checklist below); 4) admitting the evidence is necessary to fairly determine guilt or innocence (CC)

NO=>continue

9) Witness’s crime involved dishonesty or a false statement?

-Per se crimes of dishonesty: element of dishonesty/falsehood is necessary for commish of crime.

Examples: perjury, fraud, tax evasion, tampering w/ odometer, embezzlement, forgery, selling stolen property (akin to asserting that property wasn’t stolen, maybe)

-OR Crimes committed in a fraudulent or deceitful manner: false acts or statements were used to perpetrate the crime. Ex: Mitch dressing up as pregnant woman, stealing canned hams.

NO=>SKIP to #11

YES=>continue

10) Fresh crime? Fewer than 10 years have passed since the conviction or release from confinement (whichever is later)?

*multiple crimes being served concurrently: count 10 years from each separately.

*parole confinement.

NO=>SKIP to #14

YES=>Evidence of that crime is ADMISSIBLE, judge has no 403 discretion.

11) Witness’s (non-dishonest) crime was punishable by a year or more in prison or...

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