Sunday, April 29, 2012

MBE Fast Fact: Impeachment

When impeaching a witness based on that witness having committed a crime at some time prior to the testimony, the following should always be kept in mind: A witness can be impeached by offering evidence that the witness was convicted of a felony. If the crime is a felony, it is admissible to impeach, provided that the conviction or release from confinement (whichever is later) occurred within the last ten years, and provided that the conviction has not been the subject of a pardon. One other consideration here is that for this evidence to be admitted, the court must determine that the probative value of admitting the evidence outweighs its prejudicial effect.

The same analysis does not apply if the crime used as the basis for impeachment is a misdemeanor. If the crime is a misdemeanor, then that crime is only admissible to impeach if the crime involves dishonesty or false statements. So, unlike with felonies, if a question poses a situation in which the lawyer is attempting to impeach a witness with conviction of a misdemeanor, it is necessary to then determine which crime was committed. If the crime committed involves dishonesty, it may be admissible, but also apply the 10 year/pardon rule, as stated above.

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