CHAP. 8: IMPEACHMENT

1. CHAP. 8: IMPEACHMENT P. JANICKE 2008

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 Chap. 8 -- Impeachment

3. NON-SPECIFIC METHODS • ARE ATTACKS ON THE WITNESS’S BELIEVABILITY DUE TO ACROSS-THE-BOARD WEAKNESS AS A WITNESS • ARE NOT TAILORED TO THE PARTICULAR EVIDENCE GIVEN ON DIRECT IN THIS CASE Chap. 8 -- Impeachment

4. THE 3 NON-SPECIFIC METHODS • PROVE IMPAIRED GENERAL COMPETENCY • UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL • BIAS OR PREJUDICE TOWARD ONE PARTY • PROVE POOR CHARACTER FOR VERACITY a. BAD REPUTATION FOR TRUTHFULNESS b. PRIOR DISHONEST ACTS (ESTABLISHED ON CROSS) – NO CONVICTION NECESSARY Chap. 8 -- Impeachment

5. 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 Chap. 8 -- Impeachment

6. 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) Chap. 8 -- Impeachment

7. SPECIFIC IMPEACHMENT • ATTACKS ON THE CREDIBILITY OF THE WITNESS’S DIRECT TESTIMONY IN THIS CASE ONLY • IN GENERAL SHE MIGHT BE A GREAT WITNESS • GOOD CHARACTER FOR VERACITY • GOOD ABILITY TO OBSERVE AND RELATE Chap. 8 -- Impeachment

8. THE FOUR METHODS OF SPECIFIC IMPEACHMENT • PROVE IMPAIRED SPECIFIC COMPETENCY, i.e., ON THE OCCASION IN QUESTION • DRUNK • NIGHT-TIME • LOOKING THE OTHER WAY Chap. 8 -- Impeachment

9. 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 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 Chap. 8 -- Impeachment

10. 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 Chap. 8 -- Impeachment

11. 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” Chap. 8 -- Impeachment

12. 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) Chap. 8 -- Impeachment

13. 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 Chap. 8 -- Impeachment

14. WITH THE CRIMINAL CONVICTION METHOD (#3), YOU CAN GO EXTRINSIC TO EXTENT OF INTRODUCING CONVICTION RECORD • IN ALL OTHER METHODS OF IMPEACHMENT, CALLING AN EXTRINSIC WITNESS OR USING A DOCUMENT IS O.K. Chap. 8 -- Impeachment

15. WHO CAN BE IMPEACHED ? • ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED • CAN IMPEACH YOUR OWN WITNESS Chap. 8 -- Impeachment

16. CAN IMPEACH AN IMPEACHING WITNESS • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED Chap. 8 -- Impeachment

17. SERIATIM IMPEACHMENT METHODS • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME • MOST COMMONLY DONE WHEN FIRST METHOD FAILS Chap. 8 -- Impeachment

18. 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) Chap. 8 -- Impeachment

19. EXAMPLE • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS) • THEN WITH FELONY CONVICTIONS • THEN WITH PRIOR INCONSISTENT STATEMENTS Chap. 8 -- Impeachment

20. 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. Chap. 8 -- Impeachment

21. 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 PROTECT INTEGRITY OF TRIAL SYSTEM Chap. 8 -- Impeachment

22. Chap. 8 -- Impeachment