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Friday, June 21, 2019

Impeachment (Crimes vs. Prior Bad Acts)

At its core, impeachment is meant to raise issues as to the credibility of a witness. There are quite a few ways to impeach a witness. Two methods that cause some confusion since there are similarities and differences among them are impeachment by conviction of a crime and impeachment by a prior bad act.

Impeachment by Conviction of a Crime:

A witness may be impeached by proof that the witness has been convicted of a crime. Felonies involving dishonesty as well as felonies not involving dishonesty are allowable to impeach. It's more difficult, however, to offer a felony not involving dishonesty since the court will have the discretion to exclude it if the witness being impeached is a criminal defendant and the prosecution has not shown that the conviction's probative value outweighs its prejudicial effect or if the witness is not a criminal defendant and the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect. Note that the standard for a criminal defendant provides a greater level of protection.

Also to note is that generally if more than 10 years have passed since the date of conviction or from the date of release from confinement (whichever is later), a conviction for purposes of impeachment will not be allowable. Juvenile convictions are likewise not allowable nor are convictions obtained in violation of the defendant's constitutional rights. If a witness has been pardoned, the conviction for which the witness was pardoned may not be used to impeach the witness if the pardon is based on innocence or if the witness has not been convicted of a subsequent felony.

To impeach a witness by conviction of a crime, a prior conviction may be shown be either direct or cross examination. Introducing a record of the judgment is also allowable.

Impeachment by Prior Bad Act:

A witness may not have a crime on record but an attorney may want to impeach that witness on some act that did not rise to the level of a convicted crime. This is allowable subject to discretionary control of the trial judge. A witness may be interrogated with respect to an act of misconduct (a "prior bad act") only if the act is probative of truthfulness. Importantly, this is only allowable on cross examination, and the cross examiner must inquire about the act in good faith.

So, for example, it may be proper to ask a witness whether the witness had been terminated from a reason job after the witness was caught embezzling money, since that act is probative of the witness's likelihood of testifying truthfully. But asking whether the witness had been terminated for harassing another employee would be improper for this purpose since the act of harassment is not probative of truthfulness.

Extrinsic evidence to prove prior bad acts (proving the act with a method other than cross examination) is not permitted. In addition, the cross examiner may not reference any consequence the witness may have suffered as a result of the bad act. 

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