#11409 - Impeachment - Evidence

Impeachment

1. Methods

   1. Bolstering

      1. Generally must wait until W is impeached (Rehabilitation)

      2. Exceptions:

         1. Timely complaint

         2. Prior identification (also admissible as substantive evidence that identification was correct – 801(d)(1)(C))

   2. Show W’s propensity for dishonesty (character trait)

   3. Show W is biased or has interest in case

   4. Attack W’s testimonial qualities

      1. Ability to observe (perceive)

      2. Ability to remember

      3. Ability to relay accurately (narrate)

      4. Understanding of duty to tell truth

   5. Show prior inconsistent statement (FRE 613)

   6. Contradict W’s testimony through other evidence

2. Consequences when evidence is admissible only to impeach

   1. Because it’s not substantive evidence, it does not count toward the proponent’s burden of production or persuasion

      1. Doesn’t go into judge’s analysis in summary judgments (can’t judge credibility)

   2. Cannot be used as proof of disputed fact (besides witness’s credibility)

   3. Opponent can object under 403.

   4. Opponent can also get limiting instruction.

3. Collateral matters

   1. Not allowed

   2. Policy: confusion of issues, undue consumption of time

4. Impeaching Hearsay Declarant: FRE 806

   1. Any evidence that would be admissible if declarant was W is also admissible against hearsay declarant

5. FRE 608 – non convictions

   1. 608(a) = Reputation and Opinion

      1. only on character traits relevant to truthfulness

      2. most states don’t allow opinion evidence, but FRE does

      3. OPENS DOOR TO SPECIFIC ACTS (608(b)(2)): when W offers opinion/reputation, W may be cross-x’d on specific acts probative of truthfulness that impeached party may have committed.

         1. Purpose: to test the basis for the character witness’s reputation/opinion testimony

      4. May use to rehabilitatie only after OP has attacked W’s character for truthfulness

   2. 608(b) = specific acts of W (non-convictions)

      1. Only permitted on Cross-X to…

         1. Establish W’s character for truthfulness/untruthfulness

         2. Establish W2’s character for truthfulness/untruthfulness (as long as W impeached W2)

      2. Factors

         1. Must relate to truthfulness

         2. Inquiry must be based on good faith/reasonableness

         3. Subject to 403 exclusion

         4. Bound by W’s answer (no extrinsic evidence)

6. FRE 609 – Convictions (arrest is not enough)

   1. If more than 10 years have passed…

      1. Generally not admitted, too remote

      2. Reverse 403

      3. Note: Time limitation runs from date of conviction or date of release, whichever is most recent

   2. If less than 10 years…

      1. 609(a)(1): Crime must be punishable by death or by over a year in prison and must satisfy balancing test

         1. Balancing test for all Ws except crim D: 403

         2. Balancing test for Ws that are crim Ds: reverse 403

      2. 609(a)(2): Crimen falsei: automatically admitted, regardless of punishment and balancing test.

         1. Crimen Falsi – usually statutory elements will indicate whether a showing of such a dishonest act was required to convict

   3. Not admissible if…

      1. Conviction has been subject of: pardon, annulment, certificate of rehab, other equivalent procedure based on finding that the person has been rehabilitated

   4. Juvenile convictions admissible if…

      1. Offered in criminal case

      2. Adjudication was of a witness other than the D

      3. An adult’s convictions for that offense would be admissible to attack the adult’s credibility, and

      4. Admitting the evidence is necessary to fairly determine guilt or innocence

   5. Conviction is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

   6. California Distinction

      1. CEC 788 (DON’T NEED TO KNOW)

         1. W’s credibility may be attacked by evidence that he has been convicted of any felony, not just crimen falsi

         2. Beagle:

            1. Balancing factors of Beagle

               1. Courts should consider how prior conviction

                  1. Reflects on honesty

                  2. Near/remote in time

                  3. For safe or similar conduct as charged

                  4. Adverse effect of admission on D’s willingness to testify

         3. No different test for old convictions

7. FRE 613: Prior Inconsistent Statements

   1. Admissible only if W is given opportunity to explain/deny the statement and adverse party is given an opportunity to examine the W about it

      1. BUT this foundation requirement may be dispensed with if “the interests of justice otherwise require.”

   2. Must give notice to OP if asked

   3. 403 balancing test applies

   4. California distinction

      1. CEC 1235 (prior inconsistent statements)

         1. Inconsistent statement can be used as substantive evidence if the statement is otherwise admissible under Section 770

         2. (A party can introduce inconsistent statement of his own witness whether or not the witness gave damaging testimony and whether or not the party was surprised by the testimony.)

         3. Policy: the dangers that the hearsay rule is meant to protect against are not present because…

            1. Declarant is in court

            2. Declarant may be cross examined

            3. PIS is more likely to be true because it was made nearer in time to the matter to which it relates

            4. The trier of fact can observe the demeanor of the declarant

      2. Sanchez – hearsay statement of W inconsistent with W’s testimony (“he’s going to die tomorrow”). The entire charge hinges on this statement, b/c if it is admitted for it’s truth, D will be charged with conspiracy/gang membership/A&A murder. Difference between 50 years and no jail time.

8. Bias and Contradiction (Wigmore)

   1. Foundation:

      1. W must first be asked about facts that show bias/interest

      2. If W admits facts claimed, Judge might not allow in further extrinsic proof

      3. Admissibility governed by 401, 402 and 403.

   2. Types

      1. Bias

         1. Covers all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally

            1. Ex: family relationship with one of the parties

         2. Extrinsic evidence okay

      2. Interest

         1. Specific inclination which is apt to be produced by the relation between the W and the cause at issue in the litigation

            1. Ex: expectation of favorable treatment from prosecutor or sentencing judge in return for the testimony

         2. Extrinsic evidence okay

      3. Corruption

         1. Conscious false intent which is inferable from giving or taking a bribe or from expressions of a general unscrupulousness for the case at hand

            1. Ex: attempt to bribe another W or the receipt of money for testimony

         2. Extrinsic evidence ok

      4. Contradiction

         1. Serves primarily as substantive evidence, and secondarily as impeachment evidence

            1. No codified rules

            2. Courts recognize it’s OK b/c relevant

            3. Can enter this evidence either through witness, or through extrinsic

         2. If evidence is directly relevant to issues in litigations”

            1. Can be introduced for substantive value

            2. Impeachment value is secondary

         3. If evidence logically undermines a witness’s story, it may be collateral

            1. Factors of collateralness

               1. Facts not relevant to substantive...