CHAP 8 IMPEACHMENT P JANICKE 2008 Chap 8

CHAP. 8: IMPEACHMENT P. JANICKE 2008 Chap. 8 -- Impeachment

DEFINITION AND METHODS • IMPEACHMENT IS THE PROCESS OF ATTEMPTING TO WEAKEN THE PERCEIVED CREDIBILITY OF A WITNESS • MOST COMMONLY DONE ON CROSS • SIX METHODS OF IMPEACHMENT, EACH WITH ITS OWN LIMITING RULES 2008 Chap. 8 -- Impeachment 2

NON-SPECIFIC METHODS • ARE ATTACKS ON THE WITNESS’S BELIEVABILITY DUE TO ACROSSTHE-BOARD WEAKNESS AS A WITNESS • ARE NOT TAILORED TO THE PARTICULAR EVIDENCE GIVEN ON DIRECT IN THIS CASE 2008 Chap. 8 -- Impeachment 3

THE 3 NON-SPECIFIC METHODS 1. PROVE IMPAIRED GENERAL COMPETENCY – – UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL BIAS OR PREJUDICE TOWARD ONE PARTY 2. PROVE POOR CHARACTER FOR VERACITY a. BAD REPUTATION FOR TRUTHFULNESS b. PRIOR DISHONEST ACTS (ESTABLISHED ON CROSS) – NO CONVICTION NECESSARY 2008 Chap. 8 -- Impeachment 4

3. 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 2008 Chap. 8 -- Impeachment 5

– CANNOT USE EXTRINSIC EVIDENCE TO PROVE THE CONVICTION IF WIT. ADMITS TO IT – IF WIT. DOES NOT ADMIT, CAN USE RECORD ONLY (NO ADD’L WITNESS) 2008 Chap. 8 -- Impeachment 6

SPECIFIC IMPEACHMENT • ATTACKS ON THE CREDIBILITY OF THE WITNESS’S DIRECT TESTIMONY IN THIS CASE ONLY • IN GENERAL SHE MIGHT BE A GREAT WITNESS – GOOD CHARACTER FOR VERACITY – GOOD ABILITY TO OBSERVE AND RELATE 2008 Chap. 8 -- Impeachment 7

THE FOUR METHODS OF SPECIFIC IMPEACHMENT 4. PROVE IMPAIRED SPECIFIC COMPETENCY, i. e. , ON THE OCCASION IN QUESTION – DRUNK – NIGHT-TIME – LOOKING THE OTHER WAY 2008 Chap. 8 -- Impeachment 8

5. BIAS OR PREJUDICE RE. THIS CASE – – E. G. : BUSINESS OBJECTIVE IF ONE SIDE WINS E. G. : SIMILARLY SITUATED NEIGHBORS 6. PRIOR INCONSISTENT STATEMENT OF THIS WITNESS – – PROVED BY TESTIMONY OF TARGET WITNESS, OR BY TESTIMONY OF ANOTHER WITNESS MUST AFFORD TARGET WIT. A CHANCE TO EXPLAIN DURING TRIAL • 2008 THEREFORE, CAN’T USE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH Chap. 8 -- Impeachment 9

7. CONTRADICTION OF DIRECT BY TARGET WITNESS ON CROSS – ON MINOR POINTS, YOU ARE “STUCK WITH HER ANSWER” GIVEN ON CROSS – POINTS ARE SAID TO BE “MERELY COLLATERAL” – ON POINTS THAT MAKE UP ESSENTIAL ELEMENTS OF THE CASE, CAN CALL OTHER WITNESSES, AS ALWAYS 2008 Chap. 8 -- Impeachment 10

USING “EXTRINSIC” EVIDENCE TO IMPEACH • MEANING: ANY EVIDENCE OTHER THAN THE TESTIMONY OF THE TARGET WITNESS ON CROSS – CALLING AN IMPEACHING WITNESS IS “GOING EXTRINSIC” – INTRODUCING AN IMPEACHING DOCUMENT IS “GOING EXTRINSIC” 2008 Chap. 8 -- Impeachment 11

WHEN CAN YOU GO EXTRINSIC? • DEPENDS ON WHICH METHOD OF IMPEACHMENT IS INVOLVED • WE HAVE SEEN THAT YOU CAN’T GO EXTRINSIC IN THE CONTRADICTION-ON-MINORPOINTS METHOD (#7) 2008 Chap. 8 -- Impeachment 12

• CROSS-EXAMINER ALSO CAN’T GO EXTRINSIC AGAINST THE TARGET WITNESS RE. PRIOR DISHONEST ACTS FOR WHICH THERE WAS NO CONVICTION (#2 b) R 608(b) – MUST DO IT ON CROSS-EXAM or GIVE UP 2008 Chap. 8 -- Impeachment 13

• WITH THE CRIMINAL CONVICTION METHOD (#3), YOU CAN GO EXTRINSIC TO EXTENT OF INTRODUCING CONVICTION RECORD • IN ALL OTHER METHODS OF IMPEACHMENT, CALLING AN EXTRINSIC WITNESS OR USING A DOCUMENT IS O. K. 2008 Chap. 8 -- Impeachment 14

WHO CAN BE IMPEACHED ? • ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED • CAN IMPEACH YOUR OWN WITNESS 2008 Chap. 8 -- Impeachment 15

• CAN IMPEACHING WITNESS • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED 2008 Chap. 8 -- Impeachment 16

SERIATIM IMPEACHMENT METHODS • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS 2008 Chap. 8 -- Impeachment 17

EXAMPLE : • D. TESTIFIES • ON CROSS, PROSECUTOR USES METHOD #2 b – PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN • D. DENIES/ADMITS FILING FALSE RETURN • PROSECUTOR CAN NOW SWITCH TO METHOD (#3), CONVICTION OF A CRIME (FILING FALSE RETURN) 2008 Chap. 8 -- Impeachment 18

EXAMPLE • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) • THEN WITH FELONY CONVICTIONS • THEN WITH PRIOR INCONSISTENT STATEMENTS 2008 Chap. 8 -- Impeachment 19

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. 2008 Chap. 8 -- Impeachment 20

• 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 PROTECT INTEGRITY OF TRIAL SYSTEM 2008 Chap. 8 -- Impeachment 21

2008 Chap. 8 -- Impeachment 22