#17215 - Evidence Chapter 7 Impeachment And Rehabilitation - Evidence

Chapter 7. Impeachment and Rehabilitation 1

A. Introduction 1

B. Character for Untruthfulness 2

1. In General 2

2. Prior Criminal Convictions 5

a. Admissible and Inadmissible Convictions 5

b. Preserving Claims of Error 9

C. Prior Inconsistent Statements 10

D. Bias and Incapacity 17

E. Specific Contradiction 19

F. Rehabilitation 23

1. In General 23

2. Character for Truthfulness 24

3. Prior Consistent Statements 27

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Introduction

• Evidence is impeachment if relevant because it suggests a certain witness lacks credibility and therefore their testimony should be disregarded; evidence is rehabilitation if relevant because it rebuts impeachment.

  • Just as cross-exam is not limited to impeachment and redirect is not limited to rehabilitation, so impeachment is not limited to cross-exam and rehabilitation is not limited to redirect

• Different terms for distinguishing when rehabilitation or impeachment occurs through testimony of witness being impeached or rehabilitated versus through use of other evidence. Also distinguishes between different “modes” of impeachment—different kinds of facts that can undermine credibility of witness.

FRE 607. Who May Impeach a Witness

• Any party, including the party that called the witness, may attack the witness's credibility.

FRE 806. Attacking and Supporting the Declarant’s Credibility

• When a hearsay statement--or a statement described in Rule 801(d)(2)(C), (D), or (E)--has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

McCormick on Evidence

• Five main modes of impeachment:

  • Proof of prior inconsistent statement

    • Most frequently employed; also called “self contradiction.”

  • Showing witness is biased

    • On account of emotional influences such as kindship for one party or hostility to another, or motives of pecuniary interest, whether legitimate or corrupt.

  • Attack on witness’ character

    • Lack of religious belief is not available as basis of attack on credibility

  • Showing a defect of witness’ capacity

    • To observe, remember, or recount the matters testified about

  • Specific contradiction

    • Proof by other witnesses that material facts are not as testified to by the witness being impeached.

• Process of impeachment can proceed in two stages:

  • First, facts discrediting witness may be elicited from witness himself on cross-exam.

    • A good faith basis for the inquiry is required.

    • Certain modes of attack are limited to this stage; the shorthand expression is “you must take his answer.”

    • When a mode of attack is limited in this manner, cross-examiner is said to be restricted to “intrinsic” impeachment.

  • Second, in other situations, facts discrediting the witness may be proved by extrinsic evidence.

• FRE Art. IV contains only a handful of express regulations for impeachment techniques; in all others, judge applies general principles of FRE 401–403.

Introduction

• Showing untruthfulness is a variety of character evidence.

• Traditional exception to character evidence rule for impeachment is codified in FRE 404(a)(3), but carries important limitations.

FRE 608. A Witness's Character for Truthfulness or Untruthfulness

• (a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

• (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

  • (1) the witness; or

  • (2) another witness whose character the witness being cross-examined has testified about.

• By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

FRE 610. Religious Beliefs or Opinions

• Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

Advisory Committee Note to FRE 608

• Inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally.

  • This sharpens relevancy, reduces surprise, waste of time, and confusion, as well as making lot of witnesses somewhat less unattractive.

• While the modern practice purports to exclude opinion, witnesses often seem to be giving opinion disguised as reputation. Common relaxation allows inquiry as to whether witness would believe the principal witness under oath.

• In conformity with FRE 405, this rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility

  • Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-exam of the principal witness or of a witness who testifies concerning the principal witness’ character for truthfulness.

• Safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time.

Advisory Committee Note to FRE 610

• While rule prohibits inquiry into religion for showing truthfulness, inquiry for the purpose of showing interest of bias is not within the prohibition

  • E.g., disclosure of affiliation with a church which is party to the litigation would be allowable under the rule

United States v. Lollar, 606 F.2d 587 (5th Cir. 1979)

Facts:

• D appeals conviction for transport of stolen property, allegedly stolen from warehouse.

• After D testified at trial, P recalled one of the witnesses and asked whether he would believe D under oath.

  • D counsel’s objection overruled and witness testified he would not believe D.

Opinion (Hill):

• Though D cannot be compelled to take stand in his own defense, once he does he places his credibility in issue as does any other witness.

  • D’s decision to testify does not open door to attacks on general character, but does free P to offer evidence bearing on D’s believability as a witness.

• FRE 608(a) allows witness to be directly asked to state their opinion of the principal witness’ character for truthfulness.

  • Rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness.

• TC was within discretion in overruling D’s objection. Affirmed.

United States v. Rosa, 891 F.2d 1063 (3d Cir. 1989)

Facts:

• Ds were convicted of cocaine trafficking; a co-conspirator who pled guilty testified for P.

• Ds contend TC improperly prohibited their cross-exam of co-con regarding prior bribery because co-con had not been convicted for that conduct.

Opinion (Stapleton):

• Trial judge did not prohibit questioning because co-con was not convicted, but because conduct was not probative of truthfulness, in accordance with FRE 608 and 609.

  • TJ permitted D to question co-con concerning conspiratorial oath of loyalty to crime family to extent it bore on truthfulness.

  • TJ correctly allowed cross-exam concerning fraudulent insurance claim, since fraud is one of the offenses bearing on witness’ credibility.

  • But bribery does not bear on truthfulness, was minimally probative given the permitted exam on the underlying fraud.

• TJ did not abuse discretion in limiting cross-exam. Affirmed.

United States v. White, 972 F.2d 590 (5th Cir. 1992)

Facts:

• Ds appeal convictions for conspiracy and distribution of cocaine.

• Ds sought to invoke FRE 404(b), along with FRE 405(b) and FRE 406 to introduce evidence of extrinsic offenses committed by P’s star witness, W.

  • Proffered testimony by W’s prior attorney that W had previously offered to fabricate testimony against an individual in exchange for government leniency in charges pending against him.

  • D claimed evidence admissible under FRE 404(b) to show W’s intent to fabricate evidence in order to gain favorable consideration from government in his own case.

  • TC, relying on FRE 608(b) ruled that defendants could elicit evidence of W’s credibility only on cross-exam of W, not through extrinsic source.

Opinion (Davis):

• Except for credibility, W’s intent was not an issue in case. Evidence could only have served to demonstrate W had proclivity to lie and was therefore probably lying in this case.

• FRE 404(b) prohibits use of extrinsic act evidence for this purpose.

  • Use of evidence to attack a...