Impeachment by Specific Contradiction and Self-Contradiction


(1) Charge: murder in the first degree. M.O.: beating D's father-in-law on November 27 and poisoning him on November 28, with death resulting on December 8. At D's trial the star witness for the prosecution is S, the sister of D's husband. S testifies that at noon on November 27, in D's house, she saw D beat her father over the head with a wrench and that on November 28, in D's house, she saw D take pills from a bottle and give them to her father, who chugged them down. Later at the trial, D produces a witness, J, who testifies that on November 27 he was with D all day hunting, 200 miles away from D's residence. How, if at all, does J's testimony tend to impeach S?

(2) Suppose that J's testimony is that on November 28 S told him that the day before she had seen someone beat her father over the head but that it was not D--it was someone else. How does the impeachment of S in (2) differ from that in (1)?


There are a number of ways to persuade a factfinder that the witness should not be believed. One way is to have a second witness testify to the first witness's bad reputation for truthfulness or give his opinion that the first witness is untruthful. This is an attack on character that can be met with a rehabilitating character witness. Another way is to have a second witness testify in a way that cannot be reconciled with the testimony of the witness being attacked. A third method is to introduce evidence that in the past the witness has made statements contradictory to her testimony at trial. The last two methods may or may not be deemed attacks on the character for truthfulness of the witness. If not, rehabilitation with good reputation evidence will not be allowed.

Problem IV-20(1) is an example of impeachment by specific contradiction. S's character for truthfulness has not been attacked directly. Nonetheless the trial judge could consider the contradiction to be sharp and the issue to be sufficiently important to justify treating J's testimony as an attack on S's character for truthfulness, and allow rehabilitation.

In Problem IV-20(2), S is being impeached by a prior inconsistent statement. In theory such statements are admitted not for their truth, but to show that the witness tells different stories at different times and is, therefore, not to be believed. The prior inconsistent statement is a specific instance of conduct offered to show that the witness's present statements are unreliable. Depending on the facts of the case, this may amount to a general attack on the character of the witness for truthfulness, but it may only go to show that the witness is forgetful or biased in a manner that does not impugn the witness's general character for truthfulness.

Impeachment by prior inconsistent statements of the witness is governed by Rules 613, 801(d)(1)(A), and 804(b)(1) and by the common law Hitchcock rule relating to when an inconsistent statement can be proved by extrinsic proof. (See text at pages 299-300.) Rehabilitation by prior consistent statements is always allowed, but rehabilitation with a reputation witness will be allowed only if the court deems the prior inconsistent statement to be an attack on general character for veracity.

Mere contradiction of a witness is usually not enough to be considered an attack on character for truthfulness, but, depending on the case, it may be so considered. Compare Problems IV-22 and 23.

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