Chapter 6 Evidence - Impeachment

Chapter Theme

This Chapter sets forth the purpose and methods of impeaching a witness.
Instructor Approach

This chapter is saturated with concepts both revisited and newly visited. The instructor may do well to read aloud Rule 608 while the students follow along. This may sound elementary, but the rule is packed with exceptions. The forewarning should begin with the title of Rule 608. It is "Evidence of Character and Conduct of Witness." The operative word is "witness." Before any evidence of a person's character for truthfulness may be admitted, the person must first testify. The students should be reminded that defendants, in criminal cases, do not have to testify because of their constitutional protections under the Fifth Amendment. They do have to testify, however, before the defense is permitted to present evidence of the defendant's truthfulness. (This situation does not pose itself in civil cases.)
The task for the paralegal may be to interview the opponent's witnesses. Advise the paralegals that all opposition witnesses should be questioned about the topics of their testimony. Even if a witness is not specifically listed as a character witness, the witness may be able to provide opinion or reputation testimony regarding another witness's character for truthfulness or untruthfulness. It is during the interview, then, that the paralegal will learn whether the witness may be called to provide character evidence on behalf of the criminal defendant. If this is the case, the paralegal may want to prepare a motion in limine to preclude evidence of the defendant's character for truthfulness unless and until the defendant testifies.
As the book notes, the fact that a person becomes a witness does not create the right to supplement the witness's testimony with evidence of the witness's character for truthfulness. The witness's character for truthfulness, must first be attacked before it can be supported. The attack on the witness's character for truthfulness may occur through another witness's testimony or it may occur during cross-examination of the witness whose character is being attacked. Mere cross-examination of the witness regarding the witness's testimony, however, does not constitute an attack. The purpose of cross-examination is to test the witness's testimony. Therefore, the attack must clearly be an attempt to discredit the witness's character for truthfulness.

New words and phrases.

Collateral evidence
extrinsic evidence
personal bias
prior inconsistent statements
prove up a denial
refresh a witness's recollection

CHAPTER 6 - Answers to End of Chapter Review Questions.

1. What is impeachment?
(See section 6.1) Impeachment means to attack the credibility of a witness.
2. Who may impeach a witness?
(See section 6.2) Any party, including the party calling the witness, may impeach the witness.
3. How does one impeach a person who is reputed to be dishonest?
(See section 6.3) A witness's character for truthfulness may be impeached with either reputation or opinion evidence.
4. May a witness be impeached based on specific instances of past misconduct?
(See section 6.4) A witness may be cross-examined about specific past misconduct, if the cross-examination is probative of the witness's credibility. Extrinsic evidence may not be used, however, to "prove up a denial."
5. May a witness be impeached based on past felony convictions?
(See section 6.5) If the witness is other than the accused, the witness may be impeached with evidence of a past felony, subject to review under the standards of FRE 403 for unfair prejudice. If the witness is the accused, the court must make an actual

determination of the probative value of the evidence versus its prejudicial effect. However pursuant to FRE 609(a)(2), if the prior conviction (whether a felony or a misdemeanor) involves a crime of dishonesty or false statement, then evidence of that crime shall be admitted notwithstanding any prejudicial effect.

6. May a witness be impeached based on past misdemeanor convictions?

(See section 6.5) In cases of crimes involving dishonesty, whether the crime was a misdemeanor or felony, evidence of that crime is admissible for impeachment purposes. Otherwise, only felonies are admissible pursuant to FRE 609. However, on cross-examination pursuant to FRE 608(b), it is possible that a witness may be cross-examined about past conduct which resulted in misdemeanor convictions, if the cross-examination is probative of the witness's credibility. (Extrinsic evidence would be inadmissible under those circumstances, however, to prove up a denial.)

7. May a witness be impeached based on religious beliefs?

(See section 6.6) Evidence of a witness's religious beliefs is inadmissible to impeach the witness's credibility.

8. What is a prior inconsistent statement?

(See section 6.7) A prior inconsistent statement is a statement made previously that contradicts or conflicts with the current statements or testimony of the witness.

9. What does it mean to refresh a witness's recollection?

(See section6.8) Refreshing a witness's recollection involves providing the witness with a past recording, writing, business record or other document or soft-media record, in order to remind the witness of what that witness said, wrote, recorded, or had knowledge of previously.

10. What is a personal bias, and how might this be used to impeach a witness?

(See section 6.9) A personal bias is a prejudice or predisposition on the part of a witness that taints or skews that witness's perspective, or might cause that witness to be untruthful. The rules of evidence as applied in the courts are very lenient with respect to evidence regarding bias. If a material witness can be shown to have reason to be less than truthful because of a bias, that evidence will be admissible. Even extrinsic evidence is admissible to prove bias.

11. What is extrinsic evidence?

(See section 6.4) Extrinsic evidence is evidence other than the testimony of the witness who is testifying.

12. What is collateral evidence?

(See section 6.10) Evidence which is tangential or not sufficiently related to the triable issues in the case is called collateral.

13. Is evidence ever admissible under more than one rule?

Evidence is frequently admissible under several different rules of evidence for different reasons. Sometimes evidence which is prohibited under one rule is admissible under another. In such circumstances, the court will generally scrutinize the proffer to determine whether the evidence is unduly prejudicial or misleading.


CHAPTER 6 - Answers to Applications - page 100/101 textbook, Chapter 6

Hypothetical #1

1. Mr. Smith's prior statement to his sister would be admissible as impeachment evidence regarding his credibility. Mr. Smith could be cross-examined on the stand about the prior statement. If he denies having made such a statement, his sister could be called to testify about it. FRE 613 allows extrinsic evidence to be brought in to prove the prior inconsistent statement if the witness denies having made it.

2. Evidence of Mr. Smith's sister's prior engagement to Mr. White may admissible to show that Mr. Smith has a bias against Mr. White. Since Mr. White jilted Mr. Smith's sister, it may be that Mr. Smith harbors a grudge and wishes to see Mr. White convicted on the gun smuggling charges, irrespective of their merit. Since the impeachment issue involves bias, extrinsic evidence would be admissible. Mr. Smith's sister could be called and asked about Mr. Smith's prior inconsistent statement, and the unhappy outcome to the relationship she shared with Mr. White.

3. Evidence of Mr. Smith's sister's prior engagement to Mr. White is admissible to show the basis for Mr. Smith's potential bias.

4. Under the Federal Rules of Evidence, Mr. Smith's prior inconsistent statement is only
admissible to impeach Mr. Smith's credibility. It is not admissible to prove that Mr. White's boat was in fact docked during the relevant time period. This is because is would be hearsay if admitted to prove the truth of the assertion. (In some states, suchas Arizona, the courts allow the admission of prior inconsistent statements for general purposes, to prove the truth of the matter asserted in the statement itself. The reasoning is that even if the prior statement is admitted for impeachment purposes, the jury will likely consider whether the statement is true of not. Notwithstanding any limiting instruction, the jury isn't likely to make the subtle distinctions required to use the evidence for impeachment purposes only. Arizona therefore takes a practical, if theoretically inconsistent approach, and allows the evidence in for general purposes.)

Hypothetical #2

1. Sharon's embezzlement conviction would be admissible under FRE 609(a)(2). Embezzlement is usually a crime involving a high level of deceit, and conviction of such a crime would be admitted to impeach Sharon's character.

2. Sharon's embezzlement conviction is not relevant to the elemental issues of this case, but it is relevant to her credibility. The rationale behind admitting such convictions is that since Sharon was willing to be deceiptful and abscond with someone else's money by embezzling, such a conviction is probative as to the credibility of her word.

3. The court is without authority under FRE 609(a)(2) to exclude Sharon's embezzlement conviction. Although in most instances, the court is required to determine that the probative value of a prior conviction outweighs its prejudicial effect pursuant to FRE 403, when the prior conviction is for a crime involving deceit, the court is not given the discretion to exclude the evidence. The language of 609(a)(2) says that the evidence of a crime of dishonesty or false statement "shall be admitted." The evidence comes in if it is proffered. (The arguments formulate on what constitutes a crime involving dishonesty or false statement.)

Hypothetical #3

1. Sharon's felony robbery conviction would be potentially admissible under FRE 609(a)(1).

2. Sharon's felony robbery conviction is not relevant to prove the current charge of aggravated assault. It is only relevant to impeach her credibility as a witness.

3. Sharon's felony robbery conviction would be relevant to impeach her credibility, pursuant to FRE 609(a)(1). However, before the court would be allowed to admit this evidence, it would have to make a determination measuring the probative value of that evidence against its prejudicial effect. If the probative value is outweighed by the prejudicial effect, the prior conviction evidence is inadmissible. (Robbery is not a crime of deceit by definition so the court does have discretion under FRE 609(a)(1) which it would not have under 609(a)(2).) Arguments to exclude the prior robbery conviction would center around the difficulty a jury would have in considering such a conviction in terms of its impeachment value alone. There are correlations between robbery and aggravated assault that might be difficult to ignore. On the other hand, since Sharon's sole defense is based on her word that the gun went off by accident, any evidence regarding her credibility would be extremely probative and important. Therefore, there is a good chance that the court would admit this prior conviction for impeachment purposes, even after weighing its prejudicial effect.