1 00:00:01,810 --> 00:00:04,300 Lee Burgess: Welcome back to the Law School Toolbox Podcast. 2 00:00:04,540 --> 00:00:08,524 Today, we're doing another in our "Listen and Learn" series about evidence. 3 00:00:08,699 --> 00:00:10,589 This is about impeachment. 4 00:00:10,796 --> 00:00:14,876 Your Law School Toolbox hosts are Alison Monahan and Lee Burgess, that's me. 5 00:00:15,176 --> 00:00:18,386 We're here to demystify the law school and early legal career 6 00:00:18,386 --> 00:00:21,954 experience, so you can be the best law student and lawyer you can be. 7 00:00:22,205 --> 00:00:25,615 We're the co-creators of the Law School Toolbox, the Bar Exam Toolbox, and the 8 00:00:25,615 --> 00:00:27,415 career-related website CareerDicta. 9 00:00:27,734 --> 00:00:30,194 Alison also runs The Girl's Guide to Law School. 10 00:00:30,448 --> 00:00:33,148 If you enjoy the show, please leave a review or rating on 11 00:00:33,148 --> 00:00:34,348 your favorite listening app. 12 00:00:34,580 --> 00:00:37,280 And if you have any questions, don't hesitate to reach out to us. 13 00:00:37,472 --> 00:00:40,922 You can reach us via the contact form on LawSchoolToolbox.com, 14 00:00:40,952 --> 00:00:42,152 and we'd love to hear from you. 15 00:00:42,378 --> 00:00:44,088 And with that, let's get started. 16 00:00:51,107 --> 00:00:52,097 Welcome back! 17 00:00:52,253 --> 00:00:55,973 Today, we are diving into part one of a two-part series 18 00:00:56,003 --> 00:00:57,863 on the topic of impeachment. 19 00:00:58,172 --> 00:01:02,822 Impeachment is a subsection of evidence, which is a commonly-tested area on 20 00:01:02,822 --> 00:01:04,769 evidence exams and the bar exam. 21 00:01:05,365 --> 00:01:08,875 As a general matter, evidence covers what can and cannot be 22 00:01:08,875 --> 00:01:10,585 introduced in a court of law. 23 00:01:10,865 --> 00:01:15,405 It is the set of rules that govern proper testimony and the submission 24 00:01:15,405 --> 00:01:20,282 of evidence into the record to ensure fairness, reliability, and relevance. 25 00:01:20,514 --> 00:01:24,871 As it relates to our episode today, evidence covers how and why a witness 26 00:01:24,871 --> 00:01:26,791 can be impeached during a trial. 27 00:01:27,117 --> 00:01:31,347 Impeachment of a witness refers to the attempts by opposing counsel 28 00:01:31,377 --> 00:01:34,996 to discredit a witness or call into question their credibility. 29 00:01:35,309 --> 00:01:39,119 Council does this by presenting evidence or asking questions 30 00:01:39,119 --> 00:01:43,326 that may show their testimony was biased, inconsistent, or untrue. 31 00:01:43,669 --> 00:01:47,749 Basically, opposing counsel wants the jury or judge not to trust 32 00:01:47,749 --> 00:01:49,528 that witness or what they say. 33 00:01:50,403 --> 00:01:54,346 As I mentioned, this is a two-part series because we have a lot of 34 00:01:54,346 --> 00:01:56,146 ground to cover on impeachment. 35 00:01:56,423 --> 00:02:00,583 To make it as concrete and memorable as possible, I have divided impeachment 36 00:02:00,643 --> 00:02:05,092 up into two major categories: impeachment of a witness's character 37 00:02:05,178 --> 00:02:07,368 and impeachment of the testimony itself. 38 00:02:07,668 --> 00:02:10,088 In other words, is the witness credible? 39 00:02:10,143 --> 00:02:12,693 And is the testimony itself reliable? 40 00:02:13,005 --> 00:02:15,855 Today, we are going to focus on character impeachment. 41 00:02:15,984 --> 00:02:18,989 That is whether or not the witness is credible. 42 00:02:19,868 --> 00:02:23,735 When opposing counsel seeks to impeach a witness's character, they are trying 43 00:02:23,735 --> 00:02:27,851 to show that the witness's testimony cannot be believed because it is 44 00:02:27,851 --> 00:02:31,841 coming from a person who cannot be trusted for one reason or another. 45 00:02:32,640 --> 00:02:37,230 Now, to be clear, opposing counsel does not have free reign to attack 46 00:02:37,230 --> 00:02:39,480 witnesses or impugn their character. 47 00:02:39,770 --> 00:02:44,242 They cannot just bring out every skeleton in a witness's closet to 48 00:02:44,242 --> 00:02:49,402 try to turn the jury against them, especially when those skeletons have no 49 00:02:49,432 --> 00:02:51,892 bearing on the trial or issue at hand. 50 00:02:52,166 --> 00:02:55,518 If that were allowable, no one could be a witness. 51 00:02:55,648 --> 00:02:59,517 There are no perfect people To ensure relevant and probative evidence 52 00:02:59,547 --> 00:03:02,367 comes in while mudslinging stays out. 53 00:03:02,533 --> 00:03:06,283 Rules are in place to guide impeachment of a witness's character. 54 00:03:06,487 --> 00:03:08,767 So let's go through each one together. 55 00:03:09,154 --> 00:03:14,251 As with all rules of evidence, keep in mind the overarching goals of evidentiary 56 00:03:14,275 --> 00:03:19,453 rules: the admission of probative, relevant reliable evidence, and only 57 00:03:19,464 --> 00:03:24,875 probative, relevant, reliable evidence to guide an adjudicator to a just outcome. 58 00:03:25,664 --> 00:03:30,580 Okay, let's jump in with a relatively straightforward one: bias. 59 00:03:30,863 --> 00:03:33,713 Bias of a witness is always fair game. 60 00:03:34,003 --> 00:03:38,770 A witness's bias, motive, partiality, or corruption is 61 00:03:38,860 --> 00:03:40,870 always relevant for impeachment. 62 00:03:41,268 --> 00:03:46,248 Again, remember the purpose of rules of evidence: we want evidence to be 63 00:03:46,248 --> 00:03:49,234 relevant, reliable, and probative. 64 00:03:49,528 --> 00:03:53,165 If a witness is biased towards one result or another, their 65 00:03:53,165 --> 00:03:55,745 testimony may not be reliable. 66 00:03:55,942 --> 00:04:00,576 If they are incentivized to see one side win, their testimony may be 67 00:04:00,596 --> 00:04:06,332 partially or even wholly influenced by that desire and not by the truth alone. 68 00:04:06,627 --> 00:04:10,617 Now, that doesn't mean their testimony is necessarily unreliable. 69 00:04:10,777 --> 00:04:12,277 They might be telling the truth. 70 00:04:12,390 --> 00:04:17,661 But their possible bias is fair game for opposing counsel to ask questions 71 00:04:17,661 --> 00:04:21,729 about, to see whether that bias is affecting the witness's testimony. 72 00:04:22,503 --> 00:04:26,403 So let's move on to another relatively straightforward rule: 73 00:04:26,593 --> 00:04:28,573 character for truthfulness. 74 00:04:28,836 --> 00:04:32,354 Opposing counsel may cross-examine a witness on their character for 75 00:04:32,354 --> 00:04:36,945 truthfulness; it goes to their credibility as a witness and therefore 76 00:04:36,945 --> 00:04:38,685 the credibility of their statement. 77 00:04:39,001 --> 00:04:43,885 A witness's credibility may be attacked by the introduction of two things: 78 00:04:44,054 --> 00:04:49,109 ( 1) reputation testimony about the witness's character for truthfulness or 79 00:04:49,109 --> 00:04:52,436 untruthfulness; or (2) opinion testimony. 80 00:04:52,808 --> 00:04:57,361 I want to flag here that evidence about the witness's character for truthfulness 81 00:04:57,361 --> 00:05:02,531 may also be admissible, but it can only be introduced if and when the witness's 82 00:05:02,531 --> 00:05:04,841 character for truthfulness is attacked. 83 00:05:05,067 --> 00:05:09,488 The court will not admit evidence bolstering a witness's credibility if 84 00:05:09,488 --> 00:05:11,764 that credibility is not in question. 85 00:05:12,095 --> 00:05:16,752 That runs the risk of swaying the adjudicator to believe the witness 86 00:05:16,782 --> 00:05:20,732 just because they like them and think they're an upstanding person. 87 00:05:21,132 --> 00:05:26,041 While that may be true, likability is not relevant to a just outcome. 88 00:05:26,733 --> 00:05:30,412 Character of truthfulness covers the admissibility of 89 00:05:30,472 --> 00:05:32,272 others' opinions of a witness. 90 00:05:32,525 --> 00:05:35,680 But what about evidence about a witness's conduct? 91 00:05:36,014 --> 00:05:40,422 Specific instances of conduct are also admissible as impeachment, 92 00:05:40,541 --> 00:05:42,881 but only in certain circumstances. 93 00:05:43,081 --> 00:05:47,371 A witness's credibility may be attacked with specific instances of conduct 94 00:05:47,530 --> 00:05:53,035 - prior bad acts - only if the conduct is probative of the witness's character 95 00:05:53,035 --> 00:05:55,094 for truthfulness or untruthfulness. 96 00:05:55,453 --> 00:05:59,213 Now, remember when I said the court doesn't like mudslinging? 97 00:05:59,418 --> 00:06:04,909 The court is not going to admit into evidence every bad or unsavory 98 00:06:04,909 --> 00:06:06,739 act a witness has ever committed. 99 00:06:07,075 --> 00:06:12,114 Again, that isn't relevant, and no witness would survive such viciousness. 100 00:06:12,320 --> 00:06:16,250 But if their prior bad act speaks to their character for truthfulness, 101 00:06:16,327 --> 00:06:17,527 well, that's a different story. 102 00:06:17,842 --> 00:06:21,412 The court is trying to get at whether a witness can be believed. 103 00:06:21,539 --> 00:06:24,650 The court doesn't care if a witness ran a red light, but 104 00:06:24,650 --> 00:06:28,460 they might care if they then lied about it after being pulled over. 105 00:06:28,770 --> 00:06:29,340 Why? 106 00:06:29,662 --> 00:06:32,632 Because it is probative to the question of whether the witness is 107 00:06:32,722 --> 00:06:35,002 honest, truthful, and believable. 108 00:06:35,379 --> 00:06:39,429 I also want to note here that extrinsic evidence is never 109 00:06:39,429 --> 00:06:44,216 admissible to attack or support such instances of a witness's credibility. 110 00:06:44,427 --> 00:06:46,947 Testimony alone is admissible here. 111 00:06:47,775 --> 00:06:51,825 So let's take a look at a hypo to give us a sense of how some of these 112 00:06:51,825 --> 00:06:54,184 rules play out during testimony. 113 00:06:54,457 --> 00:06:58,837 This question is adapted from the February 2016 California bar exam: 114 00:06:59,711 --> 00:07:05,716 "Mike, Sue, Pam, David and Ed worked at ACE Manufacturing Company. 115 00:07:05,921 --> 00:07:07,361 Pam was fired. 116 00:07:07,675 --> 00:07:11,469 A week later, David circulated the following email to all the 117 00:07:11,469 --> 00:07:15,309 other employees: ' I just thought you should know that Pam was 118 00:07:15,309 --> 00:07:16,929 fired because she is a thief. 119 00:07:17,047 --> 00:07:22,161 Sue caught her stealing money from the petty cash drawer after Pam's affair with 120 00:07:22,161 --> 00:07:25,375 Mike ended.' A month later, Mike died. 121 00:07:25,783 --> 00:07:28,153 Pam sued David for defamation. 122 00:07:28,580 --> 00:07:33,290 At trial, Pam testified that although it is true that she was fired, the remaining 123 00:07:33,320 --> 00:07:35,540 contents of the email were false. 124 00:07:35,929 --> 00:07:41,189 In defense, David called Sue, who testified that she had caught Pam stealing 125 00:07:41,249 --> 00:07:47,003 $300 from the petty cash drawer and that when Sue confronted Pam and accused her of 126 00:07:47,003 --> 00:07:49,569 taking the money, Pam simply walked away. 127 00:07:49,888 --> 00:07:53,668 David himself testified that the contents of the email were true. 128 00:07:54,183 --> 00:07:59,103 Is Sue's testimony that she caught Pam stealing $300 admissible?" 129 00:07:59,788 --> 00:08:00,838 So, what do you think? 130 00:08:01,176 --> 00:08:05,478 Remember that evidence of a witness's bad behavior is not typically admissible. 131 00:08:05,743 --> 00:08:09,180 Smearing the witness does not help the adjudicator get to 132 00:08:09,180 --> 00:08:11,020 the truth of the claim at hand. 133 00:08:11,283 --> 00:08:15,183 But some evidence of bad behavior is relevant to truthfulness. 134 00:08:15,273 --> 00:08:20,303 So let's review the rules we've learned so far: bias, character for truthfulness, 135 00:08:20,363 --> 00:08:22,733 and specific instances of conduct. 136 00:08:22,951 --> 00:08:24,841 Do any of those apply here? 137 00:08:25,596 --> 00:08:31,625 Sue's testimony about witnessing Pam steal and her lack of reaction don't really go 138 00:08:31,625 --> 00:08:34,209 to Pam's bias, so we can skip that one. 139 00:08:34,668 --> 00:08:36,828 What about character for truthfulness? 140 00:08:37,086 --> 00:08:40,923 To review, a witness's credibility may be attacked by the introduction 141 00:08:41,029 --> 00:08:45,015 of two things: ( 1) reputation testimony about the witness's 142 00:08:45,015 --> 00:08:49,766 character for truthfulness or untruthfulness; or (2) opinion testimony. 143 00:08:50,219 --> 00:08:54,120 Sue's testimony definitely touches on Pam's character for truthfulness. 144 00:08:54,333 --> 00:08:58,570 Both David and Sue see Pam as dishonest, and they base that on 145 00:08:58,570 --> 00:09:00,200 their prior experiences with her. 146 00:09:00,747 --> 00:09:04,918 Remember, though, now that character testimony has been introduced against 147 00:09:04,918 --> 00:09:10,099 Pam, she has the opportunity to introduce positive character evidence about herself. 148 00:09:10,307 --> 00:09:12,677 So she might want to take that opportunity. 149 00:09:13,128 --> 00:09:17,493 Alright, let's look at the last rule: specific instances of conduct. 150 00:09:17,831 --> 00:09:21,071 I think this is another way the court could admit this testimony. 151 00:09:21,294 --> 00:09:26,463 The specific instance of Pam's theft is admissible, even though it is prejudicial 152 00:09:26,493 --> 00:09:30,697 because the conduct is probative of her character for truthfulness. 153 00:09:31,037 --> 00:09:34,923 Stealing money is taking something for your own and lying about it, or 154 00:09:34,953 --> 00:09:38,725 failing to tell the truth about the fact that you did that, so it impacts 155 00:09:38,725 --> 00:09:40,795 a person's character for truthfulness. 156 00:09:41,061 --> 00:09:45,654 In this case, the court would be correct to admit this testimony about Pam. 157 00:09:45,821 --> 00:09:49,271 But again, she may be able to introduce evidence of her good and 158 00:09:49,271 --> 00:09:53,534 truthful character, if any exists, to combat this impugning evidence. 159 00:09:54,216 --> 00:09:57,306 So I hope that hypo helped solidify some of those rules. 160 00:09:57,562 --> 00:10:01,582 With those covered, we now have the murkiest of the character 161 00:10:01,582 --> 00:10:04,575 impeachment rules: prior convictions. 162 00:10:04,913 --> 00:10:08,066 Evidence of a prior conviction may be admitted in certain 163 00:10:08,066 --> 00:10:09,991 instances, but not always. 164 00:10:10,235 --> 00:10:14,215 The key is remembering which type of prior convictions may be 165 00:10:14,215 --> 00:10:16,465 admitted to impeach a witness. 166 00:10:16,773 --> 00:10:23,259 First, prior crimes, whether felonies or misdemeanors, that involved dishonesty are 167 00:10:23,259 --> 00:10:25,720 always admissible to impeach a witness. 168 00:10:25,971 --> 00:10:29,733 Again, we're looking at whether a witness can be trusted. 169 00:10:30,030 --> 00:10:33,852 If they have a prior conviction for a crime related to honesty, that 170 00:10:33,852 --> 00:10:35,672 is important information to know. 171 00:10:36,090 --> 00:10:41,882 I do want to point out here, though, that theft crimes are not crimes of dishonesty. 172 00:10:42,055 --> 00:10:45,895 So try to keep that in mind when analyzing whether a witness can 173 00:10:45,895 --> 00:10:47,995 be impeached with a prior crime. 174 00:10:48,363 --> 00:10:52,400 Apart from the very specific circumstances of misdemeanors involving 175 00:10:52,400 --> 00:10:56,973 dishonesty, misdemeanors are not admissible to impeach a witness. 176 00:10:57,212 --> 00:10:59,372 Some other felonies, however, are. 177 00:10:59,699 --> 00:11:03,809 Remember, a felony is a crime punishable by death or by a 178 00:11:03,809 --> 00:11:05,939 sentence of more than one year. 179 00:11:06,332 --> 00:11:11,274 Evidence about felonies that do not involve dishonesty may be admissible, but 180 00:11:11,304 --> 00:11:14,248 only if the witness is not the defendant. 181 00:11:14,608 --> 00:11:20,274 This permissability, however, subject to Rule 403 exclusions – most relevant 182 00:11:20,304 --> 00:11:24,481 being whether the probative value of the evidence is substantially outweighed 183 00:11:24,511 --> 00:11:27,031 by the danger of unfair prejudice. 184 00:11:27,254 --> 00:11:31,458 Be sure to review Rule 403 exclusions if you're not familiar with them. 185 00:11:31,708 --> 00:11:36,011 We've been talking about felonies – criminal cases – but the rule I just 186 00:11:36,011 --> 00:11:38,462 stated also applies to civil cases. 187 00:11:38,800 --> 00:11:44,218 An opposing party may submit impeachment evidence regarding a civil case not 188 00:11:44,218 --> 00:11:48,859 involving dishonesty, but only if the witness is not a defendant and, of 189 00:11:48,859 --> 00:11:52,253 course, subject to Rule 403 exceptions. 190 00:11:52,950 --> 00:11:55,320 But what if the witness is the defendant? 191 00:11:55,684 --> 00:11:59,978 In that case, evidence is limited to criminal cases, and it is only 192 00:11:59,978 --> 00:12:04,130 admissible if the probative value outweighs any prejudicial effect. 193 00:12:04,415 --> 00:12:08,139 Now, that is a bit of a squishy rule, so be sure you carefully analyze both 194 00:12:08,139 --> 00:12:12,646 the potential probative value and potential prejudicial effect on an exam. 195 00:12:13,500 --> 00:12:16,650 It is important to note that there are two exceptions to the 196 00:12:16,650 --> 00:12:18,480 admission of prior convictions. 197 00:12:18,704 --> 00:12:22,244 The first is commonly known as the 10-year exception. 198 00:12:22,507 --> 00:12:27,076 If 10 years have passed from the later of the date of conviction or the 199 00:12:27,076 --> 00:12:32,499 release from jail, the conviction is not admissible unless (1) its probative 200 00:12:32,499 --> 00:12:37,679 value outweighs its prejudicial effect; and (2) the proponent provides reasonable 201 00:12:37,679 --> 00:12:39,899 written notice to the adverse party. 202 00:12:40,346 --> 00:12:42,146 Now you may notice a trend here. 203 00:12:42,392 --> 00:12:46,974 In considering impeachment evidence, the court is very concerned about weighing 204 00:12:46,974 --> 00:12:49,554 probative value versus prejudicial effect. 205 00:12:49,704 --> 00:12:54,018 The 10-year exception stands out, however, in that it requires reasonable written 206 00:12:54,018 --> 00:12:58,338 notice to be given to the opposing party if the evidence is going to be admitted. 207 00:12:59,180 --> 00:13:02,330 And don't worry, I haven't forgotten the second exception. 208 00:13:02,668 --> 00:13:06,524 The other exception to the of prior convictions regards a conviction 209 00:13:06,554 --> 00:13:08,249 that has been pardoned or annulled. 210 00:13:08,658 --> 00:13:12,912 Evidence of a conviction is not admissible if it's been pardoned or 211 00:13:12,912 --> 00:13:15,262 annulled based on a finding of innocence. 212 00:13:15,660 --> 00:13:17,130 Well, that makes sense, right? 213 00:13:17,401 --> 00:13:20,371 Why should a conviction be admissible if the witness did 214 00:13:20,371 --> 00:13:21,901 not actually commit the crime? 215 00:13:22,228 --> 00:13:25,662 That conviction has no probative value – it doesn't tell you 216 00:13:25,712 --> 00:13:27,492 anything helpful about the witness. 217 00:13:28,228 --> 00:13:32,206 To help us drill these rules into memory, let's look at another hypo. 218 00:13:32,495 --> 00:13:37,154 This hypo is adapted from the February 2020 California bar exam, so like 219 00:13:37,154 --> 00:13:41,377 the prior one, it's a good example of something you might see on a real exam. 220 00:13:41,677 --> 00:13:44,679 I've shortened it a bit to focus on the issues at hand. 221 00:13:44,986 --> 00:13:45,586 Ready? 222 00:13:46,311 --> 00:13:49,781 "Des is on trial for possession with intent to distribute 223 00:13:49,781 --> 00:13:52,001 hundreds of pounds of cocaine. 224 00:13:52,262 --> 00:13:56,361 At trial, the prosecution called Carol, a severed co-defendant who had 225 00:13:56,361 --> 00:14:00,701 pleaded guilty to reduced charges in exchange for testifying against Des. 226 00:14:01,352 --> 00:14:05,693 Carol testified that she had acted as a distributor for a ring of cocaine dealers. 227 00:14:05,950 --> 00:14:10,385 In that role, Carol had sold hundreds of pounds of cocaine to 228 00:14:10,385 --> 00:14:14,968 many people, including Des, during the period of the charged crime. 229 00:14:15,209 --> 00:14:18,717 Carol further testified that Des agreed to sell cocaine. 230 00:14:19,364 --> 00:14:23,438 During cross-examination, Des's attorney introduced evidence that Carol had 231 00:14:23,438 --> 00:14:27,653 received a reduced sentence in exchange for agreeing to testify against Des. 232 00:14:27,992 --> 00:14:31,545 The prosecution objected, the court allowed the evidence to be admitted. 233 00:14:32,091 --> 00:14:35,146 Next, Des took the stand in his own defense. 234 00:14:35,437 --> 00:14:40,724 On cross-examination, Pete asked Des if it was true that eleven years earlier, he 235 00:14:40,724 --> 00:14:43,005 had been convicted of forgery, a felony. 236 00:14:43,316 --> 00:14:45,026 Des answered, ' Yes.' 237 00:14:45,523 --> 00:14:47,443 Did the court properly admit: 238 00:14:47,489 --> 00:14:51,465 1. Evidence of Carol's agreement with the prosecutor?, and 239 00:14:51,525 --> 00:14:54,975 2. Evidence of Des's prior conviction for forgery?" 240 00:14:55,817 --> 00:14:57,887 Let's take each question one at a time. 241 00:14:58,209 --> 00:14:59,109 What do you think? 242 00:14:59,429 --> 00:15:02,566 Was it proper for the court to admit evidence that Carol cut a deal 243 00:15:02,566 --> 00:15:06,486 with the prosecution for a reduced sentence in exchange for her testimony? 244 00:15:06,884 --> 00:15:11,145 Remember all the way back at the beginning of this episode, when we covered bias? 245 00:15:11,404 --> 00:15:15,937 You might remember me saying that a witness's bias is always fair game. 246 00:15:16,150 --> 00:15:18,280 It's always relevant for impeachment. 247 00:15:18,641 --> 00:15:21,551 Do you think Carol's deal might make her biased? 248 00:15:21,768 --> 00:15:26,062 Of course, we don't know if her testimony is truthful or not, but I think we can 249 00:15:26,062 --> 00:15:30,442 certainly argue that this agreement raises some questions about her impartiality. 250 00:15:30,619 --> 00:15:33,859 She would not get a deal from the prosecution for testifying 251 00:15:33,859 --> 00:15:35,087 that Des was innocent. 252 00:15:35,297 --> 00:15:39,527 Her reduced sentence relies on her testimony in support of the prosecution, 253 00:15:39,651 --> 00:15:41,451 which is arguing Des's guilt. 254 00:15:41,803 --> 00:15:45,560 For that reason, I think this evidence is pretty squarely admissible. 255 00:15:46,390 --> 00:15:48,100 Now, what about the second question? 256 00:15:48,370 --> 00:15:52,060 Did the court properly admit Des's prior conviction for forgery? 257 00:15:52,323 --> 00:15:55,953 The prosecution clearly wants to use this conviction to impeach 258 00:15:55,953 --> 00:16:00,874 Des, to show that Des is a liar and his testimony can not be trusted. 259 00:16:01,283 --> 00:16:06,457 Now think back: when is the opposing party able to introduce evidence that impugns 260 00:16:06,457 --> 00:16:08,620 the witness's character for truthfulness? 261 00:16:08,915 --> 00:16:10,865 I see two that are relevant here. 262 00:16:11,196 --> 00:16:14,556 First, a party may introduce evidence of a prior conviction 263 00:16:14,596 --> 00:16:16,096 that relates to dishonesty. 264 00:16:16,349 --> 00:16:19,619 Remember, prior crimes that involve dishonesty are always 265 00:16:19,619 --> 00:16:21,683 admissible to impeach a witness. 266 00:16:21,847 --> 00:16:24,877 And while theft crimes are not crimes of dishonesty, 267 00:16:24,982 --> 00:16:26,932 forgery is something different. 268 00:16:27,220 --> 00:16:32,006 If Des committed forgery, he was holding himself out to be someone he was not 269 00:16:32,112 --> 00:16:34,443 or have permission he did not have. 270 00:16:34,603 --> 00:16:35,443 He lied. 271 00:16:35,675 --> 00:16:38,525 This is intrinsically a crime of dishonesty. 272 00:16:38,699 --> 00:16:42,869 So I think it is admissible as a prior conviction related to dishonesty. 273 00:16:43,652 --> 00:16:46,832 Now, second, was this also a proper impeachment via 274 00:16:46,832 --> 00:16:48,662 evidence of a prior bad act? 275 00:16:49,012 --> 00:16:52,589 In a criminal case, a prosecutor can ask the defendant about bad acts 276 00:16:52,589 --> 00:16:56,696 committed in the past that reflects the defendant's character for truthfulness. 277 00:16:56,958 --> 00:17:00,858 As we just discussed, forgery is exactly the type of behavior 278 00:17:00,908 --> 00:17:03,959 that calls into question a person's honesty and truthfulness. 279 00:17:04,241 --> 00:17:08,179 Thus, this evidence is properly admitted to impeach Des and show 280 00:17:08,179 --> 00:17:10,223 that he was not a credible witness. 281 00:17:10,938 --> 00:17:11,688 Now, wait. 282 00:17:11,778 --> 00:17:15,948 You might be thinking, "Doesn't an exception apply here? I thought crimes 283 00:17:15,948 --> 00:17:20,605 committed more than 10 years ago weren't admissible as prior convictions." Well, if 284 00:17:20,605 --> 00:17:22,735 you caught that, excellent issue spotting. 285 00:17:23,198 --> 00:17:27,309 As a refresher, if 10 years have passed from the date of conviction or 286 00:17:27,309 --> 00:17:31,624 the release from jail, whichever is later, the conviction is not admissible 287 00:17:31,624 --> 00:17:36,636 unless (1) its probative value outweighs its prejudicial effect, and 288 00:17:36,636 --> 00:17:41,218 (2) the proponent provides reasonable written notice to the adverse party. 289 00:17:41,522 --> 00:17:45,932 We need to analyze a couple of things to understand whether this exception applies. 290 00:17:46,233 --> 00:17:51,124 First, it's clear from the question that Des's conviction took place 11 years ago. 291 00:17:51,396 --> 00:17:52,656 But did he go to prison? 292 00:17:52,996 --> 00:17:55,128 If so, when was he released? 293 00:17:55,363 --> 00:17:58,393 We don't know the answer; the prompt does not tell us. 294 00:17:58,586 --> 00:18:03,469 So when answering this question on an exam, it is important to note that if Des 295 00:18:03,629 --> 00:18:09,095 went to jail and was released less than 10 years ago, this exception does not apply. 296 00:18:09,421 --> 00:18:12,811 But since we don't know that, we need to finish the analysis, 297 00:18:13,059 --> 00:18:15,249 presuming the exception does apply. 298 00:18:15,357 --> 00:18:18,998 We need to weigh whether the probative value of the evidence outweighs its 299 00:18:18,998 --> 00:18:23,144 prejudicial effect and whether proper notice was given to Des's attorney. 300 00:18:23,505 --> 00:18:26,927 Again, we don't know the answer to the second prong, so we'll just 301 00:18:26,927 --> 00:18:28,757 flag it as an issue in our answer. 302 00:18:28,960 --> 00:18:32,950 If proper notice was not given, the evidence is not admissible. 303 00:18:33,500 --> 00:18:35,060 What about the first prong, though? 304 00:18:35,333 --> 00:18:38,348 Do you think the probative value of Des's forgery conviction 305 00:18:38,378 --> 00:18:40,208 outweighs its prejudicial effect? 306 00:18:40,708 --> 00:18:45,508 Evidence that Des was dishonest is quite probative in determining his credibility. 307 00:18:45,811 --> 00:18:50,230 On the other hand, it is quite prejudicial, and doing one dishonest thing 308 00:18:50,260 --> 00:18:55,021 over a decade ago with no convictions since may not be very strong evidence 309 00:18:55,021 --> 00:18:57,013 that Des remains a dishonest person. 310 00:18:57,428 --> 00:19:00,728 I think you can go both ways here, but I think the court would lean 311 00:19:00,728 --> 00:19:02,108 toward admitting the evidence. 312 00:19:02,483 --> 00:19:05,833 In all, I would argue the court properly admitted both pieces of 313 00:19:05,833 --> 00:19:07,993 evidence for impeachment purposes. 314 00:19:08,848 --> 00:19:12,169 I know it's a lot, but try not to get overwhelmed by all the 315 00:19:12,169 --> 00:19:14,128 possibilities and iterations. 316 00:19:14,294 --> 00:19:17,834 Just take each test one step at a time, and make sure you're 317 00:19:17,834 --> 00:19:19,514 quite familiar with the rules. 318 00:19:19,887 --> 00:19:24,041 Evidence questions always have a lot going on and a lot to keep track of, 319 00:19:24,167 --> 00:19:28,847 so being able to quickly spot and apply the rules will go a long way in 320 00:19:28,847 --> 00:19:31,307 helping you write a solid exam answer. 321 00:19:31,922 --> 00:19:35,505 And that's all the time we have for today, but we'll be back soon with 322 00:19:35,505 --> 00:19:37,815 part two of impeachment evidence. 323 00:19:38,072 --> 00:19:41,762 If you enjoyed this episode of the Law School Toolbox podcast, please 324 00:19:41,762 --> 00:19:45,242 take a second to leave a review and rating on your favorite listening app. 325 00:19:45,353 --> 00:19:46,673 We'd really appreciate it. 326 00:19:46,673 --> 00:19:49,073 And be sure to subscribe so you don't miss anything. 327 00:19:49,400 --> 00:19:52,670 If you have any questions or comments please don't hesitate to reach out to 328 00:19:52,670 --> 00:19:58,042 Lee or Alison at lee@lawschooltoolbox.com or alison@lawschooltoolbox.com. 329 00:19:58,203 --> 00:20:01,053 Or you can always contact us via our website contact 330 00:20:01,053 --> 00:20:03,053 form at LawSchoolToolbox.com. 331 00:20:03,453 --> 00:20:05,433 Thanks for listening, and we'll talk soon!