Term
| Is bias collateral or non-collateral. |
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Definition
| Non-collateral; you can prove it up |
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Term
| Is sensory or mental capacity collateral or non-collateral? |
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Definition
| Non- collateral; you can prove it up |
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Term
| Is prejudice collateral or non-collateral? |
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Definition
| Collateral; can't prove it up |
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Term
| What are the 5 main types of impeachment? |
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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 |
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Term
| Will a physical exam be allowed for a non-party witness? |
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Definition
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Term
| Will the court be allowed to pull medical records or order an examination of a party witness for mental illness? |
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Definition
Yes; but never for a minor mental illness
This is very rare |
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Term
| When can out of court consistent statements be used? |
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Definition
| To rebut a charge of improper motive to testify |
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Term
| When may out of court conduct and statements be used in order to impeach on bias? |
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Definition
| If there's evidence of bias (conduct) and statements are allowed as long as the witness is provided the opportunity to explain |
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Term
What happens if a plea deal is not disclosed an admitted?
When should it be brought up and by who? |
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Definition
It's reversible error.
Prosecutor should bring up on direct |
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Term
| What happens if D is denied cross-exam on bias? |
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Definition
| Violation of his confrontation and due process rights |
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Term
| P has a prior conviction of shop lifting in which he served 9 months in jail, may he be impeached on this? |
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Definition
No-
It's a misdeameanor and it does not involve dishonesty or false-statement |
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Term
| Is prior convictions by Crimen falsi crimes collateral or non-collateral? |
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Definition
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Term
| When a witness takes the stand they put what in issue? |
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Definition
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Term
| Is mental capacity relevant? If so, what does it bear on veracity, capacity or credibility? |
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Definition
| Always relevant; bears on credibility and maybe capacity |
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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? |
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Definition
First 2 would be allowed
3-5 would not be allowed |
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Term
| When a witness takes the stand, they subject themselves to being impeached on character for what? |
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Definition
1) Truth and veracity
2) Pertinent character traits the party raises voluntarily |
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Term
| Can W raise his own truthful character if it has not been attacked? |
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Definition
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Term
| In using character for impeachment, does the character trait have to be pertinent to the crime charged? |
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Definition
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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? |
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Definition
| No, they only have to know the reputation in a relevant setting. |
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Term
| May an expert witness be a character witness used to impeach on truthfulness? |
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Definition
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Term
| When can impeachment for character be proved by specific instances? |
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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 |
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Term
| Is use of character for impeachment by specific instances collateral or non collateral? |
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Definition
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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? |
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Definition
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Term
| May you impeach a witness with any prior conviction? |
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Definition
| No; the conviction must bear on untruthfulness; be responsive only; be less than 10 years old |
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Term
| Can you impeach a witness with a prior conviction if the sentence didn't require jail time? |
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Definition
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Term
| Can you impeach a witness with a prior conviction of a nolo contendre plea? |
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Definition
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Term
| Can you impeach a witness with a conviction of a Alford Plea? |
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Definition
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Term
| May you impeach a witness with a conviction that is older than 10 years? |
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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. |
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Term
| In order to impeach a witness by using a prior conviction do you have to provide notice? |
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Definition
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Term
| What are 3 types of non-admissible convictions to impeach a witness? |
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Definition
1) Finding of rehabilitation +no subsequent felony
2) Finding of innocence
3) Juvenile adjudications (generally) |
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Term
| If a juvenile is tried as an adult can evidence of his prior convictions be used to impeach him? |
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Definition
| Yes, subject to judicial discretion - if the court determines admissibility of the evidence is necessary for fair determination of guilt or innocence. |
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Term
| When may courts allow the use of a prior juvenile adjudication? |
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Definition
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Term
| If the conviction is a misdeameanor crimen falsi, may a witness be impeached with it? |
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Definition
| Yes; misdeameanor or felony |
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Term
| What is a Crimen Falsi crime? |
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Definition
| Where dishonesty is an element of the crime |
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Term
| What are 8 examples of crimen falsi crimes? |
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Definition
| 1) perjury 2) false statement 3) criminal fraud 4) embezzlement 5) false pretense 6) Bribery 7) forgery 8) filing false police report |
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Term
| Is theft a crimen falsi crime? |
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Definition
| It can go either way, it depends on the circumstances. |
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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? |
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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 |
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Term
| In what type of case can a prior conviction of crimen falsi crime be used, and when during the trial? |
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Definition
| Criminal or civil; direct or cross |
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Term
| May you go into detail about the prior conviction of crimen falsi crime when impeaching a witness? |
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Definition
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Term
| May you impeach a criminal defendant with a prior conviction of crimen falsi crime? |
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Definition
| Yes - it applies to all witnesses |
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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? |
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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 |
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Term
| What is the difference in using prior convictions of non-crimen falsi crimes for impeaching a witness vs. impeaching the accused? |
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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. |
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Term
| Do the gorden factors apply to using prior convictions for other crimes for impeaching a witness or the accused? |
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Definition
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Term
| What are the 6 Gordon Factors? |
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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 |
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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? |
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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 |
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Term
| Is the federal "catch" 22 rule followed by most states or the 9th circuit? |
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Definition
| No; they consider challenges regardless of proffer and testimony of D |
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Term
| In order to impeach a witness with a prior inconsistent statement, may the statement be oral? |
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Definition
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Term
| In order to impeach a witness with a prior inconsistent statement, does the declarant have to testify? |
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Definition
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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? |
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Definition
| yes; opportunity to cross is required and no; the statement can't apply to conduct |
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Term
T or F
In order to impeach a witness with a prior inconsistent statement the statement must be shown to the witness |
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Definition
| False; it has to be shown to opposing counsel on request |
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Term
| What are the 3 uses of impeaching a witness with a prior inconsistent statement that are non-collateral |
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Definition
1) If used for bias
2) if it goes to a material issue
3) if it was made in a proceeding under oath |
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Term
| What is the foundation required in order to impeach a witness with a prior inconsistent statement? |
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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 |
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Term
| What balancing test is a prior inconsistent statement used for impeachment subject to? |
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Definition
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Term
| When may an otherwise inadmissible Miranda-barred statement be allowed to impeach a witness with a prior inconsistent statement? |
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Definition
| A voluntary miranda-barred statement can be used to impeach |
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Term
| Are involuntary Miranda-barred statements allowed to impeach a witness? |
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Definition
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Term
| Are statements made during a plea/bargaining/settlement, under grant of immunity allowed to impeach a witness? |
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Definition
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Term
| May you impeach a witness with POST- arrest POST-Miranda silence? |
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Definition
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Term
| May you impeach a witness with pre-Miranda silence? |
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Definition
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Term
| Can illegally seized evidence be used to impeach a statement? |
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Definition
| Yes; only if it contradicts a statement made by D in DIRECT |
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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? |
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Definition
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Term
| Is contradiction used to impeach a witness in the FRE |
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Definition
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Term
| What is a contradiction for impeachent purposes? |
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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 |
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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? |
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Definition
| Collateral; can't prove it up |
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Term
| When is a contradiction non-collateral? |
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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 |
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Term
| Is impeachment by a contradiction evidence allowed if D has not opened the door? |
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Definition
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Term
| May extrinsic evidence be used if it's offered to impeach by contradiction? |
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Definition
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Term
| May inadmissible evidence be used if offer to impeach by contradiction? |
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Definition
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Term
| What is the only way religious beliefs or opinions may be admissible? |
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Definition
| If used to prove bias - (membership in small group) |
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Term
| Is evidence of religious belief admissible for credibility to impeach a witness? |
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Definition
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Term
| When is evidence of W's good character allowed? |
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Definition
| Only after it's been attacked |
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Term
| May evidence of W's good character be allowed in response to an attack by impeachment for contradiction? |
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Definition
| NO; only bias, prior convictions, payments |
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Term
| How may W's credibility be repaired? |
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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 |
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Term
| When can a prior consistent statement be used to repair the credibility of a witness? |
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Definition
| 1) Can only use after W's credibility is attacked by a prior inconsistent statement alleging fabrication based on improper influence or motive |
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Term
| Under the FRE must a prior consistent statement predate a motive to fabricate in order to be admissible? |
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Definition
| Yes; if it's a pre-motive statement it may be used substantively |
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Term
| In California must a prior consistent statement predate a motive to fabricate in order to be admissible? |
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Definition
| No; consistent statement does not have to be pre-motive |
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