Criminal Evidence6th Edition

Norman M. Garland

Chapter 6Credibility and Impeachment

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Credibility Problem With the Jury

o A jury may believe the entire testimony, or it may believe part of it and not believe other parts.

o It is not unusual for a jury to disbelieve all the testimony given by a witness.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

False Testimony = Lying?

o Not all false testimony is the result of lying.

o A witness may give testimony that is truthful, accurate, and clear; or a witness may give testimony that is untruthful, inaccurate, or distorted.

o Moreover, a witness's testimony may be false because the witness is intentionally or inadvertently wrong.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Five Basic Methods of Impeaching a Witness

(1) by contradiction(2) by showing that the witness has a bad

character with respect to the trait of truthfulness

(3) by showing that the witness has made statements inconsistent with his or her present testimony

(4) by showing that the witness is biased(5) by showing that the witness has a

failure or deficiency in the ability to perceive, remember, or narrate

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Cross-Examination for Impeachment Purposes

o If cross-examination is for impeachment purposes, a witness may be questioned on a number of matters that seem to have no relationship to the issues of the case.

o Remember that the scope of cross-examination is limited to the subject matter of direct examination.

o However, credibility is almost always relevant for cross-examination.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Impeachment by Contradiction: A Useful Definition

o Impeachment by contradiction is the act of saying the opposite of a statement or specifically denying a statement.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Impeachment by Contradiction

o In its simplest form, impeachment by contradiction is the act of the cross-examiner merely asking the witness to deny the fact or facts previously stated on direct examination. o Of course, this form of contradiction is

rarely, if ever, successful.

o Moreover, asking a witness to deny his or her previous testimony borders on being argumentative, which is not permitted.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Types of Criminal Convictions That May Be Admitted to Impeach

(1) conviction of a crime that is punishable by more than one year imprisonment or death, essentially a felony

(2) conviction of a crime, involving dishonesty or false statement, regardless of the potential or actual punishment

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Conviction Is Punishableby Imprisonment

o If the conviction is one punishable by imprisonment in excess of a year or death, under the FRE, the evidence must also be found by the trial judge to be logically relevant without being substantially outweighed by the danger of unfair prejudice and the like, under FRE 403.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The “Relevant” Test

o When the witness is also the accused in a criminal case, a different balancing test applies to convictions under this rule.

o In such a case, the evidence is inadmissible if the unfair prejudicial effect of the evidence merely outweighs the probative value.

o This special balancing test differs from the Rule 403 test in that the word "substantial" has been removed and therefore the prejudicial value only has to be slightly greater than the probative value to keep the evidence out.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Conviction Is for a Crime Involving Dishonesty or False

Statemento If the conviction is

one for a crime involving dishonesty or false statement, under another FRE, the evidence is automatically admissible and is not subject to either balancing test.

Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Crimes Involving Dishonestyor False Statement

o Perjuryo Subornation of perjury

o inducing another to commit perjury

o False statement o Criminal fraud o Embezzlemento False pretense, oro Any other offense

o the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Misconduct Not Resultingin a Conviction

o Evidence relating to conduct that might show a witness is not to be trusted is not admissible if it did not result in a conviction.

o However, under FRE 608(b), inquiry may be made into specific acts of misconduct that relate to truthfulness.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Opinion or Reputation Evidence Relating to Truthfulness

Two other forms of evidence permitted to prove character:

(1) opinion(2) reputation evidence

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Character Witnesso A person who has sufficient personal knowledge

of another individual may well be in a position to render an opinion or testify to the reputation of the character of the person in question.

o This witness is often referred to as a character witness.

o This character witness's testimony would be limited to opinion or reputation evidence that the first witness's character for truthfulness, honesty, or integrity is bad.

o An opinion is expressed in terms of what the character witness believes the first witness's character for truthfulness is.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Reputation Evidence

o Reputation evidence is expressed in terms of what the character witness has heard about the character of the first witness for truthfulness.

o Reputation evidence, although hearsay, is admissible as an exception to the hearsay rule.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Qualifying as a Character Witness

o The character witness must be shown to have close contact with the first witness.

o The contact must be close enough to enable the character witness to have sufficient knowledge of the person upon which to base an opinion as to character.

o The character witness is forbidden to testify to specific instances of conduct.

o The testimony is limited to the character witness's general opinion.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What the Character Witness Must Know

o The character witness who testifies to the first witness's reputation for truthfulness must be in a position to know what others say and think about that person.

o The testimony is limited to the character witness's general opinion.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Impeachment: Prior Inconsistent Statements

o One of the most frequently used means of impeachment is to show that the witness has made prior statements inconsistent with those being made in the present testimony.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

When was the inconsistent statement made? Is that relevant?

o These inconsistent statements may have been made at any time before the trial, or they may be made during the trial.

o A witness's statement during cross-examination that is inconsistent with the witness's testimony on direct examination, may serve to impeach the witness.

o One of the reasons for extensive cross-examination is to determine whether the witness will give inconsistent answers.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Inconsistent Statements

o Inconsistent statements are logically relevant to impeach a witness because a person who speaks inconsistently is less likely to be accurate or truthful.

o Therefore, any inconsistent statement demonstrates a weakness of credibility, regardless of the circumstances under which the statement is made.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Truth and Relevance

o When an inconsistent statement is used for impeachment purposes, its relevance does not depend upon the content of the statement being true.

o Inconsistent statements offered only for impeachment purposes need not be made under oath.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Inconsistent Statements & the FRE

o In a majority of states, particularly those that have adopted the FRE, there is no special foundation required for the introduction of a prior inconsistent statement.

o Therefore, if a witness makes a statement during direct or cross-examination that is inconsistent with a statement made at any other time, that statement may be introduced by the opposing party during the time that the party introduces its own evidence.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Opportunity to Explainor Deny the Statement

o The only requirement is that the witness who is being impeached must be afforded an opportunity to explain or deny the statement, and the opposing party must be afforded an opportunity to interrogate the witness with respect to the statement.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Impeachment: Pre-Trial Statement

o A pre-trial statement by a defendant may also be admitted for impeachment purposes as a prior inconsistent statement. There are some special considerations for such statements, however.

o First, the defendant's statements are independently admissible as admissions by a party opponent.

o Second, any statement sought to be used against the accused must meet constitutional and procedural requirements.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Bias or Motive to Falsify

One effective way to discredit the testimony of a witness is to show that the witness entertains feeling for or against one side or the other in the trial.

o For example, a defense witness may be a close relative of the defendant, for whom favorable bias would be natural. Yet, aside from pointing out the close relationship by questioning the witness, it may be difficult to prove bias.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Other Elements to Attack Credibility

o Perceptiono Memoryo Narrative Abilityo Sincerityo Eyesighto Hearingo Sense of Smell

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Lack of Religious Belief andthe Federal Rules of Evidenceo “Evidence of the beliefs or

opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Prior Consistent Statements Are Not Generally Admissible

o Prior consistent statements are not automatically admissible to rehabilitate a witness who has been impeached by the introduction of evidence of a prior inconsistent statement.

o Prior consistent statements are not generally admissible.

o If the witness is inclined to make false statements, the mere repetition of previous consistent statements does not make the present testimony any more true.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Impeaching One's Own Witness

o The common law rule was that a party who calls a witness vouches for the witness and, therefore, one cannot impeach one's own witness.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Out with the old! In with the new!

o The rule today is: "The credibility of a witness may be attacked by any party, including the party calling the witness."

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Unfavorable Witness Responses

o An attorney who calls a witness to testify usually presumes that the witness will testify favorably toward that side.

o However, attorneys frequently find that a witness cannot be depended upon to give the testimony anticipated.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Self-Incrimination

o When a person receives a subpoena to be a witness, he or she must obey the order to appear, willing or not.

o A witness is also required to answer truthfully the questions asked, irrespective of whom the answers may help or hurt.

o There is one exception to this:o The witness has the right to refuse to

answer any question that will be self-incriminating.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Privilege Against Self-Incrimination

o The privilege against self-incrimination permits a witness to refuse to answer any question if the answer would tend to show that the witness is guilty of a crime and would subject the witness to the danger of prosecution and conviction.

o The witness may refuse to answer even though the answer may not be a complete admission of guilt.

o The witness may refuse if the answer merely connects the witness with a crime or would be a source through which the evidence could be obtained to link the person with a crime.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Extent of the Privilege

o The privilege extends not only to a witness in a criminal trial, but to any kind of trial or official hearing.

o It is applicable to the defendant in a criminal trial as well as to other witnesses. This is why the courts so carefully scrutinize the admissibility of confessions.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Claiming the PrivilegeAgainst Self-Incrimination

o The witness is not the sole determiner of whether he or she may claim the privilege.

o The decision is within the discretion of the trial judge.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

How the Privilege Works

o If the question asked is obviously incriminating, the witness may refuse to answer and that refusal will be upheld by the judge.

o If the question asked does not appear to be one that would incriminate the witness, the witness may still claim the privilege; in order to determine whether the witness should be permitted to invoke the privilege, the judge may decide to question the witness.

o The witness may be compelled to answer a question when it is clear the answer is not incriminating, even though the witness may think that it is.

o If the witness absolutely refuses to answer the question, he or she may be held in contempt.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Judge’s Considerations

o In making a determination whether a question is such that the answer may incriminate the witness, the judge will take into account:

o the immediate setting of the testimony, o other testimony, and o what the likelihood of possible prosecution of the

witness may be.

oTo meet the test of possible incrimination, the judge must attempt to determine whether there is any possibility that the witness has committed a crime, and that the answer might in some way link the witness to that crime.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Witness’s Duties

o The witness may not refuse to answer a question because he or she anticipates that the next question will be one that would incriminate the witness.

o Also, the fact that the answer will incriminate someone else is not grounds for refusal to answer the question.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Witness’s Duties

o Moreover, if the prosecution is barred from asking the question for some reason, such as the guarantee against double jeopardy, the statute of limitations, or a grant of immunity, the witness may not claim the privilege.

o The mere fact that the answer to a question will embarrass or degrade the witness is not sufficient ground for refusing to answer.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Waiver of Privilege AgainstSelf-Incrimination

o A witness may waive the privilege against self-incrimination.

o In other words, the witness may testify concerning matters that may incriminate the witness if he or she so chooses.

o This is the right of the witness alone.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Waiver of Privilege AgainstSelf-Incrimination

o No one else may claim the privilege for a witness (a lawyer, for example).

o Furthermore, if the privilege is waived, it is waived for the entire matter.

o The witness may not testify about some of the facts favorable to the side calling the witness and then claim the privilege for other facts unfavorable during cross-examination.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Witness Immunity

o Rules that allow a witness to be spared from prosecution if the witness furnishes facts that might otherwise incriminate himself or herself.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Two Types of Immunity

o Use and derivative use immunityo Transactional immunity

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Use Immunity

o Use immunity prohibits the use of any testimony that is specifically immunized and any evidence derived from it in a prosecution of the immunized witness.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Transactional Immunity

Transactional immunity protects the immunized person from prosecution for all activity mentioned in his or her immunized testimony.

oTransactional immunity is sometimes referred to as “blanket immunity.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Supreme Court and Immunities

o Prior to 1972, when the United States Supreme Court held that use and derivative use immunity is consistent with the scope of the privilege against self-incrimination, the earlier case law was believed to require only transactional immunity.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Supreme Court and Immunities

o Since 1972, a state may prosecute a witness granted use immunity as long as the evidence used has been obtained from sources other than the witness's testimony.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What is in the privilege against self-incrimination?

o The privilege against self-incrimination relates to “testimonial compulsion.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What is not self-incrimination?

o The courts have generally held that requiring the defendant to perform certain physical acts, or to give physical evidence, is not considered to be testimony.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Acts Not Considered Testimonial Compulsion Within the Privilege

o Providing bloodo Providing fingerprint exemplarso Providing hair sampleso Speaking before a witness for

voice identification purposeso Exhibiting oneself before a jury