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Mastering Witness Impeachment: Techniques & Constraints

Explore methods & limitations in weakening witnesses' credibility using extrinsic evidence. Learn the rules, modes, and specific attacks involved.

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Mastering Witness Impeachment: Techniques & Constraints

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  1. CHAP. 8: IMPEACHMENT of WITNESSES Prof. JANICKE 2015

  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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