Wednesday, May 8, 2013

Cross Examination vs. Extrinsic Evidence

I've written a bit on the blog about impeaching witnesses. In addition to knowing the rules regarding when to impeach a witness (for example, if the witness has committed a felony, made a prior inconsistent statement, etc.), it's also important to know how the witness may be impeached. The two possibilities are by cross examination and extrinsic evidence. (Extrinsic evidence is evidence other than that elicited by cross-examination, such as calling a witness to testify about another witness, or offering a copy of a judgement to prove that a witness has been convicted of a felony.)

Below is a list to help keep the distinctions in mind:

Prior Inconsistent Statements: Cross Examination and extrinsic evidence are allowed (but no extrinsic evidence to prove a prior inconsistent statement if the inconsistent statement is a collateral matter). Note also, that if extrinsic evidence is offered here, the witness (unless it's a hearsay declarant) must at some point be provided the opportunity to explain or deny the inconsistent statement.

Bias: Cross examination and extrinsic evidence are allowed. Before extrinsic evidence is offered, the witness must first be asked on cross examination about the facts showing bias.

Conviction of a Crime: Cross examination and extrinsic evidence (a copy of the judgement) are allowed.

Specific Instances of Misconduct: Cross examination only is allowed.

Opinion or Reputation for Truthfulness: Extrinsic evidence is allowed (calling other witnesses to testify to the reputation or give an opinion about another witness).

Sensory Deficiencies: Cross examination and extrinsic evidence are allowed.

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