Lee Burgess: Welcome back to the Law School Toolbox Podcast.
Today, we're doing another in our "Listen and Learn" series about evidence.
This is about impeachment.
Your Law School Toolbox hosts are Alison Monahan and Lee Burgess, that's me.
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And with that, let's get started.
Welcome back!
Today, we are diving into part one of a two-part series
on the topic of impeachment.
Impeachment is a subsection of evidence, which is a commonly-tested area on
evidence exams and the bar exam.
As a general matter, evidence covers what can and cannot be
introduced in a court of law.
It is the set of rules that govern proper testimony and the submission
of evidence into the record to ensure fairness, reliability, and relevance.
As it relates to our episode today, evidence covers how and why a witness
can be impeached during a trial.
Impeachment of a witness refers to the attempts by opposing counsel
to discredit a witness or call into question their credibility.
Council does this by presenting evidence or asking questions
that may show their testimony was biased, inconsistent, or untrue.
Basically, opposing counsel wants the jury or judge not to trust
that witness or what they say.
As I mentioned, this is a two-part series because we have a lot of
ground to cover on impeachment.
To make it as concrete and memorable as possible, I have divided impeachment
up into two major categories: impeachment of a witness's character
and impeachment of the testimony itself.
In other words, is the witness credible?
And is the testimony itself reliable?
Today, we are going to focus on character impeachment.
That is whether or not the witness is credible.
When opposing counsel seeks to impeach a witness's character, they are trying
to show that the witness's testimony cannot be believed because it is
coming from a person who cannot be trusted for one reason or another.
Now, to be clear, opposing counsel does not have free reign to attack
witnesses or impugn their character.
They cannot just bring out every skeleton in a witness's closet to
try to turn the jury against them, especially when those skeletons have no
bearing on the trial or issue at hand.
If that were allowable, no one could be a witness.
There are no perfect people To ensure relevant and probative evidence
comes in while mudslinging stays out.
Rules are in place to guide impeachment of a witness's character.
So let's go through each one together.
As with all rules of evidence, keep in mind the overarching goals of evidentiary
rules: the admission of probative, relevant reliable evidence, and only
probative, relevant, reliable evidence to guide an adjudicator to a just outcome.
Okay, let's jump in with a relatively straightforward one: bias.
Bias of a witness is always fair game.
A witness's bias, motive, partiality, or corruption is
always relevant for impeachment.
Again, remember the purpose of rules of evidence: we want evidence to be
relevant, reliable, and probative.
If a witness is biased towards one result or another, their
testimony may not be reliable.
If they are incentivized to see one side win, their testimony may be
partially or even wholly influenced by that desire and not by the truth alone.
Now, that doesn't mean their testimony is necessarily unreliable.
They might be telling the truth.
But their possible bias is fair game for opposing counsel to ask questions
about, to see whether that bias is affecting the witness's testimony.
So let's move on to another relatively straightforward rule:
character for truthfulness.
Opposing counsel may cross-examine a witness on their character for
truthfulness; it goes to their credibility as a witness and therefore
the credibility of their statement.
A witness's credibility may be attacked by the introduction of two things:
( 1) reputation testimony about the witness's character for truthfulness or
untruthfulness; or (2) opinion testimony.
I want to flag here that evidence about the witness's character for truthfulness
may also be admissible, but it can only be introduced if and when the witness's
character for truthfulness is attacked.
The court will not admit evidence bolstering a witness's credibility if
that credibility is not in question.
That runs the risk of swaying the adjudicator to believe the witness
just because they like them and think they're an upstanding person.
While that may be true, likability is not relevant to a just outcome.
Character of truthfulness covers the admissibility of
others' opinions of a witness.
But what about evidence about a witness's conduct?
Specific instances of conduct are also admissible as impeachment,
but only in certain circumstances.
A witness's credibility may be attacked with specific instances of conduct
- prior bad acts - only if the conduct is probative of the witness's character
for truthfulness or untruthfulness.
Now, remember when I said the court doesn't like mudslinging?
The court is not going to admit into evidence every bad or unsavory
act a witness has ever committed.
Again, that isn't relevant, and no witness would survive such viciousness.
But if their prior bad act speaks to their character for truthfulness,
well, that's a different story.
The court is trying to get at whether a witness can be believed.
The court doesn't care if a witness ran a red light, but
they might care if they then lied about it after being pulled over.
Why?
Because it is probative to the question of whether the witness is
honest, truthful, and believable.
I also want to note here that extrinsic evidence is never
admissible to attack or support such instances of a witness's credibility.
Testimony alone is admissible here.
So let's take a look at a hypo to give us a sense of how some of these
rules play out during testimony.
This question is adapted from the February 2016 California bar exam:
"Mike, Sue, Pam, David and Ed worked at ACE Manufacturing Company.
Pam was fired.
A week later, David circulated the following email to all the
other employees: ' I just thought you should know that Pam was
fired because she is a thief.
Sue caught her stealing money from the petty cash drawer after Pam's affair with
Mike ended.' A month later, Mike died.
Pam sued David for defamation.
At trial, Pam testified that although it is true that she was fired, the remaining
contents of the email were false.
In defense, David called Sue, who testified that she had caught Pam stealing
$300 from the petty cash drawer and that when Sue confronted Pam and accused her of
taking the money, Pam simply walked away.
David himself testified that the contents of the email were true.
Is Sue's testimony that she caught Pam stealing $300 admissible?"
So, what do you think?
Remember that evidence of a witness's bad behavior is not typically admissible.
Smearing the witness does not help the adjudicator get to
the truth of the claim at hand.
But some evidence of bad behavior is relevant to truthfulness.
So let's review the rules we've learned so far: bias, character for truthfulness,
and specific instances of conduct.
Do any of those apply here?
Sue's testimony about witnessing Pam steal and her lack of reaction don't really go
to Pam's bias, so we can skip that one.
What about character for truthfulness?
To review, a witness's credibility may be attacked by the introduction
of two things: ( 1) reputation testimony about the witness's
character for truthfulness or untruthfulness; or (2) opinion testimony.
Sue's testimony definitely touches on Pam's character for truthfulness.
Both David and Sue see Pam as dishonest, and they base that on
their prior experiences with her.
Remember, though, now that character testimony has been introduced against
Pam, she has the opportunity to introduce positive character evidence about herself.
So she might want to take that opportunity.
Alright, let's look at the last rule: specific instances of conduct.
I think this is another way the court could admit this testimony.
The specific instance of Pam's theft is admissible, even though it is prejudicial
because the conduct is probative of her character for truthfulness.
Stealing money is taking something for your own and lying about it, or
failing to tell the truth about the fact that you did that, so it impacts
a person's character for truthfulness.
In this case, the court would be correct to admit this testimony about Pam.
But again, she may be able to introduce evidence of her good and
truthful character, if any exists, to combat this impugning evidence.
So I hope that hypo helped solidify some of those rules.
With those covered, we now have the murkiest of the character
impeachment rules: prior convictions.
Evidence of a prior conviction may be admitted in certain
instances, but not always.
The key is remembering which type of prior convictions may be
admitted to impeach a witness.
First, prior crimes, whether felonies or misdemeanors, that involved dishonesty are
always admissible to impeach a witness.
Again, we're looking at whether a witness can be trusted.
If they have a prior conviction for a crime related to honesty, that
is important information to know.
I do want to point out here, though, that theft crimes are not crimes of dishonesty.
So try to keep that in mind when analyzing whether a witness can
be impeached with a prior crime.
Apart from the very specific circumstances of misdemeanors involving
dishonesty, misdemeanors are not admissible to impeach a witness.
Some other felonies, however, are.
Remember, a felony is a crime punishable by death or by a
sentence of more than one year.
Evidence about felonies that do not involve dishonesty may be admissible, but
only if the witness is not the defendant.
This permissability, however, subject to Rule 403 exclusions – most relevant
being whether the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice.
Be sure to review Rule 403 exclusions if you're not familiar with them.
We've been talking about felonies – criminal cases – but the rule I just
stated also applies to civil cases.
An opposing party may submit impeachment evidence regarding a civil case not
involving dishonesty, but only if the witness is not a defendant and, of
course, subject to Rule 403 exceptions.
But what if the witness is the defendant?
In that case, evidence is limited to criminal cases, and it is only
admissible if the probative value outweighs any prejudicial effect.
Now, that is a bit of a squishy rule, so be sure you carefully analyze both
the potential probative value and potential prejudicial effect on an exam.
It is important to note that there are two exceptions to the
admission of prior convictions.
The first is commonly known as the 10-year exception.
If 10 years have passed from the later of the date of conviction or the
release from jail, the conviction is not admissible unless (1) its probative
value outweighs its prejudicial effect; and (2) the proponent provides reasonable
written notice to the adverse party.
Now you may notice a trend here.
In considering impeachment evidence, the court is very concerned about weighing
probative value versus prejudicial effect.
The 10-year exception stands out, however, in that it requires reasonable written
notice to be given to the opposing party if the evidence is going to be admitted.
And don't worry, I haven't forgotten the second exception.
The other exception to the of prior convictions regards a conviction
that has been pardoned or annulled.
Evidence of a conviction is not admissible if it's been pardoned or
annulled based on a finding of innocence.
Well, that makes sense, right?
Why should a conviction be admissible if the witness did
not actually commit the crime?
That conviction has no probative value – it doesn't tell you
anything helpful about the witness.
To help us drill these rules into memory, let's look at another hypo.
This hypo is adapted from the February 2020 California bar exam, so like
the prior one, it's a good example of something you might see on a real exam.
I've shortened it a bit to focus on the issues at hand.
Ready?
"Des is on trial for possession with intent to distribute
hundreds of pounds of cocaine.
At trial, the prosecution called Carol, a severed co-defendant who had
pleaded guilty to reduced charges in exchange for testifying against Des.
Carol testified that she had acted as a distributor for a ring of cocaine dealers.
In that role, Carol had sold hundreds of pounds of cocaine to
many people, including Des, during the period of the charged crime.
Carol further testified that Des agreed to sell cocaine.
During cross-examination, Des's attorney introduced evidence that Carol had
received a reduced sentence in exchange for agreeing to testify against Des.
The prosecution objected, the court allowed the evidence to be admitted.
Next, Des took the stand in his own defense.
On cross-examination, Pete asked Des if it was true that eleven years earlier, he
had been convicted of forgery, a felony.
Des answered, ' Yes.'
Did the court properly admit:
1. Evidence of Carol's agreement with the prosecutor?, and
2. Evidence of Des's prior conviction for forgery?"
Let's take each question one at a time.
What do you think?
Was it proper for the court to admit evidence that Carol cut a deal
with the prosecution for a reduced sentence in exchange for her testimony?
Remember all the way back at the beginning of this episode, when we covered bias?
You might remember me saying that a witness's bias is always fair game.
It's always relevant for impeachment.
Do you think Carol's deal might make her biased?
Of course, we don't know if her testimony is truthful or not, but I think we can
certainly argue that this agreement raises some questions about her impartiality.
She would not get a deal from the prosecution for testifying
that Des was innocent.
Her reduced sentence relies on her testimony in support of the prosecution,
which is arguing Des's guilt.
For that reason, I think this evidence is pretty squarely admissible.
Now, what about the second question?
Did the court properly admit Des's prior conviction for forgery?
The prosecution clearly wants to use this conviction to impeach
Des, to show that Des is a liar and his testimony can not be trusted.
Now think back: when is the opposing party able to introduce evidence that impugns
the witness's character for truthfulness?
I see two that are relevant here.
First, a party may introduce evidence of a prior conviction
that relates to dishonesty.
Remember, prior crimes that involve dishonesty are always
admissible to impeach a witness.
And while theft crimes are not crimes of dishonesty,
forgery is something different.
If Des committed forgery, he was holding himself out to be someone he was not
or have permission he did not have.
He lied.
This is intrinsically a crime of dishonesty.
So I think it is admissible as a prior conviction related to dishonesty.
Now, second, was this also a proper impeachment via
evidence of a prior bad act?
In a criminal case, a prosecutor can ask the defendant about bad acts
committed in the past that reflects the defendant's character for truthfulness.
As we just discussed, forgery is exactly the type of behavior
that calls into question a person's honesty and truthfulness.
Thus, this evidence is properly admitted to impeach Des and show
that he was not a credible witness.
Now, wait.
You might be thinking, "Doesn't an exception apply here? I thought crimes
committed more than 10 years ago weren't admissible as prior convictions." Well, if
you caught that, excellent issue spotting.
As a refresher, if 10 years have passed from the date of conviction or
the release from jail, whichever is later, the conviction is not admissible
unless (1) its probative value outweighs its prejudicial effect, and
(2) the proponent provides reasonable written notice to the adverse party.
We need to analyze a couple of things to understand whether this exception applies.
First, it's clear from the question that Des's conviction took place 11 years ago.
But did he go to prison?
If so, when was he released?
We don't know the answer; the prompt does not tell us.
So when answering this question on an exam, it is important to note that if Des
went to jail and was released less than 10 years ago, this exception does not apply.
But since we don't know that, we need to finish the analysis,
presuming the exception does apply.
We need to weigh whether the probative value of the evidence outweighs its
prejudicial effect and whether proper notice was given to Des's attorney.
Again, we don't know the answer to the second prong, so we'll just
flag it as an issue in our answer.
If proper notice was not given, the evidence is not admissible.
What about the first prong, though?
Do you think the probative value of Des's forgery conviction
outweighs its prejudicial effect?
Evidence that Des was dishonest is quite probative in determining his credibility.
On the other hand, it is quite prejudicial, and doing one dishonest thing
over a decade ago with no convictions since may not be very strong evidence
that Des remains a dishonest person.
I think you can go both ways here, but I think the court would lean
toward admitting the evidence.
In all, I would argue the court properly admitted both pieces of
evidence for impeachment purposes.
I know it's a lot, but try not to get overwhelmed by all the
possibilities and iterations.
Just take each test one step at a time, and make sure you're
quite familiar with the rules.
Evidence questions always have a lot going on and a lot to keep track of,
so being able to quickly spot and apply the rules will go a long way in
helping you write a solid exam answer.
And that's all the time we have for today, but we'll be back soon with
part two of impeachment evidence.
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