CHAP. 8: IMPEACHMENT of WITNESSES

1. CHAP. 8: IMPEACHMENT of WITNESSES Prof. JANICKE 2019

2. DEFINITION AND METHODS • IMPEACHMENT IS THE PROCESS OF ATTEMPTING TO WEAKEN THE PERCEIVED CREDIBILITY OF A WITNESS • MOST COMMONLY DONE ON CROSS • AT LEAST SIX METHODS OF IMPEACHMENT, EACH WITH ITS OWN RULES LIMITING REACH Chap. 8 -- Impeachment

3. SOME ARE IN THE PRINTED RULES; OTHERS ARE COMMON LAW Chap. 8 -- Impeachment

4. MEANING OF “EXTRINSIC EVIDENCE” • IMPEACHING OTHER THAN BY QUESTIONING THE TARGET WITNESS • DOING THE IMPEACHMENT BY • CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR • INTRODUCING A DOCUMENT TO IMPEACH A WITNESS Chap. 8 -- Impeachment

5. THE 3 GENERAL MODES OF IMPEACHMENT • 3 FORMS OF ATTACK ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS • A WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE Chap. 8 -- Impeachment

6. THE 4 GENERAL ATTACKS • PROVE IMPAIRED GENERAL COMPETENCY • UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE • EXTRINSIC EVIDENCE IS ALLOWED, IF NEEDED COMMON LAW Chap. 8 -- Impeachment

7. 2. POOR CHARACTER FOR VERACITY a. BAD OPINION OR REPUTATION FOR TRUTHFULNESS – EXTRINSIC WITNESS TESTIMONY IS ALLOWED, BUT NO SPECIFICS b. PRIOR DISHONEST NON-CONVICTION ACTS, ESTABLISHED ON CROSS. (HENCE EXTRINSIC EVIDENCE IS NOT ALLOWED FOR THIS) R. 608 Chap. 8 -- Impeachment

8. NOTE: • TEXAS RULES DO NOT ALLOW IMPEACHMENT BY DISHONEST NON-CONVICTION ACTS, EVEN ON CROSS-EXAM Chap. 8 -- Impeachment

9. EXAMPLE • ASKING A WITNESS ABOUT: LYING IN GRADE-SCHOOL, TO A FRIEND • ALLOWED ON CROSS IN A FEDERAL CASE • NEVER ALLOWED IN A TEXAS STATE CASE Chap. 8 -- Impeachment

10. CONVICTION OF A CRIME AS IMPEACHMENT R. 609 • FOR ANY CRIME INVOLVING DISHONESTY (EVEN MISDEMEANORS) • NO WEIGHING PROBATIVE VALUE OR PREJUDICE REQUIRED • FOR A NON-DISHONESTY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE Chap. 8 -- Impeachment

11. TIME LIMIT ON USING CONVICTIONS R. 609 • USUALLY A TEN-YEAR LIMIT IN EITHER CASE • FOR NON-DISHONESTY FELONIES • FOR DISHONESTY MISDEMEANORS • RUNS FROM DATE OF RELEASE FROM PRISON (IF ANY) • CAN BE EXPANDED IF HIGHLY PROBATIVE (RARE) Chap. 8 -- Impeachment

12. PROCEDURE • IF THE WITNESS ADMITS THE CONVICTION, NO EXTRINSIC EVIDENCE CAN BE ADDED TO PROVE THE CONVICTION • IF THE WITNESS DOES NOT ADMIT, CAN USE CONVICTION RECORD (NO ADD’L WITNESS) – • CRIME; DATE OF CONVICTION; SENTENCE. NO DETAILS Chap. 8 -- Impeachment

13. FURTHER RESTRICTIONS ON USING CONVICTIONS • CAN’T USE IF THERE IS • (i) A REHABILITATION CERTIF., OR • (ii) A PARDON BASED ON FINDING OF INNOCENCE Chap. 8 -- Impeachment

14. HOWEVER: • CAN USE JUVENILE CONVICTION FOR SIMILAR OFFENSE • CAN USE IF CONVICTION IS ON APPEAL • PENDING APPEAL WILL BE NOTED Chap. 8 -- Impeachment

15. 4th GENERAL MODE • 4. GENERAL BIAS • e.g., HATES ALL “YANKEES” • e.g., THINKS ALL PROFESSORS ARE CRIMINALS Chap. 8 -- Impeachment

16. THE SPECIFIC MODES • 3 FORMS OF ATTACK ON THE WITNESS’S CREDIBILITY IN THIS PARTICULAR CASE • IN GENERAL THE WITNESS MIGHT HAVE GOOD VERACITY, BUT NOT FOR HER PRESENT TESTIMONY COMMON LAW Chap. 8 -- Impeachment

17. MODES OF SPECIFIC IMPEACHMENT • IMPAIRED SPECIFIC COMPETENCY, i.e., ON THE OCCASION IN QUESTION EXAMPLES: • DRUNK • NIGHT-TIME • LOOKING THE OTHER WAY EXTRINSIC EVIDENCE IS ALLOWED Chap. 8 -- Impeachment

18. 6. PRIOR INCONSISTENT STATEMENT OF THE WITNESS R. 613 • OK, BUT MUST AFFORD TARGET WIT. A CHANCE DURING TRIAL TO EXPLAIN THE INCONSISTENCY • THEREFORE, CAN’T USE THIS MODE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH • USUALLY EASY TO INTRODUCE; CAN GO EXTRINSIC IF NECESSARY [DOCUMENT OR IMPEACHING WITNESS] Chap. 8 -- Impeachment

19. TEXAS RULE HAS ADD’L CONSTRAINTS: • MUST FIRST INFORM WITNESS ABOUT CIRCUMSTANCES OF HIS PRIOR STATEMENT • IF WITNESS UNEQUIVOCALLY ADMITS THE PRIOR STATEMENT, NO EXTRINSIC EVIDENCE ALLOWED TX. R. 613(a) Chap. 8 -- Impeachment

20. 7. SPECIFIC BIAS • GOOD VERACITY IN GENERAL, BUT NOT HERE: • EXAMPLES: • IN LOVE WITH THE PLAINTIFF • HATES THE DEFENDANT • SIMILARLY SITUATED NEIGHBORS – NOISE, ETC. • EXTRINSIC EVIDENCE IS ALLOWED COMMON LAW Chap. 8 -- Impeachment

21. TEXAS RULE ON NO-AMBUSH FOUNDATION FOR BIAS/PREJUDICE ATTACK • SIMILAR TO NO-AMBUSH REQMTS. FOR PRIOR INCONSISTENT STMT. • MUST FIRST TELL WITNESS THE CIRCUMSTANCES THAT TEND TO SHOW BIAS/PREJUDICE • NO EXTRINSIC EV. IF WIT. CONCEDES BIAS/PREJ TX. R. 613(b) Chap. 8 -- Impeachment

22. PROBLEMS/CASES • Abel • 8A • Manske • 8B • 8C • 8D >> Chap. 8 -- Impeachment

23. Luce • 8E Chap. 8 -- Impeachment

24. WHO CAN BE IMPEACHED ? • ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED • ON CROSS, THE FEDERAL SCOPE-OF-THE-DIRECT RULE DOES NOT BLOCKIMPEACHMENT QUESTIONS • CAN IMPEACH YOUR OWN WITNESS, WITHIN LIMITS [NO GAMES] Chap. 8 -- Impeachment

25. CAN IMPEACH AN IMPEACHING WITNESS • A NON-TESTIFYING OPPOSING PARTY GENERALLY CANNOT BE IMPEACHED • BUT A HEARSAY DECLARANT CAN BE IMPEACHED Chap. 8 -- Impeachment

26. SERIATIM IMPEACHMENT METHODS • MAY BE ABLE TO USE THEM ALL, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS >> Chap. 8 -- Impeachment

27. EXAMPLE #1 : • D. TESTIFIES • ON CROSS, PROSECUTOR TRIES TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN [R. 608(b)] • D. DENIES FILING ANY FALSE RETURN [THIS IMPEACHMENT ATTEMPT FAILS] • MY VIEW: PROSECUTOR CAN NOW SWITCH TO CONVICTION-OF-A-CRIME MODE: CONVICTION FOR FILING FALSE RETURN [R. 609] [IMPEACHMENT SUCCEEDS] Chap. 8 -- Impeachment

28. NOTE: SOME FED. COURTS SAY WHERE THERE HAS BEEN A CONVICTION, R 609 IS THE SOLE METHOD FOR IMPEACHING BASED ON THAT CONDUCT • SAVES TIME Chap. 8 -- Impeachment

29. EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (ALLOWED ON CROSS) [SUCCEEDS] • THEN WITH PRIOR INCONSISTENT STATEMENTS IN THIS CASE [ALSO SUCCEEDS] Chap. 8 -- Impeachment

30. SOME SURPRISING THINGS • NON-MIRANDIZED STATEMENT CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT! • PRE-MIRANDA-WARNING SILENCE CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT! Chap. 8 -- Impeachment

31. ILLEGALLY SEIZED ITEMS CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT • E.G.: ILLEGALLY SEIZED SHIRT WITH NIFTY CUT-OUTS • E.G.: ILLEGALLY SEIZED COCAINE • THESE IMPEACHMENT TOOLS ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF THE TRIAL SYSTEM Chap. 8 -- Impeachment

32. PROBLEMS/CASES • Webster • Harris • 8F • Havens Chap. 8 -- Impeachment

33. SOME CLOSE CALLS • D TESTIFIES IN A CRIMINAL CASE: NARCOTICS PEDDLING • DENIES EVERYTHING • ON CROSS, CAN YOU ASK: “HAVE YOU EVER SOLD NARCOTICS BEFORE THIS TIME?” [ASSUME NO CONVICTION] Chap. 8 -- Impeachment