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CHAP. 8: IMPEACHMENT of WITNESSES

This article explores the process of impeachment of witnesses, including its definition, different methods, and specific examples. It also discusses the use of extrinsic evidence and the limitations in different jurisdictions.

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CHAP. 8: IMPEACHMENT of WITNESSES

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  1. CHAP. 8: IMPEACHMENT of WITNESSES Prof. JANICKE 2016

  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. MEANING OF “EXTRINSIC EVIDENCE” • DOING THE IMPEACHMENT BY • CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR • INTRODUCING A DOCUMENT TO DO SO Chap. 8 -- Impeachment

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

  5. THE 3 GENERAL ATTACKS • PROVE IMPAIRED GENERAL COMPETENCY • UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE • EXTRINSIC EVIDENCE IS ALLOWED Chap. 8 -- Impeachment

  6. 2. POOR CHARACTER FOR VERACITY a. BAD 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) Chap. 8 -- Impeachment

  7. TEXAS: DOES NOT ALLOW IMPEACHMENT BY DISHONEST NON-CONVICTION ACTS, EVEN ON CROSS-EXAM Chap. 8 -- Impeachment

  8. CONVICTION OF A CRIME • ANY CRIME INVOLVING DISHONESTY • NO WEIGHING PROBATIVE VALUE OR PREJUDICE REQUIRED • ANY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE • TEN-YEAR LIMIT IN EITHER CASE Chap. 8 -- Impeachment

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

  10. THE 3 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 Chap. 8 -- Impeachment

  11. 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

  12. 5. PRIOR INCONSISTENT STATEMENT OF THE WITNESS • EASY TO INTRODUCE; CAN GO EXTRINSIC IF NECESSARY • 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 Chap. 8 -- Impeachment

  13. 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

  14. 6. BIAS OR PREJUDICE • EXAMPLES: • FRIEND OR RELATIVE OF A PARTY • ANIMOSITY • BUSINESS OBJECTIVE IF ONE SIDE WINS • SIMILARLY SITUATED NEIGHBORS • EXTRINSIC EVIDENCE IS ALLOWED Chap. 8 -- Impeachment

  15. 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

  16. PROBLEMS/CASES • Abel • 8A • Manske • Hit the Deck • History of Lying • Faker Thug Chap. 8 -- Impeachment

  17. Luce • 8E Chap. 8 -- Impeachment

  18. 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[NOTE R. 611(b)’s SPECIFIC EXCEPTION FOR CREDIBILITY QUESTIONS] • CAN IMPEACH YOUR OWN WITNESS Chap. 8 -- Impeachment

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

  20. SERIATIM IMPEACHMENT METHODS • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS >> Chap. 8 -- Impeachment

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

  22. EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) [SUCCEEDS] • THEN WITH PRIOR INCONSISTENT STATEMENTS [ALSO SUCCEEDS] Chap. 8 -- Impeachment

  23. 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 D. Chap. 8 -- Impeachment

  24. 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 TRIAL SYSTEM Chap. 8 -- Impeachment

  25. PROBLEMS/CASES • Webster • Harris • Jenkins • Havens • 8G • Medical Therapy Sciences Chap. 8 -- Impeachment

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