1. CHAP. 8: IMPEACHMENT of WITNESSES
Prof. JANICKE
2019

2. DEFINITION AND METHODS
IMPEACHMENT IS THE PROCESS OF ATTEMPTING TO WEAKEN THE PERCEIVED CREDIBILITY OF A WITNESS
MOST COMMONLY DONE ON CROSS
AT LEAST SIX METHODS OF IMPEACHMENT, EACH WITH ITS OWN RULES LIMITING REACH
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3. SOME ARE IN THE PRINTED RULES; OTHERS ARE COMMON LAW
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4. MEANING OF “EXTRINSIC EVIDENCE”
IMPEACHING OTHER THAN BY QUESTIONING THE TARGET WITNESS
DOING THE IMPEACHMENT BY
CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR
INTRODUCING A DOCUMENT TO IMPEACH A WITNESS
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5. THE 3 GENERAL MODES OF IMPEACHMENT
3 FORMS OF ATTACK ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS
A WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE
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6. THE 4 GENERAL ATTACKS PROVE IMPAIRED GENERAL COMPETENCY
UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE
EXTRINSIC EVIDENCE IS ALLOWED, IF NEEDED
COMMON LAW
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7. 2. POOR CHARACTER FOR VERACITY
a. BAD OPINION OR REPUTATION FOR TRUTHFULNESS – EXTRINSIC WITNESS TESTIMONY IS ALLOWED, BUT NO SPECIFICS
b. PRIOR DISHONEST NON-CONVICTION ACTS, ESTABLISHED ON CROSS. (HENCE EXTRINSIC EVIDENCE IS NOT ALLOWED FOR THIS)
R. 608
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8. NOTE:
TEXAS RULES DO NOT ALLOW IMPEACHMENT BY DISHONEST NON-CONVICTION ACTS, EVEN ON CROSS-EXAM
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9. EXAMPLE ASKING A WITNESS ABOUT: LYING IN GRADE-SCHOOL, TO A FRIEND
ALLOWED ON CROSS IN A FEDERAL CASE
NEVER ALLOWED IN A TEXAS STATE CASE
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10. CONVICTION OF A CRIME AS IMPEACHMENT R. 609
FOR ANY CRIME INVOLVING DISHONESTY (EVEN MISDEMEANORS)
NO WEIGHING PROBATIVE VALUE OR PREJUDICE REQUIRED
FOR A NON-DISHONESTY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE
TEXAS rule: Adds crimes (misdemeanors) involving “moral turpitude”:
The term "crimes involving moral turpitude," which may be used for impeachment purposes, encompasses crimes involving:
• dishonesty, fraud, deceit, misrepresentation, or deliberate violence
• matters of personal morality
• conduct committed knowingly contrary to justice, honesty, principle, or good morals
• baseness, vileness, or depravity
• conduct immoral in itself, regardless of whether it is punishable by law, in that the doing of the act itself, and not its prohibition by statute, fixes the moral turpitude
• immoral conduct that is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community.1
Criminal acts that involve intentional dishonesty for purpose of personal gain are acts involving moral turpitude.2 Swindling, cheating, theft, including misdemeanor theft, and the making of a false affidavit for the purpose of securing monetary benefits to which the claimant is not entitled, are such offenses.3 However, the misdemeanor offense of practicing medicine without a license is not an offense involving moral turpitude,4 nor is possession of narcotic paraphernalia,5 interference with the duties of a public servant,6 possession of marijuana,7 criminally negligent homicide,8 or driving while intoxicated.9
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11. TIME LIMIT ON USING CONVICTIONS R. 609
USUALLY A TEN-YEAR LIMIT IN EITHER CASE
FOR NON-DISHONESTY FELONIES
FOR DISHONESTY MISDEMEANORS
RUNS FROM DATE OF RELEASE FROM PRISON (IF ANY)
CAN BE EXPANDED IF HIGHLY PROBATIVE (RARE)
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12. PROCEDURE
IF THE WITNESS ADMITS THE CONVICTION, NO EXTRINSIC EVIDENCE CAN BE ADDED TO PROVE THE CONVICTION
IF THE WITNESS DOES NOT ADMIT, CAN USE CONVICTION RECORD (NO ADD’L WITNESS) –
CRIME; DATE OF CONVICTION; SENTENCE. NO DETAILS
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13. FURTHER RESTRICTIONS ON USING CONVICTIONS
CAN’T USE IF THERE IS
(i) A REHABILITATION CERTIF., OR
(ii) A PARDON BASED ON FINDING OF INNOCENCE
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14. HOWEVER: CAN USE JUVENILE CONVICTION FOR SIMILAR OFFENSE
CAN USE IF CONVICTION IS ON APPEAL
PENDING APPEAL WILL BE NOTED
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15. 4th GENERAL MODE 4. GENERAL BIAS e.g., HATES ALL “YANKEES”
e.g., THINKS ALL PROFESSORS ARE CRIMINALS
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16. THE SPECIFIC MODES
3 FORMS OF ATTACK ON THE WITNESS’S CREDIBILITY IN THIS PARTICULAR CASE
IN GENERAL THE WITNESS MIGHT HAVE GOOD VERACITY, BUT NOT FOR HER PRESENT TESTIMONY
COMMON LAW
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17. MODES OF SPECIFIC IMPEACHMENT
IMPAIRED SPECIFIC COMPETENCY, i.e., ON THE OCCASION IN QUESTION
EXAMPLES:
DRUNK
NIGHT-TIME
LOOKING THE OTHER WAY
EXTRINSIC EVIDENCE IS ALLOWED
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18. 6. PRIOR INCONSISTENT STATEMENT OF THE WITNESS R. 613
OK, BUT MUST AFFORD TARGET WIT. A CHANCE DURING TRIAL TO EXPLAIN THE INCONSISTENCY
THEREFORE, CAN’T USE THIS MODE IF WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH
USUALLY EASY TO INTRODUCE; CAN GO EXTRINSIC IF NECESSARY [DOCUMENT OR IMPEACHING WITNESS]
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19. TEXAS RULE HAS ADD’L CONSTRAINTS:
MUST FIRST INFORM WITNESS ABOUT CIRCUMSTANCES OF HIS PRIOR STATEMENT
IF WITNESS UNEQUIVOCALLY ADMITS THE PRIOR STATEMENT, NO EXTRINSIC EVIDENCE ALLOWED
TX. R. 613(a)
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20. 7. SPECIFIC BIAS EXTRINSIC EVIDENCE IS ALLOWED
GOOD VERACITY IN GENERAL, BUT NOT HERE:
EXAMPLES:
IN LOVE WITH THE PLAINTIFF
HATES THE DEFENDANT
SIMILARLY SITUATED NEIGHBORS – NOISE, ETC.
EXTRINSIC EVIDENCE IS ALLOWED
COMMON LAW
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21. TEXAS RULE ON NO-AMBUSH FOUNDATION FOR BIAS/PREJUDICE ATTACK
SIMILAR TO NO-AMBUSH REQMTS. FOR PRIOR INCONSISTENT STMT.
MUST FIRST TELL WITNESS THE CIRCUMSTANCES THAT TEND TO SHOW BIAS/PREJUDICE
NO EXTRINSIC EV. IF WIT. CONCEDES BIAS/PREJ
TX. R. 613(b)
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22. PROBLEMS/CASES Abel 8A Manske 8B 8C 8D >> 2019
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23. Luce 8E
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24. WHO CAN BE IMPEACHED ?
ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED
ON CROSS, THE FEDERAL SCOPE-OF-THE-DIRECT RULE DOES NOT BLOCK IMPEACHMENT QUESTIONS
CAN IMPEACH YOUR OWN WITNESS, WITHIN LIMITS [NO GAMES]
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25. CAN IMPEACH AN IMPEACHING WITNESS
A NON-TESTIFYING OPPOSING PARTY GENERALLY CANNOT BE IMPEACHED
BUT A HEARSAY DECLARANT CAN BE IMPEACHED
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26. SERIATIM IMPEACHMENT METHODS
MAY BE ABLE TO USE THEM ALL, SUBJECT TO DISCRETION ON WASTE OF TIME
MOST COMMONLY DONE WHEN FIRST METHOD FAILS
>>
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27. EXAMPLE #1 :
D. TESTIFIES
ON CROSS, PROSECUTOR TRIES TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN [R. 608(b)]
D. DENIES FILING ANY FALSE RETURN [THIS IMPEACHMENT ATTEMPT FAILS]
MY VIEW: PROSECUTOR CAN NOW SWITCH TO CONVICTION-OF-A-CRIME MODE: CONVICTION FOR FILING FALSE RETURN [R. 609] [IMPEACHMENT SUCCEEDS]
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28. NOTE: SOME FED. COURTS SAY WHERE THERE HAS BEEN A CONVICTION, R 609 IS THE SOLE METHOD FOR IMPEACHING BASED ON THAT CONDUCT
SAVES TIME
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29. EXAMPLE #2
IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (ALLOWED ON CROSS) [SUCCEEDS]
THEN WITH PRIOR INCONSISTENT STATEMENTS IN THIS CASE [ALSO SUCCEEDS]
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30. SOME SURPRISING THINGS
NON-MIRANDIZED STATEMENT CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT!
PRE-MIRANDA-WARNING SILENCE CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT!
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31. ILLEGALLY SEIZED ITEMS CAN BE USED TO IMPEACH A TESTIFYING DEFENDANT
E.G.: ILLEGALLY SEIZED SHIRT WITH NIFTY CUT-OUTS
E.G.: ILLEGALLY SEIZED COCAINE
THESE IMPEACHMENT TOOLS ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF THE TRIAL SYSTEM
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32. PROBLEMS/CASES
Webster
Harris 8F
Havens
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33. SOME CLOSE CALLS D TESTIFIES IN A CRIMINAL CASE: NARCOTICS PEDDLING
DENIES EVERYTHING
ON CROSS, CAN YOU ASK: “HAVE YOU EVER SOLD NARCOTICS BEFORE THIS TIME?” [ASSUME NO CONVICTION]
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