CHAP. 8: IMPEACHMENT

CHAP. 8: IMPEACHMENT

P. JANICKE2012

2012 Chap. 8 -- Impeachment 2

DEFINITION AND METHODS

• IMPEACHMENT IS THE PROCESS OF ATTEMPTING TO WEAKEN THE PERCEIVED CREDIBILITY OF A WITNESS

• MOST COMMONLY DONE ON CROSS• AT LEAST SIX METHODS OF

IMPEACHMENT, EACH WITH ITS OWN RULES LIMITING REACH

2012 Chap. 8 -- Impeachment 3

MEANING OF “EXTRINSIC EVIDENCE”

• DOING THE IMPEACHMENT BY

– CALLING A WITNESS TO IMPEACH THE TARGET WITNESS, OR

– INTRODUCING A DOCUMENT TO DO SO

2012 Chap. 8 -- Impeachment 4

THE GENERAL MODES

• ARE ATTACKS ON THE WITNESS’S BELIEVABILITY DUE TO SOME GENERAL WEAKNESS AS A WITNESS

• I.E., A WEAKNESS NOT LIMITED TO THIS PARTICULAR CASE

2012 Chap. 8 -- Impeachment 5

1. PROVE IMPAIRED GENERAL COMPETENCY

– UNABLE TO OBSERVE OR REMEMBER THINGS IN GENERAL, NOT LIMITED TO THIS CASE

– EXTRINSIC EVIDENCE IS ALLOWED

2012 Chap. 8 -- Impeachment 6

2. POOR CHARACTER FOR VERACITY

a. BAD REPUTATION FOR TRUTHFULNESS – EXTRINSIC EVIDENCE ALLOWED, BUT NO SPECIFICS

b. PRIOR DISHONEST NON-CONVICTION ACTS, ESTABLISHED ON CROSS. EXTRINSIC EVIDENCE IS NOT ALLOWED

2012 Chap. 8 -- Impeachment 7

3. CONVICTION OF A CRIME

– ANY CRIME INVOLVING DISHONESTY • NO WEIGHING PROBATIVE VALUE OR

PREJUDICE

– ANY FELONY, BUT SUBJECT TO WEIGHING PROBATIVENESS AGAINST RISK OF PREJUDICE

– TEN-YEAR LIMIT IN EITHER CASE

2012 Chap. 8 -- Impeachment 8

– IF THE WITNESS ADMITS TO IT, CANNOT USE EXTRINSIC EVIDENCE TO PROVE THE CONVICTION

– IF THE WITNESS DOES NOT ADMIT, CAN USE RECORD ONLY (NO ADD’L WITNESS) –

• CRIME; DATE OF CONVICTION; SENTENCE. NO DETAILS

2012 Chap. 8 -- Impeachment 9

SPECIFIC MODES

• ATTACKS ON THE CREDIBILITY OF THE WITNESS IN THIS CASE ONLY

• THESE ASSUME THAT IN GENERAL THE WITNESS MIGHT HAVE GOOD VERACITY

2012 Chap. 8 -- Impeachment 10

MODES OF SPECIFIC IMPEACHMENT

4. PROVE IMPAIRED SPECIFIC COMPETENCY, i.e., ON THE OCCASION IN QUESTION

– DRUNK– NIGHT-TIME– LOOKING THE OTHER WAY– EXTRINSIC EVIDENCE ALLOWED

2012 Chap. 8 -- Impeachment 11

5. BIAS OR PREJUDICE

– FRIEND OR RELATIVE OF A PARTY– E.G.: BUSINESS OBJECTIVE IF ONE

SIDE WINS– E.G.: SIMILARLY SITUATED

NEIGHBORS

– EXTRINSIC EVIDENCE ALLOWED

2012 Chap. 8 -- Impeachment 12

6. PRIOR INCONSISTENT STATEMENT OF A WITNESS

– EXTRINSIC EVIDENCE ALLOWED; BUT ---

– MUST AFFORD TARGET WIT. A CHANCE DURING TRIAL TO EXPLAIN THE INCONSISTENCY• THEREFORE, CAN’T USE THIS MODE IF

WITNESS HAS BEEN EXCUSED AND IS BEYOND SUBPOENA REACH

PROBLEMS/CASES

• Abel• 8A• Lipscomb• 8E• Exercise #7

2012 Chap. 8 -- Impeachment 13

2012 Chap. 8 -- Impeachment 14

WHO CAN BE IMPEACHED ?

• ANY WITNESS WHO ANSWERS ANY QUESTION PLACES HIS CREDIBILITY IN ISSUE, AND CAN BE IMPEACHED

• CAN IMPEACH YOUR OWN WITNESS

2012 Chap. 8 -- Impeachment 15

• CAN IMPEACH AN IMPEACHING WITNESS

• A NON-TESTIFYING PARTY GENERALLY CANNOT BE IMPEACHED

2012 Chap. 8 -- Impeachment 16

SERIATIM IMPEACHMENT METHODS

• ARE GENERALLY ALLOWED, SUBJECT TO DISCRETION ON WASTE OF TIME

• MOST COMMONLY DONE WHEN FIRST METHOD FAILS

2012 Chap. 8 -- Impeachment 17

EXAMPLE #1 :

• D. TESTIFIES• ON CROSS, PROSECUTOR TRIES

TO SHOW PRIOR DISHONEST ACTS – FALSE INCOME TAX RETURN

• D. DENIES/ADMITS FILING FALSE RETURN

• PROSECUTOR CAN NOW SWITCH TO CONVICTION OF A CRIME MODE (FILING FALSE RETURN)

2012 Chap. 8 -- Impeachment 18

EXAMPLE #2

• IMPEACH A WITNESS FIRST WITH PRIOR DISHONEST ACTS (CROSS)

• THEN WITH FELONY CONVICTIONS

• THEN WITH PRIOR INCONSISTENT STATEMENTS

2012 Chap. 8 -- Impeachment 19

SOME SURPRISING THINGS

• NON-MIRANDIZED STATEMENT CAN BE USED TO IMPEACH A TESTIFYING D.

• PRE-MIRANDA-WARNING SILENCE CAN BE USED TO IMPEACH A TESTIFYING D.

2012 Chap. 8 -- Impeachment 20

• ILLEGALLY SEIZED ITEMS CAN BE USED TO IMPEACH A TESTIFYING D.

– E.G.: ILLEGALLY SEIZED SHIRT WITH NIFTY CUT-OUTS

– E.G.: ILLEGALLY SEIZED COCAINE

• ALL 3 OF ABOVE ARE SAID TO BE NECESSARY TO PROTECT INTEGRITY OF TRIAL SYSTEM

PROBLEMS/CASES

• Webster• Harris• Jenkins• Havens• 8G

2012 Chap. 8 -- Impeachment 21