CHAP. 8: IMPEACHMENT P. JANICKE 2010

DEFINITION AND METHODS IMPEACHMENT IS THE PROCESS OF ATTEMPTING TO WEAKEN THE PERCEIVED CREDIBILITY OF A WITNESS MOST COMMONLY DONE ON CROSS SIX METHODS OF IMPEACHMENT, EACH WITH ITS OWN LIMITING RULES 2010 Chap. 8 -- Impeachment

NON-SPECIFIC METHODS ARE ATTACKS ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS A WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE 2010 Chap. 8 -- Impeachment

THE 3 NON-SPECIFIC METHODS PROVE IMPAIRED GENERAL COMPETENCY UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL BIAS OR PREJUDICE TOWARD PLAINTIFFS OR DEFENDANTS IN GENERAL 2010 Chap. 8 -- Impeachment

2. PROVE POOR CHARACTER FOR VERACITY a. BAD REPUTATION FOR TRUTHFULNESS b. PRIOR DISHONEST ACTS (ESTABLISHED ON CROSS). NO CONVICTION IS NECESSARY 2010 Chap. 8 -- Impeachment

CONVICTION OF A CRIME ANY CRIME INVOLVING DISHONESTY NO WEIGHING PROBATIVE VALUE OR PREJUDICE ANY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE TEN-YEAR LIMIT IN EITHER CASE 2010 Chap. 8 -- Impeachment

IF WIT. DOES NOT ADMIT, CAN USE RECORD ONLY (NO ADD’L WITNESS) CANNOT USE EXTRINSIC EVIDENCE TO PROVE THE CONVICTION IF WIT. ADMITS TO IT IF WIT. DOES NOT ADMIT, CAN USE RECORD ONLY (NO ADD’L WITNESS) 2010 Chap. 8 -- Impeachment

SPECIFIC IMPEACHMENT ATTACKS ON THE CREDIBILITY OF THE WITNESS FOR THIS CASE ONLY [I.E., IN GENERAL SHE MIGHT BE A GREAT WITNESS GOOD CHARACTER FOR VERACITY GOOD ABILITY TO OBSERVE AND RELATE] 2010 Chap. 8 -- Impeachment

THE FOUR METHODS OF SPECIFIC IMPEACHMENT PROVE IMPAIRED SPECIFIC COMPETENCY, i.e., ON THE OCCASION IN QUESTION DRUNK NIGHT-TIME LOOKING THE OTHER WAY 2010 Chap. 8 -- Impeachment

BIAS OR PREJUDICE RE. THIS CASE E.G.: BUSINESS OBJECTIVE IF ONE SIDE WINS E.G.: SIMILARLY SITUATED NEIGHBORS PRIOR INCONSISTENT STATEMENT OF THIS WITNESS PROVED BY TESTIMONY OF THE TARGET WITNESS, OR BY TESTIMONY OF ANOTHER WITNESS MUST AFFORD TARGET WIT. A CHANCE TO EXPLAIN DURING TRIAL THEREFORE, CAN’T USE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH 2010 Chap. 8 -- Impeachment

CONTRADICTION OF DIRECT BY TARGET WITNESS ON CROSS ON MINOR POINTS, YOU ARE “STUCK WITH HER ANSWER” GIVEN ON CROSS – POINTS ARE SAID TO BE “MERELY COLLATERAL” ON POINTS THAT MAKE UP ESSENTIAL ELEMENTS OF THE CASE, CAN CALL OTHER WITNESSES, AS ALWAYS 2010 Chap. 8 -- Impeachment

USING “EXTRINSIC” EVIDENCE TO IMPEACH MEANING: ANY EVIDENCE OTHER THAN THE TESTIMONY OF THE TARGET WITNESS ON CROSS CALLING AN IMPEACHING WITNESS IS “GOING EXTRINSIC” INTRODUCING AN IMPEACHING DOCUMENT IS “GOING EXTRINSIC” 2010 Chap. 8 -- Impeachment

WHEN CAN YOU GO EXTRINSIC? DEPENDS ON WHICH METHOD OF IMPEACHMENT IS INVOLVED WE HAVE SEEN THAT YOU CAN’T GO EXTRINSIC IN THE CONTRADICTION-ON-MINOR-POINTS METHOD (#7) 2010 Chap. 8 -- Impeachment

CROSS-EXAMINER ALSO CAN’T GO EXTRINSIC AGAINST THE TARGET WITNESS RE CROSS-EXAMINER ALSO CAN’T GO EXTRINSIC AGAINST THE TARGET WITNESS RE. PRIOR DISHONEST ACTS FOR WHICH THERE WAS NO CONVICTION (#2b) R 608(b) MUST DO IT ON CROSS-EXAM or GIVE UP 2010 Chap. 8 -- Impeachment

WITH THE CRIMINAL CONVICTION METHOD (#3) OR PRIOR INCONSISTENT STATEMENT METHOD (#6), YOU CAN GO EXTRINSIC TO EXTENT OF INTRODUCING CONVICTION RECORD OR STATEMENT IF TARGET WITNESS DOESN’T ADMIT TO THEM IN ALL OTHER METHODS OF IMPEACHMENT, CALLING AN EXTRINSIC WITNESS OR USING A DOCUMENT IS O.K. 2010 Chap. 8 -- Impeachment

WHO CAN BE IMPEACHED ? ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED CAN IMPEACH YOUR OWN WITNESS 2010 Chap. 8 -- Impeachment

CAN IMPEACH AN IMPEACHING WITNESS A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED 2010 Chap. 8 -- Impeachment

SERIATIM IMPEACHMENT METHODS ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME MOST COMMONLY DONE WHEN FIRST METHOD FAILS 2010 Chap. 8 -- Impeachment

EXAMPLE : D. TESTIFIES ON CROSS, PROSECUTOR USES METHOD #2b – PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN D. DENIES/ADMITS FILING FALSE RETURN PROSECUTOR CAN NOW SWITCH TO METHOD (#3), CONVICTION OF A CRIME (FILING FALSE RETURN) 2010 Chap. 8 -- Impeachment

EXAMPLE IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) THEN WITH FELONY CONVICTIONS THEN WITH PRIOR INCONSISTENT STATEMENTS 2010 Chap. 8 -- Impeachment

SOME SURPRISING THINGS NON-MIRANDIZED STATEMENT CAN BE USED TO IMPEACH A TESTIFYING D. PRE-MIRANDA-WARNING SILENCE CAN BE USED TO IMPEACH A TESTIFYING D. 2010 Chap. 8 -- Impeachment

ILLEGALLY SEIZED ITEMS CAN BE USED TO IMPEACH A TESTIFYING D. E.G.: ILLEGALLY SEIZED SHIRT WITH NIFTY CUT-OUTS E.G.: ILLEGALLY SEIZED COCAINE ALL 3 OF ABOVE ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF TRIAL SYSTEM 2010 Chap. 8 -- Impeachment

2010 Chap. 8 -- Impeachment