Impeachment by attack on character for truthfulness 608(a) opinion and reputation evidence 608(b) specific acts 609 -- prior convictions 1
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 0% 0% True False 2
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. 3
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. 4
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. 5
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 0% 0% Admissible Inadmissible 6
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? 1. Yes 2. No 0% 0% Yes No 7
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 0% 0% Yes No 8
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. 1. Admissible 2. Inadmissible 3. Admissible in part. 0% 0% 0% Admissible Inadmissible Admissible i... 9
HIDDEN SLIDE Hypo. Plaintiff sues defendant for employment discrimination. After plaintiff has testified, defendant calls a witness who testifies that, as CFO of the corporation, the witness worked side by side with plaintiff for 10 years and has examined the plaintiff s expense accounts, and that in his opinion the plaintiff has an extremely bad character for truthfulness. Objection! 1. Admissible 2. Inadmissible 3. Partly admissible and partly inadmissible 0% 0% 0% Admissible Inadmissible Partly admissi... 10
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? 1. Admissible 2. Inadmissible 3. Admissible in part. 0% 0% 0% dmissible dmissible sible in... 11
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. 12
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 -- 1. Rule 609 2. Rule 608(b). 3. Both of the above. 0% 0% 0% Rule 609 Rule 608(b). Both of the a... 13
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. the conviction for ca... 0% 0% 0% 0% the arrest for attack.. the conviction for p... None of the above.... 14
Question 1, p.510 (cross-examination about false claim to have Master s degree). Permissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 15
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 16
Q-2, p. 510 (refreshing memory about prior falsehood). Permissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 17
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 18
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 19
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 56% 41% 4% Yes No It depends 20
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? 21
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 71% 19% 10% 0% Yes No It depends 22
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 42% 33% 25% Yes No It depends 23
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? 24
Hypo. Your opponent puts in an out-of-court statement that is admissible under an exception to the hearsay rule. You have extrinsic evidence that the hearsay declarant was convicted of fraud. Is your evidence admissible? (See Rules 609(a)(2) and 806). 1. Yes 2. No 3. It depends 76% 24% 0% Yes No It depends 25
HIDDEN SLIDE Hypo. In a civil case, W testifies for P in an automobile accident case. On cross-examination, W is asked whether she falsely claimed a fictional person as a dependent on her most recent tax return. The alleged misconduct did not result in conviction and has nothing to do with the auto accident case. In the discretion of the trial judge, the question is Reference: CEC sec. 787, p. 1227. 1. Permissible in federal court, but not in California state court 2. Permissible in California, but not in federal court 3. Permissible in either. 4. Not permissible in either Permissible in federa... 0% 0% 0% 0% Permissible in Califor... Permissible in either. Not permissible in ei... 26
The end 27
HIDDEN SLIDE. THE SAADA CASE WAS NOT ASSIGNED IN Hypo. On cross-examination of a witness, is it permissible to impeach the witness by asking him whether the lied on a job application? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 28
HIDDEN SLIDEHypo. Your opponent puts in an out-of-court statement under a hearsay exception. You have extrinsic evidence that the declarant lied on a job application (no conviction resulted). Under Saada, is your evidence admissible? 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 29
NOTE: THE SAADA CASE WAS NOT ASSIGNED IN FALL, 2009 United States v. Saada, p. 478 United States Court of Appeals for the Third Circuit, 2000 Held, extrinsic evidence of the untruthful conduct of a hearsay declarant is not admissible, even if the declarant is not available for questioning. Rule 806 does not modify the ban on extrinsic evidence set forth in Rule 608(b). 30
HIDDEN SLIDE Hypo. Your opponent puts in an out-ofcourt statement under a hearsay exception. Would you be permitted to ask the witness sponsoring the statement about dishonest conduct by the out-of declarant? Reference: p. 481. 1. Yes 2. No 3. It depends 0% 0% 0% Yes No It depends 31
Hypo.. In a civil case, W testifies for P in an automobile accident case. On cross-examination, W is asked whether she falsely claimed a fictional person as a dependent on her most recent tax return. The alleged misconduct did not result in conviction and has nothing to do with the auto accident case. In the discretion of the trial judge, the question is Reference: CEC sec. 787, p. 1227. 1. Permissible in federal court, but not in California state court 2. Permissible in California, but not in federal court 3. Permissible in either. 4. Not permissible in either Permissible i... 0% 0% 0% 0% Permissible i... Permissible... Not permissi... 32
HIDDEN SLIDE Hypo. In a civil case, W testifies for P in an automobile accident case. On cross-examination, W is asked whether she falsely claimed a fictional person as a dependent on her most recent tax return. The alleged misconduct did not result in conviction and has nothing to do with the auto accident case. In the discretion of the trial judge, the question is References: CEC sec. 787, p. 1227; Art. 1, sec. 28, p. 121. 1. Permissible in federal court, but not in California state court 2. Permissible in California, but not in federal court. 3. Permissible in either. 4. Not permitted in either. 100% swer text... 33
The end 34