Methods of impeachment Contradiction Inconsistent statement Bad character for truthfulness Bias Lack of capacity or opportunity to observe 1
Oswalt rule: Extrinsic evidence is not admissible to impeach by contradiction on a collateral fact. A fact is collateral if it could not have been shown in evidence for any purpose independently of contradiction. There s a question whether this rule still applies categorically after the adoption of the Federal Rules of Evidence, as opposed to just being a guideline for the exercise of discretion under Rule 403. 2
Question. Rule 608(b) codifies the Oswalt rule prohibiting use of extrinsic evidence to impeach by contradiction on a collateral matter. 1. True 2. False 92% 8% True False 3
Question 3, p. 497: Could the fact have been proven with extrinsic evidence? 92% 1. Yes 2. No 3. It depends 0% 8% Yes No It depends 4
Question 4, p. 497: Could the fact have been proven with extrinsic evidence? 1. Yes 2. No 3. It depends 81% 8% 12% Yes No It depends 5
United States v. Copelin, p. 497 U.S. Court of Appeals, D.C. Circuit, 1993 Charge: Distribution of cocaine. D s testimony on direct: It wasn t me. Another player in the craps game was making drug transactions, and I won the incriminating money from him. Cross, p. 498: Q. You didn t see any actual drugs? A. No, sir. Q. Would you know what they looked like if you saw them? A. Yes. It s advertised on TV.... Q. You see drugs advertised on TV? A. Yes... on news... Q. And that s the only time you ve ever seen drugs? A. Roughly, yes. * * * p. 499: Q. And isn t it true you tested positive for cocaine on June 13th, 1991? A. Yes. [Elsewhere D denies having used cocaine.] 6
Questions about Copelin: (The prosecutor asked, And isn t it true you tested positive for cocaine on June 13 th, 1991? ) Why isn t this character evidence? Does the question violate the Oswalt rule forbidding extrinsic evidence on a collateral matter? Should a limiting instruction have been given? Could a Rule 403 argument be made? Could any other objection have been made? 7
Impeachment by attack on character for truthfulness 608(a) opinion and reputation evidence 608(b) specific acts 609 -- prior convictions 8
Rule 608. Evidence of Character and Conduct of Witness (restyled) (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. 9
Rule 608. Evidence of Character and Conduct of Witness (restyled) (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. 10
Rule 608. Evidence of Character and Conduct of Witness (restyled) (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. 11
Reference: Rule 608(a). Hypo. An informant testifies for the prosecution that he bought drugs from the defendant. There is no crossexamination. The next witness is a police officer who testifies that the informant is extremely truthful and reliable. Objection! 1. Admissible 2. Inadmissible 88% 12% Admissible Inadmissible 12
Same case, except that the defendant cross-examines the informant, eliciting a concession that the informant is cooperating with the prosecution in hopes of obtaining leniency in a pending charge. Does this form of impeachment allow the prosecution to respond by putting in opinion testimony that the informant is extremely truthful? 52% 48% 1. Yes 2. No Yes No 13
Same case, except that on cross-examination, the defendant elicits evidence that the informant was previously convicted of fraud. Does this form of impeachment allow the prosecution to respond by putting in opinion testimony that the informant is extremely truthful? 1. Yes 2. No 92% 8% Yes No 14
Same case. After defendant attacks the informant s character for truthfulness, the prosecution calls a federal agent who testifies that the informant is extremely trustworthy. He supports this opinion by testifying that he has worked with the informant on 10 other drug cases in which the informant reported buying drugs from a suspect and the suspect later confessed, confirming the informant s report. 71% 1. Admissible 2. Inadmissible 3. Admissible in part. 29% 0% Admissible Inadmissible Admissible i... 15
The following testimony by Y is offered to impeach witness X: Q. Do you know Mr. X? A. Yes. Q. How do you know him? A. I supervised him for ten years at Allied Products. Q. What is your position with Allied Products? A. I am the CFO. Q. Who reviews the expense accounts at Allied Products? A. I do. Q. Have you reviewed Mr. X's expense accounts? A. Yes. Q. Do you have an opinion about Mr. X's character for truthfulness? A. Yes. Q. What is that opinion? A. He is extremely untruthful. Is this testimony admissible? 54% 1. Admissible 2. Inadmissible 38% 3. Admissible in part. 8% missible missible ible in... 17
United States v. Owens, p. 501 United States Court of Military Appeals, 1985 Owens criminal history: Conviction possession of marijuana Conviction carrying pistol Arrest assault on second wife. 18
Consider the evidence about Owens conviction for carrying a pistol. Assume the crime was a misdemeanor punishable by a maximum of 6 months. Owens could be questioned about it under -- 82% 1. Rule 609 2. Rule 608(b). 3. Both of the above. 6% 12% Rule 609 Rule 608(b). Both of the a... 19
The court indicated that the trial judge erred in allowing questioning about the following incident: 1. the conviction for carrying a pistol 2. the arrest for attack on his second wife 3. the conviction for possession of marijuana 4. None of the above. Had the trial judge erred, the appellate court would not have affirmed the conviction. 8% 92% the conviction for ca... the arrest for attack.. the conviction for p... 0% 0% None of the above.... 20
Question 1, p.474 (cross-examination about false claim to have Master s degree). Permissible? 1. Yes 2. No 3. It depends 21
Question 1, p.510 (cross-examination about false claim to have Master s degree). Permissible under California law? (See CEC 787, p. 1227.) 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 22
Q-2, p. 510 (refreshing memory about prior falsehood). Permissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 23
Q-3, p. 510. First part: Introducing evidence of a disciplinary committee report finding the witness committed plagiarism. Permissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 24
Q-3, p. 510. Second part: Introducing evidence of disciplinary committee report finding the witness committed plagiarism, after the witness admits that it is authentic. Permissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 25
Q-5, p. 511 Would it be permissible to ask on cross-examination, Isn t it true that you were expelled from graduate school for plagiarism? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 26
United States v. Drake, p. 511 United States Court of Appeals, 10 th Circuit, 1991 Drake was accused of fraud committed by concealing a third party s security interest in collateral. On direct, he claimed ignorance of security interests, saying he was a psychology major, not a business major. On cross, he testified that he had a degree in psychology. He was impeached with questions such as: Q. Also, isn t it a fact that you were actually kicked out of the University of Illinois in 1951? A. No. * * * Q. [I]f the transcript and record from the University of Illinois indicates that you were dismissed from the university at the close of the second semester 1950 to 1951 for violation of terms of your probation and for falsification of facts in a disciplinary investigation, is it your testimony this document is not correct? 27
After the foregoing testimony, would it have been permissible to call the records custodian of the University of Illinois to prove by the business records of the University that Mr. Drake was expelled before getting his degree? 1. Yes 2. No 3. It depends 0% 0% 0% 0% Yes No It depends 28
Suppose that the prosecutor in Drake had started out her cross-examination by asking: Is this document I have in my hand, the record of the University of Illinois saying you were expelled from school, is this an accurate record? Would this question have been permissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 29
The Drake court said that Though the questions asked did not constitute extrinsic evidence, they were arguably improper because they assumed facts not in evidence. p. 514. But the court added that for a variety of reasons (including failure to make a timely objection) this possible impropriety was not reversible error. My problem with the sentence quoted above: The objection assumes a fact not in evidence is basically the same as the objection that the lawyer is testifying. And if the lawyer is testifying, isn t that testimony extrinsic evidence? 30
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