1. CHAP. 8: IMPEACHMENT P. JANICKE 2014

2. Chap. 8 -- Impeachment2 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

3. 2014Chap. 8 -- Impeachment3 MEANING OF “EXTRINSIC EVIDENCE” DOING THE IMPEACHMENT BY –CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR –INTRODUCING A DOCUMENT TO DO SO

4. 2014Chap. 8 -- Impeachment4 THE GENERAL MODES 3 FORMS OF ATTACK ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE

5. 2014Chap. 8 -- Impeachment5 THE 3 GENERAL ATTACKS 1.PROVE IMPAIRED GENERAL COMPETENCY –UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE –EXTRINSIC EVIDENCE IS ALLOWED

6. 2014Chap. 8 -- Impeachment6 2. POOR CHARACTER FOR VERACITY a. BAD 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)

7. TEXAS: DOES NOT ALLOW IMPEACHMENT BY DISHONEST NON-CONVICTION ACTS, EVEN ON CROSS-EXAM 2014Chap. 8 -- Impeachment7

8. 2014Chap. 8 -- Impeachment8 3.CONVICTION OF A CRIME –ANY CRIME INVOLVING DISHONESTY NO WEIGHING PROBATIVE VALUE OR PREJUDICE REQUIRED –ANY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE –TEN-YEAR LIMIT IN EITHER CASE

9. 2014Chap. 8 -- Impeachment9 –IF THE WITNESS ADMITS THE CONVICTION, CANNOT USE EXTRINSIC EVIDENCE TO PROVE THE CONVICTION –IF THE WITNESS DOES NOT ADMIT, CAN USE RECORD ONLY (NO ADD’L WITNESS) – CRIME; DATE OF CONVICTION; SENTENCE. NO DETAILS

10. 2014Chap. 8 -- Impeachment10 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 HERE

11. 2014Chap. 8 -- Impeachment11 MODES OF SPECIFIC IMPEACHMENT 4.PROVE IMPAIRED SPECIFIC COMPETENCY, i.e., ON THE OCCASION IN QUESTION EXAMPLES: –DRUNK –NIGHT-TIME –LOOKING THE OTHER WAY EXTRINSIC EVIDENCE IS ALLOWED

12. 2014Chap. 8 -- Impeachment12 5.BIAS OR PREJUDICE EXAMPLES: –FRIEND OR RELATIVE OF A PARTY –ANIMOSITY –BUSINESS OBJECTIVE IF ONE SIDE WINS –SIMILARLY SITUATED NEIGHBORS EXTRINSIC EVIDENCE IS ALLOWED

13. 2014Chap. 8 -- Impeachment13 6. PRIOR INCONSISTENT STATEMENT OF A WITNESS –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 >>

14. IF WITNESS UNEQUIVOCALLY ADMITS THE PRIOR STATEMENT, NO EXTRINSIC EVIDENCE ALLOWED IF DENIED, EXTRINSIC WITNESSES OR DOCUMENTS ARE ALLOWED 2014Chap. 8 -- Impeachment14

15. PROBLEMS/CASES Abel 8A Lipscomb 8E 2014Chap. 8 -- Impeachment15

16. 2014Chap. 8 -- Impeachment16 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 [NOTE R. 611(b)’s SPECIFIC EXCEPTION FOR CREDIBILITY QUESTIONS] CAN IMPEACH YOUR OWN WITNESS

17. 2014Chap. 8 -- Impeachment17 CAN IMPEACH AN IMPEACHING WITNESS A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED –BUT A HEARSAY DECLARANT CAN BE IMPEACHED

18. 2014Chap. 8 -- Impeachment18 SERIATIM IMPEACHMENT METHODS ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME MOST COMMONLY DONE WHEN FIRST METHOD FAILS >>

19. 2014Chap. 8 -- Impeachment19 EXAMPLE #1 : D. TESTIFIES –ON CROSS, PROSECUTOR TRIES TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN –D. DENIES FILING FALSE RETURN PROSECUTOR CAN NOW SWITCH TO CONVICTION-OF-A-CRIME-MODE (CONVICTION FOR FILING FALSE RETURN)

20. 2014Chap. 8 -- Impeachment20 EXAMPLE #2 IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) THEN WITH FELONY CONVICTIONS THEN WITH PRIOR INCONSISTENT STATEMENTS

21. 2014Chap. 8 -- Impeachment21 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 D.

22. 2014Chap. 8 -- Impeachment22 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 TOOLS ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF TRIAL SYSTEM

23. PROBLEMS/CASES Webster Harris Jenkins Havens 8G 2014Chap. 8 -- Impeachment23