1. CHAP. 8: IMPEACHMENT
P. JANICKE
2010

2. 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 Impeachment

3. 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 Impeachment

4. 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 Impeachment

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

7. 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 Impeachment

8. 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]
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Chap Impeachment

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

10. 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
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11. 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 Impeachment

12. 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”
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13. 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)
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Chap Impeachment

14. 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 Impeachment

15. 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
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16. WHO CAN BE IMPEACHED ?
ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED
CAN IMPEACH YOUR OWN WITNESS
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17. CAN IMPEACH AN IMPEACHING WITNESS
A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED
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18. SERIATIM IMPEACHMENT METHODS
ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME
MOST COMMONLY DONE WHEN FIRST METHOD FAILS
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19. 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)
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20. EXAMPLE IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS)
THEN WITH FELONY CONVICTIONS
THEN WITH PRIOR INCONSISTENT STATEMENTS
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21. 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.
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22. 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
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23. 2010
Chap Impeachment