CHAP 8 IMPEACHMENT of WITNESSES Prof JANICKE 2019

CHAP. 8: IMPEACHMENT of WITNESSES Prof. JANICKE 2019

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 2019 Chap. 8 -- Impeachment 2

• SOME ARE IN THE PRINTED RULES; OTHERS ARE COMMON LAW 2019 Chap. 8 -- Impeachment 3

MEANING OF “EXTRINSIC EVIDENCE” • IMPEACHING OTHER THAN BY QUESTIONING THE TARGET WITNESS • DOING THE IMPEACHMENT BY – CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR – INTRODUCING A DOCUMENT TO IMPEACH A WITNESS 2019 Chap. 8 -- Impeachment 4

THE 3 GENERAL MODES OF IMPEACHMENT • 3 FORMS OF ATTACK ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS • A WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE 2019 Chap. 8 -- Impeachment 5

THE 4 GENERAL ATTACKS 1. PROVE IMPAIRED GENERAL COMPETENCY – UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE – EXTRINSIC EVIDENCE IS ALLOWED, IF NEEDED 2019 COMMON LAW Chap. 8 -- Impeachment 6

2. POOR CHARACTER FOR VERACITY a. BAD OPINION OR 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 FOR THIS) R. 608 2019 Chap. 8 -- Impeachment 7

NOTE: • TEXAS RULES DO NOT ALLOW IMPEACHMENT BY DISHONEST NON -CONVICTION ACTS, EVEN ON CROSS-EXAM 2019 Chap. 8 -- Impeachment 8

EXAMPLE • ASKING A WITNESS ABOUT: LYING IN GRADE-SCHOOL, TO A FRIEND – ALLOWED ON CROSS IN A FEDERAL CASE – NEVER ALLOWED IN A TEXAS STATE CASE 2019 Chap. 8 -- Impeachment 9

3. CONVICTION OF A CRIME AS IMPEACHMENT R. 609 – FOR ANY CRIME INVOLVING DISHONESTY (EVEN MISDEMEANORS) • NO WEIGHING PROBATIVE VALUE OR PREJUDICE REQUIRED – FOR A NON-DISHONESTY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICEChap. 8 -- Impeachment 2019 10

TIME LIMIT ON USING CONVICTIONS R. 609 • USUALLY A TEN-YEAR LIMIT IN EITHER CASE – FOR NON-DISHONESTY FELONIES – FOR DISHONESTY MISDEMEANORS • RUNS FROM DATE OF RELEASE FROM PRISON (IF ANY) • CAN BE EXPANDED IF HIGHLY PROBATIVE (RARE) 2019 Chap. 8 -- Impeachment 11

PROCEDURE – IF THE WITNESS ADMITS THE CONVICTION, NO EXTRINSIC EVIDENCE CAN BE ADDED TO PROVE THE CONVICTION – IF THE WITNESS DOES NOT ADMIT, CAN USE CONVICTION RECORD (NO ADD’L WITNESS) – • CRIME; DATE OF CONVICTION; SENTENCE. NO DETAILS 2019 Chap. 8 -- Impeachment 12

FURTHER RESTRICTIONS ON USING CONVICTIONS • CAN’T USE IF THERE IS – (i) A REHABILITATION CERTIF. , OR – (ii) A PARDON BASED ON FINDING OF INNOCENCE 2019 Chap. 8 -- Impeachment 13

HOWEVER: • CAN USE JUVENILE CONVICTION FOR SIMILAR OFFENSE • CAN USE IF CONVICTION IS ON APPEAL – PENDING APPEAL WILL BE NOTED 2019 Chap. 8 -- Impeachment 14

4 th GENERAL MODE • 4. GENERAL BIAS – e. g. , HATES ALL “YANKEES” – e. g. , THINKS ALL PROFESSORS ARE CRIMINALS 2019 Chap. 8 -- Impeachment 15

THE 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 COMMON LAW 2019 Chap. 8 -- Impeachment 16

MODES OF SPECIFIC IMPEACHMENT 5. IMPAIRED SPECIFIC COMPETENCY, i. e. , ON THE OCCASION IN QUESTION EXAMPLES: – DRUNK – NIGHT-TIME – LOOKING THE OTHER WAY EXTRINSIC EVIDENCE IS ALLOWED 2019 Chap. 8 -- Impeachment 17

6. PRIOR INCONSISTENT STATEMENT OF THE WITNESS R. 613 – OK, BUT MUST AFFORD TARGET WIT. A CHANCE DURING TRIAL TO EXPLAIN THE INCONSISTENCY • • 2019 THEREFORE, CAN’T USE THIS MODE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH USUALLY EASY TO INTRODUCE; CAN GO EXTRINSIC IF NECESSARY [DOCUMENT OR IMPEACHING WITNESS] Chap. 8 -- Impeachment 18

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) 2019 Chap. 8 -- Impeachment 19

7. SPECIFIC BIAS • GOOD VERACITY IN GENERAL, BUT NOT HERE: • EXAMPLES: – – – • 2019 IN LOVE WITH THE PLAINTIFF HATES THE DEFENDANT SIMILARLY SITUATED NEIGHBORS – NOISE, ETC. EXTRINSIC EVIDENCE IS ALLOWED COMMON LAW Chap. 8 -- Impeachment 20

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) 2019 Chap. 8 -- Impeachment 21

PROBLEMS/CASES • • • Abel 8 A Manske 8 B 8 C 8 D >> 2019 Chap. 8 -- Impeachment 22

• Luce • 8 E 2019 Chap. 8 -- Impeachment 23

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 QUESTIONS • CAN IMPEACH YOUR OWN WITNESS, WITHIN LIMITS [NO GAMES] 2019 Chap. 8 -- Impeachment 24

• CAN IMPEACHING WITNESS • A NON-TESTIFYING OPPOSING PARTY GENERALLY CANNOT BE IMPEACHED – BUT A HEARSAY DECLARANT CAN BE IMPEACHED 2019 Chap. 8 -- Impeachment 25

SERIATIM IMPEACHMENT METHODS • MAY BE ABLE TO USE THEM ALL, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS >> 2019 Chap. 8 -- Impeachment 26

EXAMPLE #1 : • D. TESTIFIES – ON CROSS, PROSECUTOR TRIES TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN [R. 608(b)] – D. DENIES FILING ANY FALSE RETURN [THIS IMPEACHMENT ATTEMPT FAILS] • MY VIEW: PROSECUTOR CAN NOW SWITCH TO CONVICTION-OF-A-CRIME MODE: CONVICTION FOR FILING FALSE RETURN [R. 609] [IMPEACHMENT SUCCEEDS] 2019 Chap. 8 -- Impeachment 27

• NOTE: SOME FED. COURTS SAY WHERE THERE HAS BEEN A CONVICTION, R 609 IS THE SOLE METHOD FOR IMPEACHING BASED ON THAT CONDUCT • SAVES TIME 2019 Chap. 8 -- Impeachment 28

EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (ALLOWED ON CROSS) [SUCCEEDS] • THEN WITH PRIOR INCONSISTENT STATEMENTS IN THIS CASE [ALSO SUCCEEDS] 2019 Chap. 8 -- Impeachment 29

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 DEFENDANT! 2019 Chap. 8 -- Impeachment 30

• 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 THE TRIAL SYSTEM 2019 Chap. 8 -- Impeachment 31

PROBLEMS/CASES • • Webster Harris 8 F Havens 2019 Chap. 8 -- Impeachment 32

SOME CLOSE CALLS • D TESTIFIES IN A CRIMINAL CASE: NARCOTICS PEDDLING • DENIES EVERYTHING • ON CROSS, CAN YOU ASK: “HAVE YOU EVER SOLD NARCOTICS BEFORE THIS TIME? ” [ASSUME NO CONVICTION] 2019 Chap. 8 -- Impeachment 33