CHAP 8 IMPEACHMENT of WITNESSES Prof JANICKE 2020

CHAP. 8: IMPEACHMENT of WITNESSES Prof. JANICKE 2020

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 EXIST, EACH WITH ITS OWN RULES (COMMON LAW OR WRITTEN) 2020 Chap. 8 -- Impeachment 2

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 2020 Chap. 8 -- Impeachment 3

3 GENERAL MODES OF IMPEACHMENT • 3 FORMS OF ATTACK ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS 2020 Chap. 8 -- Impeachment 4

1. IMPAIRED GENERAL COMPETENCY E. G. , PROVE LIMITED VISION E. G. , PROVE LIMITED ABILITY TO REMEMBER 2020 Chap. 8 -- Impeachment 5

2. POOR CHARACTER FOR VERACITY assigned RULE 608 2020 Chap. 8 -- Impeachment 6

2. POOR CHARACTER FOR VERACITY BAD OPINION OR REPUTATION FOR TRUTHFULNESS IS ALLOWED EXTRINSIC WITNESS TESTIMONY IS USED; BUT NO SPECIFICS ARE ALLOWED 2020 Chap. 8 -- Impeachment 7

MORE ABOUT POOR CHARACTER FOR VERACITY • CAN ATTEMPT THIS ON CROSS OF THE TARGET WITNESS; AND GET SPECIFIC • BUT IF DENIED, YOU ARE STUCK WITH THE ANSWER • NO REBUTTAL EXTRINSIC EVIDENCE IS ALLOWED 2020 Chap. 8 -- Impeachment 8

EXAMPLES • ON CROSS, ASKING A WITNESS ABOUT: LYING IN GRADE-SCHOOL, TO A FRIEND • ON CROSS, ASKING ABOUT LYING TO A PARENT 2020 Chap. 8 -- Impeachment 9

3. CONVICTION FOR CERTAIN CRIMES ASSIGNED: RULE 609 2020 Chap. 8 -- Impeachment 10

3. CONVICTION OF A CRIME AS IMPEACHMENT IS ALLOWED IF: – IT WAS FOR A CRIME INVOLVING DISHONESTY (MISDEMEANOR OR FELONY) • NO WEIGHING PROBATIVE VALUE vs PREJUDICE – FOR OTHER FELONIES, SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE 2020 Chap. 8 -- Impeachment 11

TIME LIMIT ON USING CONVICTIONS • USUALLY A TEN-YEAR LIMIT FOR EITHER OF THE ALLOWABLE TYPES 2020 Chap. 8 -- Impeachment 12

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 – • CRIME; DATE OF CONVICTION; SENTENCE. NO DETAILS 2020 Chap. 8 -- Impeachment 13

FURTHER RESTRICTIONS ON USING CONVICTIONS TO IMPEACH • CAN’T USE IF THERE IS – (i) A REHABILITATION CERTIF. , OR – (ii) A PARDON BASED ON FINDING OF INNOCENCE 2020 Chap. 8 -- Impeachment 14

THE SPECIFIC MODES OF IMPEACHMENT • 3 FORMS OF ATTACK ON A WITNESS’S CREDIBILITY FOR THIS PARTICULAR CASE 2020 Chap. 8 -- Impeachment 15

MODES OF SPECIFIC IMPEACHMENT 4. IMPAIRED SPECIFIC COMPETENCY, i. e. , ON THE OCCASION IN QUESTION • EXTRINSIC EVIDENCE IS ALLOWED 2020 Chap. 8 -- Impeachment 16

5. PRIOR INCONSISTENT STATEMENT assigned: RULE 613 2020 Chap. 8 -- Impeachment 17

6. BIAS/PREJUDICE • EXAMPLES: – IN LOVE WITH THE PLAINTIFF – HATES THE DEFENDANT – IS P’s NEIGHBOR, SIMILARLY SITUATED – HATES ALL TALL PEOPLE – IS P’s BUSINESS PARTNER • 2020 IF DENIED, EXTRINSIC EVIDENCE IS ALLOWED Chap. 8 -- Impeachment 18

PROBLEMS/CASES • • • Abel 8 A Manske 8 B 8 C 8 D >> 2020 Chap. 8 -- Impeachment 19

• Luce • 8 E 2020 Chap. 8 -- Impeachment 20

SOME SURPRISING THINGS 2020 Chap. 8 -- Impeachment 21

MIRANDA DOESN’T APPLY • NON-MIRANDIZED STATEMENT CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT! 2020 Chap. 8 -- Impeachment 22

SILENCE AS IMPEACHABLE? • TRICKY AREA • IF MIRANDIZED, SILENCE CANNOT BE USED, EVEN TO IMPEACH • IF NOT MIRANDIZED, SILENCE CAN BE USED TO IMPEACH! 2020 Chap. 8 -- Impeachment 23

4 TH AMENDMENT? • ILLEGALLY SEIZED ITEMS CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT 2020 Chap. 8 -- Impeachment 24

PROBLEMS/CASES • • Webster Harris 8 F Havens 2020 Chap. 8 -- Impeachment 25

RELIGION assigned: RULE 610 2020 Chap. 8 -- Impeachment 26

SETTLEMENT PROTECTION ASSIGNED: recall RULE 408(a) 2020 Chap. 8 -- Impeachment 27