CHAP 8 IMPEACHMENT of WITNESSES Prof JANICKE 2018

CHAP. 8: IMPEACHMENT of WITNESSES Prof. JANICKE 2018

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 2018 Chap. 8 -- Impeachment 2

MEANING OF “EXTRINSIC EVIDENCE” • DOING THE IMPEACHMENT BY – CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR – INTRODUCING A DOCUMENT TO DO SO 2018 Chap. 8 -- Impeachment 3

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 2018 Chap. 8 -- Impeachment 4

THE 3 GENERAL ATTACKS 1. PROVE IMPAIRED GENERAL COMPETENCY 2018 – UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE – EXTRINSIC EVIDENCE IS ALLOWED Chap. 8 -- Impeachment 5

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) 2018 Chap. 8 -- Impeachment 6

• TEXAS: DOES NOT ALLOW IMPEACHMENT BY DISHONEST NON -CONVICTION ACTS, EVEN ON CROSS-EXAM 2018 Chap. 8 -- Impeachment 7

3. 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 2018 Chap. 8 -- Impeachment 8

– 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 2018 Chap. 8 -- Impeachment 9

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 2018 Chap. 8 -- Impeachment 10

MODES OF SPECIFIC IMPEACHMENT 4. IMPAIRED SPECIFIC COMPETENCY, i. e. , ON THE OCCASION IN QUESTION EXAMPLES: – DRUNK – NIGHT-TIME – LOOKING THE OTHER WAY EXTRINSIC EVIDENCE IS ALLOWED 2018 Chap. 8 -- Impeachment 11

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 • 2018 THEREFORE, CAN’T USE THIS MODE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH Chap. 8 -- Impeachment 12

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) 2018 Chap. 8 -- Impeachment 13

6. BIAS OR PREJUDICE • EXAMPLES: – – • 2018 FRIEND OR RELATIVE OF A PARTY ANIMOSITY BUSINESS OBJECTIVE IF ONE SIDE WINS SIMILARLY SITUATED NEIGHBORS EXTRINSIC EVIDENCE IS ALLOWED Chap. 8 -- Impeachment 14

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) 2018 Chap. 8 -- Impeachment 15

PROBLEMS/CASES • • • Abel 8 A Manske Hit the Deck History of Lying Faker Thug 2018 Chap. 8 -- Impeachment 16

• Luce • 8 E 2018 Chap. 8 -- Impeachment 17

WHO CAN BE IMPEACHED ? • ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED • ON CROSS, THE FEDERAL SCOPE-OFTHE-DIRECT RULE DOES NOT BLOCK IMPEACHMENT [NOTE R. 611(b)’s SPECIFIC EXCEPTION FOR CREDIBILITY QUESTIONS] • CAN IMPEACH YOUR OWN WITNESS 2018 Chap. 8 -- Impeachment 18

• CAN IMPEACHING WITNESS • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED – BUT A HEARSAY DECLARANT CAN BE IMPEACHED 2018 Chap. 8 -- Impeachment 19

SERIATIM IMPEACHMENT METHODS • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS >> 2018 Chap. 8 -- Impeachment 20

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] • MY VIEW: PROSECUTOR CAN NOW SWITCH TO CONVICTION-OF-A-CRIMEMODE: CONVICTION FOR FILING FALSE RETURN [R. 609] [IMPEACHMENT SUCCEEDS] 2018 Chap. 8 -- Impeachment 21

• NOTE: SOME FED. COURTS DISAGREE: – THEY HOLD THAT R 609 IS THE SOLE METHOD FOR IMPEACHING WHERE THERE HAS BEEN A CONVICTION – [UNCLEAR WHAT THEY WOULD DO IF IT WERE > 10 YEARS AGO] 2018 Chap. 8 -- Impeachment 22

EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) [SUCCEEDS] • THEN WITH PRIOR INCONSISTENT STATEMENTS [ALSO SUCCEEDS] 2018 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. 2018 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 2018 Chap. 8 -- Impeachment 25

PROBLEMS/CASES • • • Webster Harris Jenkins Havens 8 G Medical Therapy Sciences 2018 Chap. 8 -- Impeachment 26