Saturday, December 3, 2011

MBE Fast Fact: Prior Bad Acts

One method of impeaching a witness is to ask that witness on cross examination about that witness's prior bad acts, even if the witness has not been convicted of any crime. However, if impeaching based on prior bad acts, rather than conviction of a crime, it's required that those bad acts are probative of truthfulness. A common trick on the MBE is to have an attorney question a witness as to whether the witness has ever been charged of a crime that does not implicate the defendant's truthfulness (for example, assault). Because the attorney is attempting to impeach the witness on prior bad acts (rather than conviction of a crime,), this question is inappropriate. (It may be appropriate to ask the witness if he has ever been convicted of assault). A question asking the witness if he had been charged with embezzlement at his prior place of employment, would, however, be appropriate (embezzlement is probative of truthfulness).

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