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IMPEACHMENT AND REHABILITATION

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  1. IMPEACHMENT AND REHABILITATION ARKANSAS LEGAL AID October 17, 2013 by MICHAEL JOHNSON and PAULA CASEY

  2. IMPEACHMENT • BIAS • PRIOR CONVICTION (FRE 609) • PRIOR BAD ACT (FRE 608(b))

  3. IMPEACHMENT • REPUTATION/OPINION: UNTRUTHFULNESS • (FRE 608(a)) • PRIOR INCONSISTENT STATEMENT (FRE 613)

  4. PRIOR INCONSISTENT STATEMENTS • COMMIT • TO CURRENT FACTUAL ASSERTION YOU WANT TO ATTACK • CREDIT • PRIOR STATEMENT • CIRCUMSTANCES OF TAKING • SETTING • REASONS TO TRUST TRUTHFULNESS • CONFRONT • WITH CONTRADICTION

  5. IMPEACHMENT • ALWAYS USE LANGUAGE CONSISTENT WITH YOUR POINT OF VIEW • IRONY IS HARD • SUBTLETY LOST • SACRASM MISSED • e.g., • “It is your statement that…” • “You say…” • “According to you..”

  6. Rehabilitation • Should you do it? • What do you do? • How do you do that?

  7. Rehabilitation--what to do • Return to theme • Clear up confusion • Punish unfairness by opposing counsel • Allow witness to explain

  8. Rehabilitation—how to do it • Scope of examination • Limited to cross examination • If you exceed the limit— • Objection, (or worse) • Re-cross examination!

  9. Rehabilitation—how to do it • Form of Questions • Non-Leading • “Directing” Questions • “You were asked . . .” • “Please explain what you meant by…”

  10. Rehabilitation--Prior Statements • Context within a single statement • Was all of it read? • Context with other statements • Prior consistent statements • Pre-date any motive to fabricate

  11. Rehabilitation—prior statements • “Counsel read to you this portion of your prior statement: ‘[quote]’” • “Please read the remainder of the statement to the jury”