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CHAP. 8: IMPEACHMENT. P. JANICKE 2008. 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. NON-SPECIFIC METHODS.

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chap 8 impeachment

CHAP. 8: IMPEACHMENT

P. JANICKE

2008

definition and methods
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

non specific methods
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

the 3 non specific methods
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

slide5
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

slide6
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

specific impeachment
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

the four methods of specific impeachment
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

slide9
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

slide10
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

using extrinsic evidence to impeach
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

when can you go extrinsic
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

slide13
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

slide14
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

who can be impeached
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

slide16
CAN IMPEACH AN IMPEACHING WITNESS
  • A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED

Chap. 8 -- Impeachment

seriatim impeachment methods
SERIATIM IMPEACHMENT METHODS
  • ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME
  • MOST COMMONLY DONE WHEN FIRST METHOD FAILS

Chap. 8 -- Impeachment

example
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

example1
EXAMPLE
  • IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS)
  • THEN WITH FELONY CONVICTIONS
  • THEN WITH PRIOR INCONSISTENT STATEMENTS

Chap. 8 -- Impeachment

some surprising things
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

slide21
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