CHAP 8 IMPEACHMENT P JANICKE 2011 Chap 8

CHAP. 8: IMPEACHMENT P. JANICKE 2011 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 • AT LEAST SIX METHODS OF IMPEACHMENT, EACH WITH ITS OWN RULES LIMITING REACH 2011 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 2011 Chap. 8 -- Impeachment 3

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 2011 Chap. 8 -- Impeachment 4

1. PROVE IMPAIRED GENERAL COMPETENCY 2011 – 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 EVIDENCE ALLOWED, BUT NO SPECIFICS b. PRIOR DISHONEST NON-CONVICTION ACTS, ESTABLISHED ON CROSS. EXTRINSIC EVIDENCE IS NOT ALLOWED 2011 Chap. 8 -- Impeachment 6

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 2011 Chap. 8 -- Impeachment 7

– 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 2011 Chap. 8 -- Impeachment 8

SPECIFIC MODES • ATTACKS ON THE CREDIBILITY OF THE WITNESS IN THIS CASE ONLY • THESE ASSUME THAT IN GENERAL THE WITNESS MIGHT HAVE GOOD VERACITY 2011 Chap. 8 -- Impeachment 9

MODES OF SPECIFIC IMPEACHMENT 4. PROVE IMPAIRED SPECIFIC COMPETENCY, i. e. , ON THE OCCASION IN QUESTION – – 2011 DRUNK NIGHT-TIME LOOKING THE OTHER WAY EXTRINSIC EVIDENCE ALLOWED Chap. 8 -- Impeachment 10

5. 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 2011 Chap. 8 -- Impeachment 11

6. PRIOR INCONSISTENT STATEMENT OF A WITNESS – EXTRINSIC EVIDENCE ALLOWED; BUT --– MUST AFFORD TARGET WIT. A CHANCE DURING TRIAL TO EXPLAIN THE INCONSISTENCY • 2011 THEREFORE, CAN’T USE THIS MODE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH Chap. 8 -- Impeachment 12

WHO CAN BE IMPEACHED ? • ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED • CAN IMPEACH YOUR OWN WITNESS 2011 Chap. 8 -- Impeachment 13

• CAN IMPEACHING WITNESS • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED 2011 Chap. 8 -- Impeachment 14

SERIATIM IMPEACHMENT METHODS • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS 2011 Chap. 8 -- Impeachment 15

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) 2011 Chap. 8 -- Impeachment 16

EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) • THEN WITH FELONY CONVICTIONS • THEN WITH PRIOR INCONSISTENT STATEMENTS 2011 Chap. 8 -- Impeachment 17

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. 2011 Chap. 8 -- Impeachment 18

• 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 2011 Chap. 8 -- Impeachment 19