Thursday, December 15, 2011
MBE Fast Fact: Specific Instances of Misconduct
An attorney can impeach a witness on "specific instances of misconduct" that the witness has committed even if that act has not led to a conviction. There are requirements for this type of impeachment, the most important of which is that the prior bad act has to bear on the witness's truthfulness. So, for example, an attorney can ask a witness whether it's true that the witness was fired from his last job because he embezzled money (embezzling money bears on the witness's truthfulness), but an attorney would not be permitted to ask the witness whether he was fired from his last job for assaulting a customer (assault does not bear on truthfulness). If the witness has been convicted of assault, then the question might come in instead to impeach on prior conviction, which has a separate set of requirements. One last thing to note about impeaching on specific instances of misconduct: these questions are only allowed on cross examination, and, as such, extrinsic evidence is not allowed.