Article 6 Witnesses Outline

ARTICLE VI: WITNESSES:

• FRE 607: Who May Impeach: The credibility of a witness may be attacked by any party, including the party calling the witness

  • Five types of impeachment

    • Bias: Witness’ like/dislike or fear of party, or witness’ self-interest

      • CL, not in FRE, but allowable under FRE

      • Basically always relevant

      • Abel: Witness’ and party’s common membership in organization probative of bias

        • Type of organization also relevant to show source and strength of bias, e.g. Aryan Brotherhood is secret group promoting lying and self-protection

          • Limit to scope of questioning on organization under FRE 403, e.g. name of organization and consequences of violating rules overly prejudicial

          • No limit on use of extrinsic evidence to show bias

      • Manske:

        • Self Interest: D claims Pszeniczka fabricated testimony to frame him

        • Fear: D claims Coburn and Campbell corroborated P’s false story because he had threatened them

    • Sensory perception: Physical or mental condition of witness that leads to inability to perceive accurately/to provide credible testimony based on something perceived

    • Character for credibility: FRE 608/609

    • Prior inconsistent statement: FRE 613

    • Contradiction: something that witness said in testimony is not true

      • Generally proved by extrinsic evidence

        • Can be prior inconsistent statements—but if they are offered for contradiction, they are offered for the truth of the matter asserted and require hearsay exceptions

        • Can be other evidence

          • E.g. OJ testifies he would never buy such ugly shoes, but he is impeached by contradiction when the prosecution presents his receipt for the Bruno Magli shoes

      • No contradiction on collateral matters: Contradiction evidence should have relevance aside from its impeaching effect

        • Tends to prove a substantive point, e.g. the shoes were O.J.’s above

        • Tends to contradict and to prove another impeaching point, e.g. Bias: witness said he met driver for first time after accident, but they had really been dating for a year

          • Collateral/not allowed e.g. Witness said he saw accident when returning from drugstore, but drugstore was not open that day.

• FRE 608: Evidence of Character and Conduct of Witness (Character for Credibility):

  • FRE 608(a): Opinion and Reputation evidence of character:

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

      • FRE 608(a)(1): Evidence may refer only to character for truthfulness or untruthfulness AND

      • FRE 608(a)(2): Evidence of truthful character admissible only after character of witness for truthfulness has been attacked by opinion or reputation evidence or otherwise (by bias, e.g.)

  • FRE 608(b): Specific Instance of (Non-Conviction) Conduct:

    • Other than conviction of crime (FRE 609), may not be proved by extrinsic evidence

      • Extrinsic evidence: anything other than the acknowledgment/denial of witness himself

    • But may, if probative of truthfulness or untruthfulness* and in discretion of court, be inquired into on cross examination

      • *Manske: Behavior taking advantage of others in violation of their rights is probative of truthfulness or untruthfulness:

        • Here, threatening witnesses was probative of untruthfulness

          • Meant to dissuade witnesses form testifying truthfully

          • Not merely probative of propensity for violence

        • Courts split on question of whether theft is dishonest act probative of (un)truthfulness

          • Manske court (7^th Cir.) believes that it is

    • (Rule cont’d) Cross about specific acts concerning witness’ character for (un)truthfulness

      • E.g. “Isn’t it true that you lied to get into law school?”

    • Cross about specific acts concerning character for (un)truthfulness of another witness as to whose character the witness being crossed has testified.

      • E.g. “Did you know that A lied to get into law school?”

        • Giving of testimony (by accused or any other witness) not a waiver of privilege against self-incrimination when examined re: matters that relate only to character for truthfulness.

• FRE 609: Impeachment by (Specific) Evidence of Conviction of a Crime:

  • FRE 609(a)(1):

    • Evidence that a witness other than an accused has been convicted of a crime (felony) shall be admitted subject to Rule 403

    • Evidence that an accused has been convicted of a crime (felony) shall be admitted if court determines that probative value of admitting evidence outweighs its prejudicial effect to accused (reverse 403)

      • Lipscomb: “All felony convictions are probative of credibility to some degree.” To perform the reverse 403 balancing:

        • Trial court has discretion about when to inquire into facts and circumstances underlying conviction

        • Trial court has discretion about how extensive inquiry into facts and circumstances of conviction should be

      • Luce: D must take the stand in order to preserve for appeal a ruling on motion in limine admitting evidence of prior convictions for purposes of impeachment

        • Harm is speculative unless D takes stand

  • FRE 609(a)(2):

    • Evidence that any witness has been convicted of a crime (misdemeanor/felony) shall be admitted if readily can be determined that was crime of dishonesty or false statement

      • Not subject to FRE 403 limitation

      • Much narrower than crimes “probative of truthfulness/untruthfulness” that come in under 608(b)

  • FRE 609(b): Time limit: Not admissible if more than 10 years has elapsed since later of conviction/release from confinement

    • Unless court determines in interests of justice that probative value of conviction substantially outweighs prejudicial effect (reverse 403)

      • Adverse party must be given advance written notice of intent to use such evidence

  • FRE 609(c): Effect of pardon, annulment, or certificate of rehabilitation:

    • Evidence of conviction not admissible if:

      • FRE 609(c)(1): Conviction has been subject of pardon,...

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