IMPEACHING WITNESSES IN THE COURTROOM

1. IMPEACHING WITNESSES IN THE COURTROOM Alabama Probate Judges Conference January 2018 Scott Donaldson Judge, Alabama Court of Civil Appeals

2. “Wise judges may come to differing conclusions in similar situations.” McCormick on Evidence

3. P(H/E) < P(H)If P(E/not-H) > P(E/H), then >H • Evidence = E • Hypothesis = H • Probability = P • / = Conditioned on or assuming • < = less than • > = more than • P(H/E) < P(H) • If P(E/not-H) > P(E/H), then >H

4. Impeach: “to cast doubt on; to challenge the credibility or validity of the testimony of a witness.” Merriam-Webster’s Collegiate Dictionary (11th ed.). • Weight and credibility are always matters for the fact-finder – the judge in bench trials. • Just because someone is impeached does not mean the testimony cannot be believed.

5. Selected Topics • Contradiction • Prior inconsistent statements • Bias, prejudice, interest • Criminal convictions • Truthful or untruthful character and conduct.

6. ARE 611 - Discretionary functions of court (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

7. “Wide open cross” state • FRE 611 (b): Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. • ARE 611(b): The right to cross-examine a witness extends to any matter relevant to any issue and to matters affecting the credibility of the witness, except when…

8. …a party calls an adverse party or an officer, a director, or a managing agent of a public or private corporation or a partnership or association that is an adverse party, or a witness identified with an adverse party. In those excepted situations, cross-examination by the adverse party may be only upon the subject matter of the witness’s examination-in-chief or upon the witness’s credibility.

9. “A party is given wide latitude on cross-examination to test a witness's partiality, bias, intent, credibility, or prejudice, or to impeach, illustrate, or test the accuracy of the witness's testimony or recollection as well as the extent of his knowledge. …The range of cross-examination rests largely in the discretion of the trial court…However, ‘where the witness' testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial court to disallow cross-examination.’ ” Williams v. State, 710 So.2d 1276, 1327–28 (Ala.Cr.App.1996).

10. Who may impeach? The credibility of a witness may be attacked by any party, including the party calling the witness. ARE 607. For example, may call an adverse party.

11. THE MOST IMPORTANT QUESTION TO ASK • What is the PURPOSE of this evidence? • Permits the trial judge to identify the framework for the ruling. • Because if the purpose is only to make the witness look bad, or to show the witness is unlikable, the evidence is likely inadmissible.

12. Contradiction • The fact-finder may accept or reject any part of any testimony of any witness, including “expert” witnesses. • Witness may be cross-examined on contradictory statements, but can’t present extrinsic evidence to contradict a witness on a collateral matter. Time, confusion, etc.

13. Prior Inconsistent Statements Two types: Impeachment and Truth. “Prior inconsistent statements of a witness made out of court are admissible in evidence for the purpose of showing that the witness is not worthy of belief - that is, for impeachment purposes. Such evidence is not classed as hearsay….”.Jones v. State, 531 So.2d 1251, 1254 (Ala. Crim. App. 1988).

14. Prior Inconsistent Statement – Under Oath 801(d)(1)(A) A statement is not hearsay if – [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, …

15. Witness may be cross-examined on a prior statement without necessarily disclosing it, but W has to be confronted with it before introduced through extrinsic evidence. • “Nothing in Rule 613(b) affects that line of authority providing that a witness’s acknowledgment of having made a prior statement precludes the use of extrinsic evidence to prove the inconsistent statement.” Committee Notes to 613.

16. Must also give witness sufficient circumstances of the statement so that it can be fairly admitted or denied. • “If a proper predicate has been laid, proof may be made ... that the witness made the self-contradictory statements whether the witness denies having made them or merely states that he does not remember whether or not he made them.” Carr v. State, 495 So.2d 714, 717 (Ala. Crim. App. 1986).

17. ARE 616 – Bias, prejudice, and interest A party may attack the credibility of a witness by presenting evidence that the witness has a bias or prejudice for or against a party to the case or that the witness has an interest in the case. For example, a relationship, something to gain or lose, some reason to want one side to win, not disinterested. Not contained in FRE.

18. May prove by extrinsic evidence, perhaps even where witness has acknowledged point on C/E but not to extent desired. • Must confront witness first on C/E with a biased statement, but not necessarily on biased relationships or interest. McElroy’s Alabama Evidence, §149.01(6)(b).

19. ARE 609 - Conviction of crime (a) General rule. For the purpose of attacking the credibility of a witness,   (1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and

20. (B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

21. Either punishment by death or imprisonment > 1 year (subject to special balancing test, not 403), or, dishonesty/false statement (no balancing test, automatically admissible). Identify crime and sentence, not details. • Any theft involves dishonesty/false statement. Huffman v. State, 706 So.2d 808 (Ala. Crim. App. 1997). • Not including juvenile and YO and subject to time limitations. Pardon, parole, and appeal do not affect admissibility.

22. ARE 608 - Character and Conduct of Witness (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and…

23. (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Like ARE 404, we start with the least dangerous, most tepid approach – opinion or reputation. Must have basis for opinion or knowledge of reputation. Section (2) is rehabilitation only after attack – similar to prior consistent statements.

24. (b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

25. (608(b) cont.): They may, however, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. This means that W2, a reputation or opinion witness about W1, can be questioned about specific acts of W1 that W2 should know of (reputation) or might change W1s opinion.

26. Similar to 405/405. Start with tepid reputation or opinion, then specific acts are permitted on cross-examination to test the extent of the knowledge of the reputation or quality of the opinion. • Short hand rule with exceptions – if someone gives an opinion or reputation of another person, they can be crossed about specific acts of the other person if there is a “good faith” basis for the question.

27. Judge J. Russell McElroy in American Law Institute Proceedings 225-226 (5-14-1942) “I should like to say a word or so about this supposedly horrible thing of placing discretion in the trial judge. …Dozens of matters in every trial must be committed to the discretion of the judge. We never have and we will never be able to get away from that.”

28. “We might as well candidly recognize that [no matter how many rules we lay down], our having a fair trial depends to the highest degree upon the sense of fairness, the good faith, and the will-to-be-fair of the trial judge…”.