CHAP 8 IMPEACHMENT P JANICKE 2014 DEFINITION AND

CHAP. 8: IMPEACHMENT P. JANICKE 2014

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 2014 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 2014 Chap. 8 -- Impeachment 3

THE 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 2014 Chap. 8 -- Impeachment 4

THE 3 GENERAL ATTACKS 1. PROVE IMPAIRED GENERAL COMPETENCY 2014 – 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) 2014 Chap. 8 -- Impeachment 6

• TEXAS: DOES NOT ALLOW IMPEACHMENT BY DISHONEST NON -CONVICTION ACTS, EVEN ON CROSS-EXAM 2014 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 2014 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 2014 Chap. 8 -- Impeachment 9

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 HERE 2014 Chap. 8 -- Impeachment 10

MODES OF SPECIFIC IMPEACHMENT 4. PROVE IMPAIRED SPECIFIC COMPETENCY, i. e. , ON THE OCCASION IN QUESTION EXAMPLES: – DRUNK – NIGHT-TIME – LOOKING THE OTHER WAY • EXTRINSIC EVIDENCE IS ALLOWED 2014 Chap. 8 -- Impeachment 11

5. BIAS OR PREJUDICE EXAMPLES: – FRIEND OR RELATIVE OF A PARTY – ANIMOSITY – BUSINESS OBJECTIVE IF ONE SIDE WINS – SIMILARLY SITUATED NEIGHBORS • EXTRINSIC EVIDENCE IS ALLOWED 2014 Chap. 8 -- Impeachment 12

6. PRIOR INCONSISTENT STATEMENT OF A WITNESS – MUST AFFORD TARGET WIT. A CHANCE DURING TRIAL TO EXPLAIN THE INCONSISTENCY • THEREFORE, CAN’T USE THIS MODE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH >> 2014 Chap. 8 -- Impeachment 13

• IF WITNESS UNEQUIVOCALLY ADMITS THE PRIOR STATEMENT, NO EXTRINSIC EVIDENCE ALLOWED • IF DENIED, EXTRINSIC WITNESSES OR DOCUMENTS ARE ALLOWED 2014 Chap. 8 -- Impeachment 14

PROBLEMS/CASES • • Abel 8 A Lipscomb 8 E 2014 Chap. 8 -- Impeachment 15

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 2014 Chap. 8 -- Impeachment 16

• CAN IMPEACHING WITNESS • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED – BUT A HEARSAY DECLARANT CAN BE IMPEACHED 2014 Chap. 8 -- Impeachment 17

SERIATIM IMPEACHMENT METHODS • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS >> 2014 Chap. 8 -- Impeachment 18

EXAMPLE #1 : • D. TESTIFIES – ON CROSS, PROSECUTOR TRIES TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN – D. DENIES FILING FALSE RETURN • PROSECUTOR CAN NOW SWITCH TO CONVICTION-OF-A-CRIME-MODE (CONVICTION FOR FILING FALSE RETURN) 2014 Chap. 8 -- Impeachment 19

EXAMPLE #2 • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) • THEN WITH FELONY CONVICTIONS • THEN WITH PRIOR INCONSISTENT STATEMENTS 2014 Chap. 8 -- Impeachment 20

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. 2014 Chap. 8 -- Impeachment 21

• 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 TOOLS ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF TRIAL SYSTEM 2014 Chap. 8 -- Impeachment 22

PROBLEMS/CASES • • • Webster Harris Jenkins Havens 8 G 2014 Chap. 8 -- Impeachment 23