Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.
|CHAPTER IV: Competency, Examination, and Credibility of Witnesses|
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D. Impeachment by Character Evidence (371)
1. Character and Credibility?
The difference between Rule 608(b) evidence of specific instances of conduct and Rule 609(a) evidence of prior convictions is that a conviction at least eliminates the problem of spending time to establish that the conduct actually happened.
Answer and Analysis:
(1) C's testimony that he saw W steal a case of Remy Martin cognac by pretending that it had been paid for is inadmissible. This is an attempt to attack W's credibility by showing W's bad character. The incident bears on W's character as a truth-teller because the manner of stealing the gods' elixir involved lying. It is an attempt to prove that W is a liar by proving a specific instance of W's lying and to prove it by extrinsic proof. The mode of proof is the problem -- it is barred by FRE 608(a) and (b).
(2) W's conviction for grand larceny qualifies under FRE 609(a)(1) as a crime punishable in excess of one year, and evidence of the conviction through public record is admissible to impeach W's testimony. Under the 1990 amendments to Rule 609, since the evidence is offered to impeach a witness other than the accused, the court need not make a determination prior to admitting the evidence that the probative value outweighs the prejudicial effect to the accused. The difference between this situation and the previous one is that the existence of a conviction precludes debate about the act sought to be introduced. For this same reason, the defense should not be allowed to reopen the ground of W's conviction. In reality, if W testifies, "I was framed," it is unlikely to be stricken.
More practice applying Rules 608 and 609.
Answers and Analysis:
(1) Inadmissible. A's credibility cannot be supported with reputation testimony until it has been attacked. FRE 608(a). In any event, it would be A's reputation for truthfulness, not for peace and quietude, which would be relevant.
(2) Inadmissible unless A's credibility has been attacked. FRE 608(a).
(3) It depends on the punishment for the possession conviction. ustained. Assuming the conviction was not a felony, it would not qualify as an impeaching crime under FRE 609(a)(1). If possession were a felony, the evidence would be admissible because under amended Rule 609, no balancing test test would be applied. Possession of marijuana does not involve dishonesty or false statements, and thus does not qualify under FRE 609(a)(2).
(4) Possibly admissible. The conviction is for a crime that goes to truthfulness 609(a)(2), but the conviction is more than 10 years old. There is a presumption against admitting convictions past the 10 year limit; however, under Rule 609(b) the judge may do so if D gave P advance notice that he intended to use A's conviction and if the judge decides that the probative value of the conviction substantially outweighs its prejudicial effect.
(5) Since B testified about A's reputation, the question put to him on cross-examination should be framed: Have you heard that ---? By framing the question in this manner B's personal knowledge is then related to A's reputation. See Michelson. The federal rules avoid this sort of nonsense by permitting testimony about character to be in the form of opinion as well as reputation. Subject to this quibble, the question about A's conviction (or even arrest) for perjury is proper. The question about A's conviction for possession of marijuana is improper because the conviction is irrelevant to A's reputation for truthfulness.
(6) Objection sustained. A might have been cross-examined about his filing a false 10K statement. The cross-examiner's argument would be that the question relates to a specific instance of conduct which is probative of the witness's untruthfulness, relying on FRE 608(b). The judge has discretion to permit or exclude the question, and although no guidelines are provided in FRE 608, a judge might well refer to the guides of FRE 609 and exclude the question because it relates to an incident that happened more than ten years before.In any event the incident could not be proved by extrinsic evidence. The cross-examiner would be stuck with the answers given by the witness. Therefore C could not testify.
Moreover, A, if asked about the incident on cross-examination, could legitimately refuse to answer on Fifth Amendment grounds (assuming there was still some possibility of his being prosecuted). The matter relates only to his credibility. Therefore the witness has not waived his Fifth Amendment privilege with respect to it. See FRE 608(b), 2d paragraph.
(7) Objection overruled. A's character as a truth-teller has now been attacked. His character for truthfulness may now be supported by reputation or opinion testimony. FRE 608(a).
(8) Objection sustained. A's credibility has been attacked by showing that he is biased, but his character for truthfulness has not been attacked. The Advisory Committee's Note to FRE 608(a) emphasizes this distinction (albeit without explaining the reason), asserting that "evidence of bias or interest does not" qualify as an attack.
(9) A has been impeached in the sense that another witness contradicted him. One of them is lying or mistaken. In theory this is not an attack on the character of the witness. In practice, however, the conflict between the witnesses may be so sharp and so important to the outcome of the litigation that allowing supportive character testimony is sensible. This result is accomplished by allowing the trial judge, in his discretion, to treat some impeachment by contradiction as an attack on the character of the witness for truthfulness. See the Advisory Committee's Note to FRE 608(a).
2. The Use of Prior Convictions (374)
None of these prior convictions is admissible unless D takes the stand. Also, under Rule 609 as originally inacted, none of these prior crimes would be admissible unless asked of D or established by public record during the cross-examination of D, but this procedural limitation was dropped in the 1990 amendments to the rule. If D takes the stand, then:
(1) Admissible subject to the judge's decision that probative value outweighs prejudicial impact. FRE 609(a)(1).
(2) Not admissible because petty larceny is not punishable by more than a year, and not a crime involving dishonesty or false statement. See United States v. Fearwell (287).
(3) Admissible under FRE 609(a)(2).
(4) Admissible under FRE 609(a)(2).
(5) Presumptively inadmissible but subject to judge's decision if prior notice of intent to offer it was given. See United States v. Sims (292).
Some of the factors to be weighed by a judge are remoteness of the conviction, its bearing on veracity, peculiarities of the case, whether the conviction resulted from a guilty plea or a verdict, etc. See the following three cases.
This case is an example of the weighing process by which a district judge must determine the admissibility of prior convictions of a criminal defendant who testifies in his own defense. The five factors (not all of which cut in the same way) are:
In Alexander the appellate court held that prior convictions for robbery and drug trafficking were properly admitted on the defendant's credibility as a witness in his own behalf in a prosecution for armed robbery and conspiracy.
This case involves a defendant's efforts to get a prior conviction of a prosecution witness admitted. Although the test under Rule 609 for the admission of a prior conviction of a prosecution witness is somewhat more lenient (Rule 403 balancing of probative value and danger of unfair prejudice) than would be the case for prior convictions of the defendant, in this case a prior misdemeanor conviction of impersonating a police officer was not considered probative enough to be admissible as a matter of law.
This case addresses the boundary between crimes of dishonesty or false statement, which are admissible irregardless of level of actual or potential punishment and other crimes, which are only admissible if they are of a minimum level of seriousness (potential sentence of 1 year imprisonment). The court determined that shoplifting is not by its nature a crime involving dishonesty or false statement, and that hence a prior conviction for shoplifting of a government witness would not be admissible.
This court imposed a strong presumption
against use of prior convictions to impeach witness defendants. The "strong
justification required by the court seems to go beyond the mere outweighing"
required by Rule 609(a)(1). This case is a good example of the weighing of
different factors when deciding whether to allow impeachment evidence. Despite
the fact that the impeaching crime is barely a felony, the court still examines
what the crime really says about the defendant's credibility. Also, it is
important to the court that the defendant's testimony was crucial to his defense,
and that the defendant would be inhibited from testifying if the government
were allowed to impeach him with the prior conviction.
In this case the district court had originally excluded a prior conviction of the defendant when offered by the Government under Rule 404(b) on the ground that the probative value of the conviction under 404(b) was substantially outweighed by the danger of unfair prejudice under Rule 403. When the defendant took the stand in his own defense, the prosecution reoffered the conviction solely on his credibility, and the court admitted the prior conviction under Rule 609 solely for that purpose. The test for admissibility under Rulr 404 is independent from the test under Rule 600. There is no reason why evidence cannot be admissible under one rule, and not the other.
3. Rehabilitation of Credibility of Witnesses (390)
Evidence bolstering character for truthfulness is allowed only after the witness' character for truthfulness is attacked.
Answer and Analysis:
(1) Objection sustained. Evidence supporting D's character for truthfulness is premature at this point because his credibility has not yet been attacked. FRE 608(a)(2).
(2) Objection overruled. D can offer evidence of his good character with respect to a trait bearing on what happened without his character first having been attacked. FRE 404(a)(1).
(3) This depends on what the grand larceny conviction was admitted to prove. The problem is ambiguous on this. It is hard to imagine how the conviction could come in under Rule 404(b). Most likely, the conviction was introduced during cross-examination of D to impeach his credibility.
Alternatively, W might have been asked on cross-examination whether he was aware of D's conviction, as a method of testing his testimony regarding D's reputation for peace and quietude (Rule 405(a); Michelson), but it is hard to see how a conviction for grand larceny goes to peacefulness.
Assuming the grand larceny conviction was admitted to impeach D's credibility under FRE 609, then D 's character for truthfulness has been attacked, and evidence in the form of reputation or opinion may now be admitted to show D's good character for truthfulness. FRE 608(a)(2).
See the discussion following the problem.
For more on this, see Outlaw v. United States 81 F.2d 805, 807-808 (5th Cir.), cert. denied, 298 U.S. 665 (1936), and United States v. Medical Therapy Services Inc. 583 F.2d 36 (2d Cir. 1978), cert. denied. 100 S. Ct. 1049 (1980), discussed in 3 Weinstein's Evidence § 608 at pp. 608-47 to 608-50.
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.
Answer and Analysis:
This problem was adapted from Royal v. Cameron, 382 S.W.2d 335 . (Ct. Civ. App. Tex. 1964), in which the court held that inconsistencies or contradictions in testimony created by cross-examination and by witnesses simply giving different versions of the same transaction are not sufficient predicate to authorize a party to bolster his witness by proof of his good reputation for truth and veracity or otherwise. Id. at 342. It is possible that P could not or did not think to use these funds to go to a doctor. If, on the other hand, D's evidence consisted of a film showing P playing tennis when he supposedly was incapacitated with neck and back injuries, this would amount to an attack on P's character for truthfulness and be subject to rebuttal by a character witness for P.
Witnesses can differ without either of them being a liar, evidence of specific contradiction is not necessarily an attack on character for truthfulness.
Objection sustained. There has been no attack on Wl's character for truthfulness. WI was merely contradicted.
4. Using Extrinsic Evidence of Character to Impeach Credibility (392)
Any evidence that sheds light on a witness's capacities to perceive, remember, communicate or tell the truth is relevant and of interest to the factfinder. But the shortness of life and considerations of efficiency and coherence require that some limit be placed on such evidence when it is not centrally connected to the case at hand. The problem is in constructing a workable test of "central connectedness," or, to put it the other way, "collateralness."
Answer and Analysis:
Objection sustained. The extrinsic evidence is relevant but probably too collateral to allow. The cross-examination was proper, going to W's memory. The cross-examiner may, however, be limited to what extrinsic evidence he can introduce to contradict the witness's answer if the issue on which he is testing the witness is considered "collateral."
There is no specific federal rule dealing with this. The Hitchcock rule of collateralness is apparently carried forward as an implicit aspect of FRE 403, 404 and 608. Under the Hitchcock rule, the title of the movie W saw would be considered collateral because it would not be a part of D's case unless W had testified in some contrary way.
The Hitchcock rule is quite arbitrary. The federal rules, by their absence of specific direction on the subject, clearly leave a trial judge discretion to assess collateralness according to the facts of the case and the importance of the circumstances. A judge would consider how important the witness was, how significant the offered testimony would be in undermining the witness's credibility, and how time-consuming and destructive the extrinsic proof would be if allowed.
Both FRE 608(b) and the Hitchcock rule are too rigid. If either governs all cases of use of extrinsic evidence to impeach credibility, it would exclude evidence that most would agree should be admitted in this case.
Answer and Analysis:
This evidence would be excluded under the Hitchcock rule because D would not be allowed to prove it as part of his case-in-chief.
FRE 608(b) provides that a witness may be cross-examined about past specific instances of conduct for the purpose of attacking the credibility of the witness, but that such prior instances of conduct may not be proved by extrinsic proof. This makes some sense when applied to past instances of lying or truth-telling. It makes considerably less sense if the witness is caught in a lie right on the witness stand.
Nonetheless, as drafted, the evidence offered by D is inadmissible under FRE 608(b). If FRE 608 governs, D can inquire about such matters on cross-examination, but he is stuck with the witness's answer.
An alternative approach would be to view evidence of such basic matters -- witness identification -- as governed by Rules 401-403 and subject to control by the court under Rule 611. This imparts more flexibility into the process and confines Rule 608 to its intended scope.
Rule 608(b) does not limit use of extrinsic evidence to show bias. Most courts have held that the issue of bias is not a collateral matter.
Answer and Analysis:
P's first objection will be overruled. Cross-examination relating to credibility (including bias) is always allowed even on a subject matter not within the scope of direct.
P's objection to D. Jr.'s testimony will also be overruled because it goes to bias, not Harry's general character as a liar. Proof of bias is not constrained by FRE 608 and is not a collateral matter. See generally Hale, Bias as Affecting Credibility, I HASTINGS L.J. 1 (1949).
Exploration of the difference between impeachment by showing bias and use of character evidence, and demonstration of the doctrine of independent relevancy.
Practice in applying the rules on impeachment, character, and credibility.
Answer and Analysis:
The problem presents the relevant sections of the record in United States v. Pisari, which follows at text, p. 400 Counsel for the defendant is George Higgins, author of The Friends of Eddie Coyle, Cogan's Trade, etc.
Defense counsel's first objection to cross-examination of D about the 1977 robbery should have been sustained. Since the evidence is not admissible under FRE 404(b), it could only come in for impeachment. D apparently was not convicted of the prior robbery, so FRE 608(b) applies. Rule 608(b) explicitly limits inquiry into specific acts on cross-examination to acts "probative of truthfulness or untruthfulness." Robbery with a knife does not fall into the category of acts probative of untruthfulness. This line of questioning should not have been allowed on cross-examination.
Agent Coombs' testimony was admitted as a prior inconsistent statement of D for the purpose of impeachment. This might have been permissible (momentarily ignoring the problem of extrinsic evidence) except for the fact that the inconsistent statement made at trial was in response to an improper question. If the original question and answer are struck, there is no inconsistency. The first error made both wrong.
This second objection should also be sustained because it is extrinsic evidence of a collateral matter. If the matter to which the statement relates is not collateral, then the prosecution could introduce the extrinsic proof whether the witness testified or not. For example, in Pisari if the prior crime to which the statement related had a sufficiently distinctive M.O. to justify its admissibility to prove identify under FRE 404(b) (which clearly it did not), then the prosecution would have been able to offer evidence about the prior crime regardless of whether the defendant testified. But when the issue to which the past inconsistent statement relates is not collateral, FRE 608(b) does not bar proof of the prior inconsistent statement by extrinsic evidence.
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