Impeachment James Harris Sanaz Ossanloo Law 16 Professor Jordan UNITED STATES of America, Plaintiff-Appellee, v. John L. McMURRAY, Defendant-Appellant. Nos. 91-2548, 93-2358. Impeachment James Harris Sanaz Ossanloo Law 16 Professor Jordan 9/21/2018

Impeachment Definition: Attacking a witness’s credibility. FRE. 607. Who May Impeach FRE. 608. Evidence of Character and Conduct of Witness FRE. 609. Impeachment by Evidence of Conviction of a Crime FRE. 610. Religious Beliefs or Opinions FRE. 611.Mode and Order of Interrogations and Presentations FRE. 612 Writing to refresh Memory Conduct so egregious that the public lost faith, 2 us presidents Clinton and Andrew Johnson have been charged but acquitted Nixon resign before. FRE. 607 any party may impeach.. FRE 608. impeachment by opinion or reputation. FRE. 609. crimes punishments greater than 1yr, for establishing elements of proof, admission of dishonesty or false statement. FRE610. evidence by nature of reason would impact credibility. FRE. 611. control of the court,( time harassment, truth) Scope of cross examination (limited to subject) Leading questions. FRE612. make available to other party. 9/21/2018

FRE. Continued. FRE.613. Prior Statements of Witnesses. FRE. 614. Calling and Interrogation of Witnesses by Court. FRE. 615 Exclusion of Witnesses` FRE. 613. exam witness, extrinsic evidence of inconsistent. FRE 614. Ojections may be made… 9/21/2018

FRE 608. Evidence of Character and Conduct of Witness (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness. 9/21/2018

Brief: John L. McMurray appeals his conviction and sentence for conspiracy to distribute cocaine and possession with intent to distribute cocaine. McMurray was initially sentenced as a career offender to 262 months in prison, based in part upon his February 1982 Kansas conviction for conspiracy to distribute cocaine. See U.S.S.G. § 4B1.1. He appealed, but while his appeal was pending, McMurray obtained an order "Nunc Pro Tunc" from the District Court of Shawnee County, Kansas, correcting the prior conviction from "Conspiracy to Distribute Cocaine" to "Conspiracy to Possess Cocaine." Citing this correction, McMurray then applied to the district court to vacate his sentence as a career offender, and The Supreme Court entered an order staying his appeal. Nunc Por Tunc – Now for Then 9/21/2018

The district court[1] ruled that McMurray should not be sentenced as a career offender because his February 1982 conviction, as corrected, is not a "controlled substance offense" within the meaning of U.S.S.G. § 4B1.2(2). The court resentenced McMurray to 92 months in prison, and he filed a second appeal. We lifted the stay of his first appeal, consolidated the two appeals, and received supplemental briefs on the new issues raised in the second appeal. In the interim, The Supreme Court also affirmed the convictions of McMurray's codefendants, 9/21/2018

#1. McMurry argues that he deserves a new trial because the government (prosecution) failed to file a pretrial information disclosing what prior convictions it would rely on in seeking increased punishment. McMurray further argues that the government's failure to provide notice denied him due process because the government unfairly used his incorrect prior conviction to impeach him at trial and then to enhance his sentence. These contentions are without merit. McMurray knew that his prior convictions would be used to impeach his trial testimony; indeed, he sought to soften the impact of that impeachment by admitting the prior convictions during his direct testimony. There are four questions McMurry appeal was based on. FRE 609 and he opened up character under FRE 608 9/21/2018

#2.McMurray next argues that the district court erred in allowing the government's rebuttal witness, Marjorie Carper, to express a negative opinion as to McMurray's truthfulness after he had testified in his own behalf at trial. Fed.R.Evid. 608(a) expressly provides that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion ... [that] refer[s] only to character for truthfulness." Rule 608(a) allows opinion as well as reputation testimony because "witnesses who testify to reputation seem in fact often to be giving their opinions, disguised somewhat misleadingly as reputation. 9/21/2018

#3. McMurray argues that the prosecutor during his closing arguments made a series of improper and cumulatively prejudicial remarks—inaccurately summarizing fingerprint evidence, twice asserting that McMurray lied during his testimony, accusing McMurray of taking advantage of a "gullible, sweet lady" (Marjorie Carper), and referring to McMurray's incorrect prior conviction. there was no trial objection to any of these closing remarks; to the extent any were questionable, 9/21/2018

#4.McMurray argues that the prosecutor improperly used redacted portions of codefendant Miller's confession in cross-examining a defense witness The Supreme Court considered and rejected that contention in affirming the convictions of codefendants Nash and Hampton FRE. 608 (b) probative value of the extrinsic evidence. Select portions of testimony ( removing pertinent portions of testimony) which McMurry thought was relevant. 9/21/2018