§ 22.01   Introduction [249-50]

 

                        [A]       Stages of Credibility  

 

Credibility may be viewed in three stages: (1) bolstering, (2) impeachment, and (3) rehabilitation.  Impeachment involves attempts to diminish or attack a witness’s credibility.  There are also rules regulating attempts to support credibility.  For example, as a general matter, a witness’s credibility may not bolstered (supported) prior to impeachment.  Moreover, under certain circumstances a witness’s credibility may be rehabilitated (supported) after impeachment.

 

                        [B]       Types of Impeachment  

 

Numerous factors may be considered in evaluating credibility, including a witness’s demeanor while testifying.  There are, however, five principal methods of impeachment:  (1) bias or interest, (2) sensory or mental defects, (3) character for untruthfulness, which includes impeachment by reputation, opinion, prior convictions, and prior untruthful acts; (3) specific contradiction, and (5) prior inconsistent statements (self-contradiction).

 

                        [C]       Extrinsic Evidence (“collateral matters”)

 

Depending on the method, the impeaching evidence may be elicited on cross-examination or through other witnesses – i.e., extrinsic evidence.  The admissibility of extrinsic evidence depends on the type of impeachment – whether the method is considered “collateral.”  The word collateral can be confusing; in this context, it is a conclusory label.

 

§ 22.02   Prohibition on Bolstering  [251-53]

 

Generally, a witness's credibility may not be bolstered or supported with evidence relevant only for that purpose, until after impeachment. There are two prominent examples: (1) a witness's good character for truthfulness is not admissible in the absence of an attack on character; and (2) prior consistent statements are inadmissible before a witness's credibility has been attacked.

 

§ 22.03   Impeachment of Own Witness:  FRE 607  [253-54]

 

At common law, a party could not impeach its own witnesses. This was known as the voucher rule. Rule 607 abolishes the "voucher rule." The abolition of the voucher rule created one problem, which concerns impeachment with prior inconsistent statements: Rule 607 could be employed circumvent the hearsay rule.  

 

§ 22.04   Bias Impeachment  [254-58]

 

Although there is no rule on bias in the Federal Rules, in United States v. Abel, 469 U.S. 45, 51 (1984), the Supreme Court held that impeachment of a witness for bias was proper.  Most jurisdictions require that a foundation be laid on cross-examination before extrinsic evidence of bias is admissible; some courts have indicated that this is the federal rule.  At common law, bias was not considered a “collateral matter,” and thus extrinsic evidence of bias was always admissible.  However, a recent Advisory Committee Note (dealing with another type of impeachment) indicates that Rule 403 should control.

 

§ 22.05   Impeachment:  Sensory & Mental Defects  [258-59]

 

There is no federal rule on this type of impeachment but plenty of cases.  Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach.  Sensory and mental defects often can be effectively disclosed through cross-examination, in which case the admissibility of extrinsic evidence should be regulated by the trial court pursuant to Rule 403.

 

§ 22.06   Untruthful Character Impeachment: Overview  [259]

 

Recall from Chapter 10 that character evidence is generally inadmissible under Rule 404(a). We saw, however, that there are exceptions concerning the accused and victims. A third exception deals with credibility.

 

Here again, there are three possible methods of proof: (1) reputation evidence, (2) opinion evidence, and (3) specific acts. Rule 608(a) sanctions the use of reputation and opinion, which is consistent with character on the merits under Rule 405(a). Specific acts are treated differently in this context. Rule 609 permits impeachment with prior convictions (specific acts) under some circumstances. Rule 608(b) allows impeachment by specific acts that have not resulted in a conviction - under limited circumstances.

 

§ 22.07   Untruthful Character – Reputation & Opinion:  FRE 608(a)  [259-60]

 

Rule 608(a) permits the use of opinion and reputation evidence to show a witness’s untruthful character, including that of the accused.  Before reputation evidence is permitted, a foundation must be laid showing that the character witness is acquainted with the principal witness’s reputation in the community (i.e., where the principal (fact) witness lives, works, or goes to school).  A similar foundation is required before a witness may express an opinion.  This latter inquiry, however, focuses on the character witness’s personal relationship with the principal witness rather than on community contacts.

 

§ 22.08   Untruthful Character – Prior Conviction: FRE 609  [260-69]

 

                        [A]       Overview

 

Rule 609 governs the admissibility of evidence of prior convictions offered for impeachment by showing untruthful character.  The rule applies in both civil and criminal cases, and it applies to the impeachment of any witness, including a criminal defendant.

 

Other theories of admissibility.  If prior-conviction evidence is offered under an impeachment theory other than untruthful character or for reasons other than impeachment, Rule 609 does not apply.  For example, evidence of a conviction may be admissible to show that a witness has received or expects to receive favorable treatment from the prosecution (i.e., bias).  Similarly, evidence of “other crimes” may be admissible under Rule 404(b) as proof of motive, opportunity, intent, and so forth. (Note that Rule 404(b) does not require a conviction.)  Also, if a witness testifies that he has “never committed a crime in my life,” a prior conviction may be offered in rebuttal.  Finally, sometimes a prior conviction is an element of a subsequently tried offense, in which case the prior conviction must be proved. (See Old Chief v. United States, 519 U.S. 172 (1997) (possession of a firearm by a felon).  Here, it is substantive, not impeachment, evidence.

 

                        [B]       Conviction defined; arrests; no-contest pleas

 

Rule 609 applies only to convictions.  Arrests and indictments are not admissible under Rule 609.

 

                        [C]       Rationale for Rule 609

The theory of admissibility underlying Rule 609 corresponds to the theory underlying Rule 608 (reputation, opinion and specific acts):  a person with an untruthful character will likely act in conformity with that character while testifying.

 

                        [D]       Prior “Felony” Convictions of the Accused 

 

Under Rule 609(a)(2), prior convictions involving crimes punishable by death or imprisonment in excess of one year may be admissible against a criminal defendant. (Note that the label "felony" is technically not correct and is used here only as a convenient shorthand label.) Admissibility is not automatic. Only if the probative value of the prior conviction outweighs the unfair prejudice to the defendant is the evidence admissible.

 

Factors.  A number of factors should influence the trial court’s admissibility determination: (1) the nature of prior crime, (2) the age of prior conviction (remoteness); (3) the similarity of the crimes, (4) the need for accused’s testimony, and (5) the centrality of credibility at trial.

 

                        [E]       “Felony” convictions:  Other witnesses

 

Under Rule 609(a)(1), prior “felony” convictions of witnesses other than an accused is permitted – witnesses in civil cases and prosecution and other defense witnesses in criminal cases.  Admissibility is not automatic; it is subject to the trial court’s discretion under Rule 403.

 

                        [F]       Dishonesty & False Statement Crimes (“crimen falsi”)

 

Under Rule 609(a)(2), prior convictions involving crimes of dishonesty or false statement are automatically admissible. The principal problem in applying this rule is determining what crimes involve "dishonesty" or "false statement."

 

                        [G]       Ten-year Limit, FRE 609(b) 

 

Evidence of a prior conviction that satisfies the criteria of Rule 609(a) is nevertheless inadmissible if more than ten years have elapsed since the date of (1) conviction or (2) release from confinement, “whichever is the later date.” 

 

                        [H]       Pardons & Annulments, FRE 609(c)

 

If a pardon, annulment, or equivalent procedure is based on a finding of innocence, the impeachment value of the conviction is naught and Rule 609(c) so provides.  The rule goes beyond this, however, and also excludes where a pardon, annulment, certificate of rehabilitation, or other equivalent procedure is based on a “finding of  rehabilitation,” provided the witness has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year.

 

                        [I]        Juvenile Adjudications, FRE 609(d)

 

Juvenile delinquency adjudications are generally not admissible to impeach.

 

                        [J]        Pendency of Appeal, FRE 609(e)

 

The pendency of an appeal does not affect the admissibility of evidence of a prior conviction.  Evidence that an appeal is pending, however, is admissible and may affect the weight accorded to the prior conviction.

 

                        [K]       Methods of Proof

 

Typically, the prior conviction is elicited on cross-examination.  Generally, only the nature of the crime, time of conviction, and punishment are admissible – aggravating circumstances are not.

 

§ 22.09   Untruthful Character – Prior Acts:  FRE 608(b) [269-71]

 

Under Rule 608(b), specific instances of conduct are admissible only if (1) the conduct reflects untruthful character, (2) its probative value outweighs the danger of unfair prejudice, (3) a good faith basis for the inquiry exists, and (4) the evidence is introduced on cross-examination (and not through extrinsic evidence –  e.g., other witnesses).

 

§ 22.10   Prior Inconsistent Statements: FRE 613  [271-77]

 

 

                        [A]       Hearsay Rule & Inconsistent Statements

 

At common law, prior inconsistent statements were admitted only for impeachment.  The statement was offered to show the inconsistency between the witness’s trial testimony and pretrial statements, rather than to show the truth of the assertions contained in the pretrial statement.  The latter would violate the hearsay rule, which did not recognize an exception for such statements.  In one important respect, the Federal Rules changed this.  Under Rule 801(d)(1)(A), prior inconsistent statements taken under oath, subject to penalty of perjury, and made at certain proceedings are admitted as substantive evidence.  In other words, there are two provisions on prior inconsistent statements:  Rule 613 and Rule 801(d)(1)(A).

 

                        [B]       Inconsistency Requirement  

 

The federal courts have adopted a liberal view of the inconsistency requirement.  A direct contradiction is not required.

 

                        [C]       Foundational Requirements 

 

Rule 613(b) does not require that the witness be afforded an opportunity to explain or deny the statement before extrinsic evidence is introduced, so long as the witness is afforded such an opportunity at some time during the trial.  However, some federal courts recognize a trial court’s authority under Rule 611 to require a foundation.

 

                        [D]       Extrinsic Evidence; “collateral matters” 

 

Even if a proper foundation had been laid on cross-examination, extrinsic evidence of a prior statement was admissible at common law only if it did not involve a “collateral matter.”  The exact definition of what constituted a collateral matter was unclear.  Rule 403 should control.

 

                        [E]       Statements in Opinion Form

 

Rule 701 governs the admissibility of lay opinion testimony.  That provision adopts the modern view, which treats the opinion rule as a rule of preference as to the form of trial testimony.  This view is inconsistent with the application of the opinion rule to extrajudicial statements. 

 

                        [F]       Prior Inconsistent Conduct

 

Rule 613 does not govern impeachment by prior inconsistent conduct.  No federal rule prohibits this type of impeachment, however, and therefore such evidence is admissible if relevant. 

 

                        [G]       Impeachment by Silence

 

In United States v. Hale, 422 U.S. 171 (1975), a robbery defendant was arrested and advised of his Miranda rights.  When asked where he had obtained the $158 in cash that was seized from him, Hale did not respond.  At trial, he testified that the money came from his wife.  On cross-examination, the prosecutor asked whether Hale had informed the police of this when questioned shortly after his arrest.  The Supreme Court did not decide the issue on constitutional grounds.  Instead, the Court held that silence in these circumstances was, as a matter of federal evidence law, not inconsistent with a defendant’s trial testimony and excluded the evidence.  

 

                        [H]       Constitutional Issues

 

The Supreme Court has carved out an impeachment exception to the constitutionally derived exclusionary rule.  See Harris v. New York, 401 U.S. 222 (1971) (statements obtained in violation of the Miranda admissible); Michigan v. Harvey, 494 U.S. 344 (1990) (right to counsel violations); United States v. Havens, 446 U.S. 620 (1980) (Fourth Amendment violations).  However, in Doyle v. Ohio, 426 U.S. 610 (1976), the Court held that the impeachment use of a defendant’s silence after receiving Miranda warnings violated due process. 

 

§ 22.11   Specific Contradiction  [277-78]

 

Although there is no rule on the subject, the Federal Rules permit impeachment by specific contradiction.   A problem arises when the only purpose of witness B’s testimony is to contradict witness A’s testimony, especially if the contradiction is on a minor point.  Because we all make mistakes, the impeachment value is minimal.  This situation gave rise to the so-called “collateral matters” rule.  The same issue arose with prior inconsistent statements (see supra), and the same result should apply here – leave the issue to the trial judge under Rule 403.

 

§ 22.12   Learned Treatise  [278]

 

At common law, impeachment by means of a learned treatise was permitted under certain circumstances when an expert testified.  Unlike the common law, Rule 803(18) recognizes a hearsay exception for this type of impeachment. See § 33.16 infra.

 

§ 22.13   Religious Belief: FRE 610 [278]

 

Rule 610 provides that the “nature” of a witness’s religious beliefs or opinions is not admissible either to impeach or support the witness’s credibility.

 

§ 22.14   Rehabilitation  [278-79]

 

Rehabilitation evidence must directly answer the impeachment evidence.

 

                        [A]       Untruthful Character: FRE 608(a)(2)

 

Once a witness’s character for truthfulness has been attacked, opinion and reputation evidence showing that the witness has a good character for truthfulness is admissible.

 

                        [B]       Prior Consistent Statements

 

Prior consistent statements do not rehabilitate impeachment by prior inconsistent statements because the inconsistency remains. However, in some circumstances a consistent statement may rehabilitate. Rule 801(d)(1)(B) permits the admission of consistent statements "to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." The rule makes these consistent statements substantive evidence, however, rather than evidence merely affecting credibility.