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Impeachment
Evidence Law
75
Law
04/29/2009

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Cards

Term
Is bias collateral or non-collateral.
Definition
Non-collateral; you can prove it up
Term
Is sensory or mental capacity collateral or non-collateral?
Definition
Non- collateral; you can prove it up
Term
Is prejudice collateral or non-collateral?
Definition
Collateral; can't prove it up
Term
What are the 5 main types of impeachment?
Definition
1) By attacking W's general character with past crimes, past bad acts or bad reputation
2) Prior inconsistent statement
3) Bias
4) Sensory or mental defect
5) Other contradicting evidence
Term
Will a physical exam be allowed for a non-party witness?
Definition
No
Term
Will the court be allowed to pull medical records or order an examination of a party witness for mental illness?
Definition
Yes; but never for a minor mental illness

This is very rare
Term
When can out of court consistent statements be used?
Definition
To rebut a charge of improper motive to testify
Term
When may out of court conduct and statements be used in order to impeach on bias?
Definition
If there's evidence of bias (conduct) and statements are allowed as long as the witness is provided the opportunity to explain
Term
What happens if a plea deal is not disclosed an admitted?

When should it be brought up and by who?
Definition
It's reversible error.

Prosecutor should bring up on direct
Term
What happens if D is denied cross-exam on bias?
Definition
Violation of his confrontation and due process rights
Term
P has a prior conviction of shop lifting in which he served 9 months in jail, may he be impeached on this?
Definition
No-
It's a misdeameanor and it does not involve dishonesty or false-statement
Term
Is prior convictions by Crimen falsi crimes collateral or non-collateral?
Definition
Non-collateral
Term
When a witness takes the stand they put what in issue?
Definition
Credibility
Term
Is mental capacity relevant? If so, what does it bear on veracity, capacity or credibility?
Definition
Always relevant; bears on credibility and maybe capacity
Term
Would these questions be allowed in impeaching an expert witness?

1) Continuing employment by the calling party
2) prior testimony for the same party or attorney
3) previous compensation from the same party or attorney on other cases
4) proportion of the experts total income which comes from testifying for a party/type of party
5) degree to which the expert limits his testimony to certain causes or certain sides of issues?
Definition
First 2 would be allowed
3-5 would not be allowed
Term
When a witness takes the stand, they subject themselves to being impeached on character for what?
Definition
1) Truth and veracity
2) Pertinent character traits the party raises voluntarily
Term
Can W raise his own truthful character if it has not been attacked?
Definition
No; it's responsive only
Term
In using character for impeachment, does the character trait have to be pertinent to the crime charged?
Definition
No
Term
In to use a character witness to testify by opinion or reputation, does the witness have to personally know who they're testifying about?
Definition
No, they only have to know the reputation in a relevant setting.
Term
May an expert witness be a character witness used to impeach on truthfulness?
Definition
No
Term
When can impeachment for character be proved by specific instances?
Definition
1) Probative and not too remote in time (stacked 403)
2) On cross only
3) Good faith basis
4) can only concern character for truthfulness/untruthfulness
Term
Is use of character for impeachment by specific instances collateral or non collateral?
Definition
Collateral
Term
Can you use specific instances of violence, adultery, dishonorable discharge, arrests, or use of drugs or alcohol to impeach the character of a witness?
Definition
No
Term
May you impeach a witness with any prior conviction?
Definition
No; the conviction must bear on untruthfulness; be responsive only; be less than 10 years old
Term
Can you impeach a witness with a prior conviction if the sentence didn't require jail time?
Definition
Yes;
Term
Can you impeach a witness with a prior conviction of a nolo contendre plea?
Definition
No
Term
Can you impeach a witness with a conviction of a Alford Plea?
Definition
No
Term
May you impeach a witness with a conviction that is older than 10 years?
Definition
Yes; if and only if the probative value substantially outweighs the prejudicial effect AND it's supported by specific acts and circumstances so that it's fair to admit the evidence in the interest of justice.
Term
In order to impeach a witness by using a prior conviction do you have to provide notice?
Definition
Yes.
Term
What are 3 types of non-admissible convictions to impeach a witness?
Definition
1) Finding of rehabilitation +no subsequent felony
2) Finding of innocence
3) Juvenile adjudications (generally)
Term
If a juvenile is tried as an adult can evidence of his prior convictions be used to impeach him?
Definition
Yes, subject to judicial discretion - if the court determines admissibility of the evidence is necessary for fair determination of guilt or innocence.
Term
When may courts allow the use of a prior juvenile adjudication?
Definition
To prove bias
Term
If the conviction is a misdeameanor crimen falsi, may a witness be impeached with it?
Definition
Yes; misdeameanor or felony
Term
What is a Crimen Falsi crime?
Definition
Where dishonesty is an element of the crime
Term
What are 8 examples of crimen falsi crimes?
Definition
1) perjury 2) false statement 3) criminal fraud 4) embezzlement 5) false pretense 6) Bribery 7) forgery 8) filing false police report
Term
Is theft a crimen falsi crime?
Definition
It can go either way, it depends on the circumstances.
Term
If the judge determines that a prior conviction of a crimen falsi crime is too prejudicial to be admitted to impeach the witness, will the evidence be excluded?
Definition
No; there is no 403 balancing test for a prior conviction of a crimen falsi crime used to impeach the witness. They only way it may be excluded is for 1) time limit 2) effect of a pardon 3) juvenile limits
Term
In what type of case can a prior conviction of crimen falsi crime be used, and when during the trial?
Definition
Criminal or civil; direct or cross
Term
May you go into detail about the prior conviction of crimen falsi crime when impeaching a witness?
Definition
No; only if rebutting
Term
May you impeach a criminal defendant with a prior conviction of crimen falsi crime?
Definition
Yes - it applies to all witnesses
Term
In order to use prior convictions for other (non-crimen falsi) crimes, what are the requirements? When can it be raised; who does it apply to? Is it collateral?
Definition
1) Crime must be a felony
2) Conviction required
3) can be raised on direct or cross
4) Scope: All civil litigants; the gov in criminal cases; witnesses called by D in criminal cases
5) Non-collateral
Term
What is the difference in using prior convictions of non-crimen falsi crimes for impeaching a witness vs. impeaching the accused?
Definition
The prior convictions of the accused come in subject to a modified 403 balancing test; they're excluded if it's equally balanced - the probative value must outweigh it's prejudicial effect.
Term
Do the gorden factors apply to using prior convictions for other crimes for impeaching a witness or the accused?
Definition
The accused
Term
What are the 6 Gordon Factors?
Definition
1) Nature of the conviction (more probative of truthfulness, more likely it's admitted)
2) Recency or remotness
3) Similarity to the charged offense (makes unfair prejudice more likely)
4)D's previous record (pattern of convictions more probative of credibility; D's record clean weighs heavily on not admitting)
5) Importance of credibility issues
6) Importance of getting D's own testimony
Term
What is the catch 22 in federal courts for using prior convictions to impeach his credibility?
2) When does this catch 22 not apply?
Definition
If D loses motion in liminie to forbit the use of prior convictions to impeach his credibility, he must testify or he loses his right to appeal

Devitt says unpersuasive; an offer of proof is enough -

2) It does not apply if it relates to testimony given under grant of immunity because it's involuntary
Term
Is the federal "catch" 22 rule followed by most states or the 9th circuit?
Definition
No; they consider challenges regardless of proffer and testimony of D
Term
In order to impeach a witness with a prior inconsistent statement, may the statement be oral?
Definition
yes
Term
In order to impeach a witness with a prior inconsistent statement, does the declarant have to testify?
Definition
Yes
Term
In order to impeach a witness with a prior inconsistent statement, must an opportunity to cross be provided and can the statement apply to conduct?
Definition
yes; opportunity to cross is required and no; the statement can't apply to conduct
Term
T or F

In order to impeach a witness with a prior inconsistent statement the statement must be shown to the witness
Definition
False; it has to be shown to opposing counsel on request
Term
What are the 3 uses of impeaching a witness with a prior inconsistent statement that are non-collateral
Definition
1) If used for bias
2) if it goes to a material issue
3) if it was made in a proceeding under oath
Term
What is the foundation required in order to impeach a witness with a prior inconsistent statement?
Definition
They must be given an opportunity to explain or deny the statement, either before or after -

Then opposing counsel must be provided an opportunity to cross and examine the document
Term
What balancing test is a prior inconsistent statement used for impeachment subject to?
Definition
403
Term
When may an otherwise inadmissible Miranda-barred statement be allowed to impeach a witness with a prior inconsistent statement?
Definition
A voluntary miranda-barred statement can be used to impeach

Term
Are involuntary Miranda-barred statements allowed to impeach a witness?
Definition
No; never
Term
Are statements made during a plea/bargaining/settlement, under grant of immunity allowed to impeach a witness?
Definition
No
Term
May you impeach a witness with POST- arrest POST-Miranda silence?
Definition
No
Term
May you impeach a witness with pre-Miranda silence?
Definition
yes
Term
Can illegally seized evidence be used to impeach a statement?
Definition
Yes; only if it contradicts a statement made by D in DIRECT
Term
T or F

The hearsay exception rules for prior inconsistent statements to be used substantively are less strict than the Prior inconsistent statment rules for impeachment?
Definition
False
Term
Is contradiction used to impeach a witness in the FRE
Definition
no
Term
What is a contradiction for impeachent purposes?
Definition
Independent evidence that is not a prior statement

1) Between 2 pieces of tangible evidence
2) between 2 witnesses
3) between 1 witness and 1 piece of tangible evidence
Term
If the only relevancy in the use of a contradiction to impeach a witness is to prove that W is wrong, is it collateral or non-collateral?
Definition
Collateral; can't prove it up
Term
When is a contradiction non-collateral?
Definition
It's admitted if it contradicts

+ tends to prove some substantive point OR

+tends to prove some other impeaching point (bias)

+Linchpin exception - the contradiction makes the entire story fall apart
Term
Is impeachment by a contradiction evidence allowed if D has not opened the door?
Definition
No
Term
May extrinsic evidence be used if it's offered to impeach by contradiction?
Definition
Yes
Term
May inadmissible evidence be used if offer to impeach by contradiction?
Definition
Yes
Term
What is the only way religious beliefs or opinions may be admissible?
Definition
If used to prove bias - (membership in small group)
Term
Is evidence of religious belief admissible for credibility to impeach a witness?
Definition
No; never
Term
When is evidence of W's good character allowed?
Definition
Only after it's been attacked
Term
May evidence of W's good character be allowed in response to an attack by impeachment for contradiction?
Definition
NO; only bias, prior convictions, payments
Term
How may W's credibility be repaired?
Definition
A character witness can then (only in response to an attack) testify by opinion or reputation to the truthfulness of the witness; but it must be within the scope of the original attack
Term
When can a prior consistent statement be used to repair the credibility of a witness?
Definition
1) Can only use after W's credibility is attacked by a prior inconsistent statement alleging fabrication based on improper influence or motive
Term
Under the FRE must a prior consistent statement predate a motive to fabricate in order to be admissible?
Definition
Yes; if it's a pre-motive statement it may be used substantively
Term
In California must a prior consistent statement predate a motive to fabricate in order to be admissible?
Definition
No; consistent statement does not have to be pre-motive