Tuesday, August 23, 2011

Evidence: Impeachment

Impeachment is simply calling the credibility of a witness into question. The rules you'll need to know in regards to impeachment on the MBE are very specific, and are outlined below. First, let's discuss impeaching a witness by prior inconsistent statements.

Prior Inconsistent Statements:

A witness ("W1) while testifying says "X," but at some point prior to testifying had said "Y." An attorney cross examining W1 would like to ask W1 about the prior statement. This is allowed either on cross examination or by extrinsic evidence. Note, however, that if attorney wants to bring in the prior inconsistent statement with extrinsic evidence (for example calling another witness ("W2") to testify to the prior statement of W1, then W1 has to be given the opportunity to explain the prior statement. The federal rules do provide an exception to this foundational requirement, but generally W1 must be given an opportunity to explain.

Another issue is the evidentiary effect of the prior inconsistent statement. In other words, does the prior statement come in to prove the truth of the statement, or does it only come in to show that the statement was different from a second statement made while testifying, regardless of whether the initial statement was true? Usually, the latter; the prior statement is generally hearsay (look out for exceptions, though), admissible only for impeachment purposes. If, however, the prior statement was made under oath at a prior proceeding, it is admissible, not only for impeachment purposes, but also as substantive evidence to prove the truth of that statement.

Conviction of a Crime.

A witness can also be impeached by proof of a conviction for certain crimes. Any crime that involves dishonesty (felony or misdemeanor) will suffice. The rules are a bit less lenient for crimes that do not involve dishonesty. If the crime that the witness was convicted of did not involve dishonesty, then impeaching the witness based on the conviction of that crime is only proper if the crime was a felony (for example, rape). In addition, if the crime did not involve dishonesty, then the following rules apply: If the witness being impeached is a criminal defendant, the evidence will be excluded unless the prosecution has shown that the the conviction's probative value outweighs its prejudicial effect. If, in contrast, the witness is not a criminal defendant, the evidence will not be excluded unless the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect.

For all crimes listed above (those involving dishonesty, and those not involving dishonesty), impeachment will not be allowed if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), or if the witness has been pardoned, and the pardon is based on innocence, or the person pardoned has not been convicted of a subsequent felony.

Specific Instances of Misconduct:

Let's now assume that the testifying witness has not been convicted of a crime (so that the above rules do not apply.) A witness can still be impeached on cross examination with respect to an act of misconduct (even though the act did not lead to a conviction of a crime,) but only if the act is probative of truthfulness.


Along with the above, some further reasons for calling into question the credibility of a witness are the poor reputation of the witness for truthfulness, that due to sensory deficiencies, it is unlikely that the witness perceived what he/she claims to have perceived, and that the witness is biased.

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