1. Attacking Truthfulness of Witness: reputation/opinion/specific acts allowed? EE allowed?
    • Reputation/Opinion Evidence to a witnesses’ character for truthfulness.
    • EE allowed (if relevant to truth/untruth)
    • Specific Instances of Conduct allowed if PV of truth/untruth
    • CANNOT be used to attack on a collateral matter
    • On CX, can ask about specific instances regarding
    • 1. Witness truth/untruth
    • 2. Another W’s truth/untruth about whom this witness is testifying
  2. Impeachment by Contradiction
    • EE inadmissible to impeach witness on a collateral matter.
    • Collateral matter is something that is immaterial to the issues in the case and says nothing about credibility, except just to contradict the witness.
    • Witness testifies he saw the crime while coming home from his grandma. Def cannot call witnesses to testify that the witness really visited his mistress. [but you can still cross on this issue]
  3. Impeachment by Prior Inconsistent Statement:
    • BOTH- If offered ONLY to impeach, prior inconsistent stmt of witness not hearsay, admissible [not offered for its truth, but 403 prejudice problem!]
    • If used to prove truth of facts asserted in the statement:
    • Fed – if PIS was given under oath at another trial or deposition, it’s not hearsay [exemption, admissible for its truth]; otherwise is hearsay and inadmissible. Limiting instr. needed so that jury only considers the statement for impeachment, not for truth of the matter asserted.
    • Cal – hearsay, but admissible under a hearsay exception which allows all inconsistent statements of the witness, whether or not under oath, to be admitted for both purposes
    • EE of PIS inadmissible to impeach on a collateral matter, even if it was given at another trial or deposition [e.g., transcript not admissible]
    • Foundation requirement:
    • EE of PIS admissible only if witness given opportunity to explain/deny [cross-exam, recall witness]. So, if there is no cross exam and the witness has been excused [cannot be recalled], EE of a prior inconsistent statement would be inadmissible.
  4. Impeachment with Bias, Interest, Motive
    • On CX, EE is permitted to show bias interest or motive.
    • Foundation requirement: Only admissible of you give the witness an opportunity to explain or deny.
  5. Impeachment with Prior Convictions for Crime Involving False Statement:
    • FRE – all convictions (felonies and misdemeanors) involving false statement (perjury, forgery, fraud) are admissible – no balancing allowed except for OLD convictions [but could give limiting instr.]
    • Cal – all felonies involving moral turpitude (lying, violence, theft, extreme recklessness, sexual misconduct, but not negligent or unintentional acts) are admissible, but the court MUST balance. All other felonies are inadmissible (Prop. 8 does not change this)
  6. Impeachment with Prior Convictions for Crime Not Involving False Stmt
    • FRE – Felonies not involving false stmt (murder, robbery, rape) may be admissible to impeach, but court MUST balance (exclude if PE >> PV). Misdemeanors that don’t involve false stmts are NOT admissible to impeach.
    • Cal – all felonies involving moral turpitude (lying, violence, theft, extreme recklessness, sexual misconduct, but not for negligent or unintentional acts) are admissible, but the court MUST balance. All other felonies are inadmissible (Prop. 8 does not change this)
  7. Impeachment with Prior Misdemeanor Convictions
    • FRE – all misdemeanors involving false stmts admissible, with no balancing (except for old convictions). All other misdemeanors NOT admissible to impeach
    • Cal – Under CEC, all misdemeanors inadmissible to impeach… but Prop 8 allows admission in a criminal case if the crime involves moral turpitude, but is subject to balancing. (But misdemeanors still inadmissible in all civil cases)
    • If conviction is admissible, EE can be used under both Fed and Cal law.
  8. Convictions more than 10 years old
    • Fed – It is inadmissible unless probative value outweighs unfair prejudice (this is an inverse balancing test skewed in favor of the defendant, burden on non-objecting party)
    • Cal – No specific rules, but California always has the power to balance; age of the conviction is a factor to consider in the balancing (the older the conviction, the lower the PV, burden on obj. party)
    • If the conviction is admissible, EE can be used under Fed and Cal
  9. Can a conviction be proved with extrinsic evidence?
    If the conviction is otherwise admissible under the above rules for impeachment, the conviction may be proved with extrinsic evidence.
  10. Acts of misconduct (not convictions)
    • FRE – admissible in civil or criminal cases only if an act of lying (simply dishonest misconduct is not enough!). EE not admissible to impeach – can only ask witness about it—in good faith—but you’re stuck with the answer
    • Cal – Inadmissible under CEC; Under Prop 8, potentially admissible in criminal cases if act of moral turpitude, but the courts can always balance unfair prejudice against probative value. EE is also permitted.
  11. Impeachment by Reputation and Opinion regarding truthfulness
    Under both Cal and Fed law, you can admit opinion evidence if it has to do with truthfulness. There is no limit on EE. But it must be about the truthfulness of the defendant
Card Set
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