Examining Witnesses

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Examining Witnesses
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Examination of Witnesses
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Scope of Cross Examination

• Matters brought out on direct examination
• Credibility impeachment
• Perception
• Sensory deficiencies (deafness, color blindness)
  that would substantially impair the witness
  ability to perceive the facts to which he
  testifies.
• Temporary conditions (witnesss view was blocked)
  that would substantially impair the witness
  ability to perceive the facts to which he
  testifies
• Memory
• Ability to communicate
• Veracity
• Bias, interest, or hostility
• Prior conduct tending to show bad character for
  truth

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Impeaching Witnesses

• Perception
• Memory
• Communication
• Sincerity

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Impeaching a Witness
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Nonpropensity Forms of Impeachment

• Not governed by FRE 608 or 609, because its not
  propensity evidence.
• External evidence may be used.
• Bias, interest, motive
• Contradiction
• Prior inconsistent statements
• Defects in perception, memory, description

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Propensity Forms of Impeachment

• Bad character for truthfulness
• Reputation or opinion (608 (a))
• Can inquire into specific instances on cross
  (608(b))
• Felonies and crimes of dishonesty
• Generally admissible to show witness character
  for untruthfulness. (609(a))
• If witness is accused, and prior bad act is
  felony, court must find that probative value
  outweighs prejudice. (609(a)(1))
• Exceptions
• More than 10 years since conviction or release
  (609(b))
• Unless probative value substantially outweighs
  prejudice
• Pardon upon finding of rehabilitation or
  innocence (609(c))
• Juvenile adjudications (609(d))
• Unless a criminal case, and
• Witness is not accused, and
• Evidence is necessary for a fair determination of
  guilt or innocence.

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Bad character for truthfulness can be shown by

• reputation
• opinion
• can inquire into specific acts on cross
• felonies and crimes of dishonesty

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Rationale for FRE 609

• Crime of lying ? untruthful when it counts ?
  willing to be untruthful this time ? perjury in
  this case.
• Other felony ? not law-abiding when it counts ?
  willing to be unlawful this time ? perjury in
  this case.

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What is a crime of dishonesty?
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Balancing Prejudice and Probative Value

• impeachment value of the prior crime
• date of the conviction and the witnesss
  subsequent history
• degree of similarity between the past crime and
  any conduct of the witness that is at issue in
  the present litigation
• importance of the witnesss testimony
• centrality of the credibility issue

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Examples
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Impeaching Witnesses

• Perception
• Memory
• Communication
• Sincerity

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Impeaching Witnesses

• Perception
• Memory
• Communication
• Sincerity/Veracity
• Bad character for truthfulness (FRE 608)
• Felonies and bad acts (FRE 609)
• Bias, motive, interest (C/L)

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Additional Methods of Attack

• Direct challenge to witnesss
• Perception Isnt it true there was a
  semi-tractor-trailer blocking your view of the
  accident?
• Memory Isnt it true W suffers from long-term
  memory loss?
• Communication W is unable to describe the scent
  of marijuana.
• Direct challenge to substantive facts asserted by
  Witness.
• W2 testifies the light was green, not red.
• Indirect challenge to witnesss credibility by
  inconsistency on a collateral item
• If W is wrong about one thing, W might be wrong
  about other things.
• Direct challenge to witnesss credibility by
  showing prior inconsistent statements
• Casts doubt on the correctness of both statements.

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Collateral Matter

• Indirect challenge to witnesss credibility by
  showing inconsistency on a collateral item.
• Collateral matter is relevant only to show that
  the W is not credible. It has no independent
  relevance in the case.
• The idea is that if W is wrong about one thing, W
  might be wrong about other things.
• If its a two-bit collateral matter, Rule 403
  balancing will bar extrinsic evidence on the
  collateral matter. We dont care whether W was
  eating a Snickers or an Almond Joy.
• If its a collateral matter that bears
  significantly on Ws credibility, extrinsic
  evidence may be admitted.

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Examples (see p.464)

• W testifies that she saw D cross the center line,
  while changing the radio from a rock station to a
  country station.
• Evidence that P, not D, crossed the center line
• is not collateral, because it goes to an element
  of the claim. Extrinsic evidence is OK.
• Evidence that W was looking in the opposite
  direction
• is not collateral, because it directly challenges
  Ws perception. Extrinsic evidence is OK.
• Evidence that W was changing from a country
  station to a rock station
• is collateral. Furthermore, its two-bit
  collateral matter. Using extrinsic evidence
  would likely violate Rule 403.

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Contd

• W testifies that she was talking with a friend
  and saw D running from the bank carrying a gun
  and a large sack.
• Evidence that W was actually receiving a
  jaywalking citation at the time is probably
  collateral (because it has no relevance
  independent of its impeachment value), but . . .
• It might bear on Ws credibility, b/c it shows
  that W is willing to lie under oath to save face,
• It might indicate that W was distracted at the
  time, if receiving a jaywalking ticket is more
  distracting than talking with a friend,
• It doesnt take much time to introduce the
  extrinsic evidence.
• So a nonfrivolous argument can be made for
  admitting it. Nevertheless, most courts will bar
  extrinsic evidence of the jaywalking citation.

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Prior Inconsistent Statements

• Impeachment use The inconsistency casts doubt
  on both statements.
• Substantive use is only permitted under limited
  circumstances.
• Declarant testifies at the trial or hearing.
• Declarant is subject to cross-examination.
• Prior statement is inconsistent with declarants
  in-court statement.
• Prior statement was given
• Under oath subject to the penalty of perjury
• At a trial, hearing, or other proceeding.

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Analytic issues

• Is the prior inconsistent statement admissible to
  impeach?
• If so, is extrinsic evidence admissible?
• Is the prior inconsistent statement admissible
  for a substantive purpose?
• If not, does the evidence raise issues under Rule
  403?
• Foundation requirements (FRE 613)
• On request, all prior statements must be shown or
  disclosed to opposing counsel.
• Extrinsic evidence of a prior inconsistent
  statement is admissible only if
• W is afforded an opportunity to explain or deny
  it, and
• Opposite party is afforded an opportunity to
  interrogate W.
• Unless its the prior inconsistent statement of a
  party-opponent.

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Examples (see p. 473)

• W testifies she saw a woman running from the
  jewelry store.
• Ws prior inconsistent statement to cop It was
  a man.
• Is it admissible for a substantive purpose?
• W is testifying, subject to cross-examination.
• Prior statement is inconsistent.
• BUT prior statement wasnt given under oath.
• So its not admissible for a substantive purpose.
• The evidence is still admissible to impeach W.
• Note that extrinsic evidence is OK, because the
  matter is not collateral.
• Rule 403 issues?
• Do we trust the jury to use the evidence to infer
  that W isnt credible, but not to infer that the
  robber was a man?
• Foundation issues?
• W must be given an opportunity to explain or deny
  the prior inconsistent statement.

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Contd

• W testifies she saw a woman running from the
  jewelry store.
• Ws prior inconsistent statement in affadavit
  It was a man.
• Is it admissible for a substantive purpose?
• W is testifying, subject to cross-examination.
• Prior statement is inconsistent.
• Prior statement was given under oath.
• BUT it wasnt at a deposition, hearing, trial, or
  other proceeding.
• So its not admissible for a substantive purpose.
• The evidence is still admissible to impeach W.
• Note that extrinsic evidence is OK, because the
  matter is not collateral.
• Rule 403 issues?
• Do we trust the jury to use the evidence to infer
  that W isnt credible, but not to infer that the
  robber was a man?
• Foundation issues?
• W must be given an opportunity to explain or deny
  the prior inconsistent statement.

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Contd

• W testifies she saw a woman running from the
  jewelry store.
• Ws prior inconsistent statement before grand
  jury It was a man.
• Is it admissible for a substantive purpose?
• W is testifying, subject to cross-examination.
• Prior statement is inconsistent.
• Prior statement was given under oath.
• AND it was at a formal proceeding.
• Does it matter that W wasnt subject to
  cross-examination before the grand jury?
• No. Rule 613 doesnt require that.
• So the evidence is admissible for a substantive
  purpose.
• The evidence is still admissible to impeach W,
  too.
• Foundation issues?
• W must be given an opportunity to explain or deny
  the prior inconsistent statement.

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Problem 6

• Civil fraud action. D testifies he warned P
  about investment risks.
• Prior inconsistent statement The deal is good
  as gold.
• Is the prior inconsistent statement admissible to
  impeach?
• If so, is extrinsic evidence admissible?
• Is the prior inconsistent statement admissible
  for a substantive purpose?
• If not, does the evidence raise issues under Rule
  403?
• Foundation requirements (FRE 613)

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Problem 7

• AB prosecution. W testifies that D started the
  fight.
• Prior inconsistent statement V started the
  fight.
• Is the prior inconsistent statement admissible to
  impeach?
• If so, is extrinsic evidence admissible?
• Is the prior inconsistent statement admissible
  for a substantive purpose?
• If not, does the evidence raise issues under Rule
  403?
• Foundation requirements (FRE 613)

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Prior Consistent Statements

• Rehabilitative use The consistency increases
  the speakers credibility.
• Substantive use is only permitted under limited
  circumstances.
• Declarant testifies at the trial or hearing.
• Declarant is subject to cross-examination.
• Prior statement is consistent with declarants
  in-court statement.
• Prior statement is offered to rebut a charge of
• recent fabrication or
• improper influence or motive

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