Tuesday, October 9, 2012

MBE Fast Fact: Impeachment by Extrinsic Evidence

Witnesses can be impeached either through cross-examination or by extrinsic evidence (for example by calling a witness to testify to the bias of another witness). But the ability to impeach based on extrinsic evidence is limited by the rule stating that a witness cannot be impeached with extrinsic evidence on a collateral matter. Extrinsic evidence can only be used to impeach a witness if the evidence also bears on a substantive issue in the case. Watch for situations in which a witness is called to testify that a previous witness had lied, but that which the previous witness had lied about was not a fact relevant to the case. This type of evidence will be deemed collateral, and will not be admissible. That isn’t to say that the witness cannot be impeached by asking about his apparent lie, but the witness would have to be asked directly (as this type of evidence would be deemed intrinsic, rather than extrinsic).

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