CHAP. 8: IMPEACHMENT

1. CHAP. 8: IMPEACHMENT P. JANICKE 2010

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 GENERAL MODES • ARE ATTACKS ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS • I.E., A WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE Chap. 8 -- Impeachment

5. 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 EVIDENCE ALLOWED, BUT NO SPECIFICS b. PRIOR DISHONEST NON-CONVICTION ACTS, ESTABLISHED ON CROSS. EXTRINSIC EVIDENCE IS NOT ALLOWED Chap. 8 -- Impeachment

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

8. IF THE WITNESS ADMITS TO IT, 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

9. SPECIFIC MODES • ATTACKS ON THE CREDIBILITY OF THE WITNESS IN THIS CASE ONLY • THESE ASSUME THAT IN GENERAL THE WITNESS MIGHT HAVE GOOD VERACITY Chap. 8 -- Impeachment

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

11. BIAS OR PREJUDICE • FRIEND OR RELATIVE OF A PARTY • E.G.: BUSINESS OBJECTIVE IF ONE SIDE WINS • E.G.: SIMILARLY SITUATED NEIGHBORS • EXTRINSIC EVIDENCE ALLOWED Chap. 8 -- Impeachment

12. 6. PRIOR INCONSISTENT STATEMENT OF A WITNESS • EXTRINSIC EVIDENCE ALLOWED; 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. WHO CAN BE IMPEACHED ? • ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED • CAN IMPEACH YOUR OWN WITNESS Chap. 8 -- Impeachment

14. CAN IMPEACH AN IMPEACHING WITNESS • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED Chap. 8 -- Impeachment

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

16. EXAMPLE #1 : • D. TESTIFIES • ON CROSS, PROSECUTOR TRIES TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN • D. DENIES/ADMITS FILING FALSE RETURN • PROSECUTOR CAN NOW SWITCH TO CONVICTION OF A CRIME MODE (FILING FALSE RETURN) Chap. 8 -- Impeachment

17. EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) • THEN WITH FELONY CONVICTIONS • THEN WITH PRIOR INCONSISTENT STATEMENTS Chap. 8 -- Impeachment

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

19. ILLEGALLY SEIZED ITEMS CAN BE USED TO IMPEACH A TESTIFYING D. • E.G.: ILLEGALLY SEIZED SHIRT WITH NIFTY CUT-OUTS • E.G.: ILLEGALLY SEIZED COCAINE • ALL 3 OF ABOVE ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF TRIAL SYSTEM Chap. 8 -- Impeachment