Beckman Evidence Chapter 12
Beckman Evidence Chapter 12
Beckman Evidence Chapter 12
Witnesses: Competency,
Examination, and Impeachment
A. Witness Competency
A fact witness is someone who
testifies as to what she saw or otherwise perceived about the events
underlying a case. Historically, the
common law deemed a number of fact
witnesses incompetent to testify for
fear they would lie under oath. These
witnesses included atheists, agnostics,
convicted felons, parties to the case
and their spouses, persons with an
interest in the case, children and the
mentally ill. As might be expected,
these common law limitations often
had the consequence of preventing the
witnesses with the most knowledge of
the case from testifying.
The Federal Rules of Evidence have largely eliminated common law witness
incompetency. Most of these former disqualifications, such as having a felony
conviction or an interest in the case, are now only usable to attack a witnesss
credibility. In their place, Rule 601 presumes all witnesses competent to testify.
Rules 602 and 603 require testifying fact witnesses to have personal knowledge of
the facts and be willing to take an oath or affirmation to tell the truth. Despite this
fairly low witness qualification standard, competency challenges do remain.
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exploded, making it difficult for them to see. Roach switched places with Jackson
and began driving. Stewart threw the shotgun out of the car and, after a bit, fled
with the stolen money.
Minutes later a county deputy sheriff, alerted to the car description by radio,
stopped Roach and Jackson and asked them to get out of the car. After they had
exited, the deputy noticed a large red stain on the cars front seat, some gloves on
the floorboard, and a white print shirt on the back seat, all in plain view through
the car windows. Roach and Jackson were placed in the police car, and before any
interrogation had begun Jackson asked the deputy, Why are you arresting us?
Roach immediately cut in, Shut up, you know why. After FBI agents arrived, the
car was towed to the police station, where it was searched and the stained parts
removed for laboratory analysis. The stain was found to contain the same chemicals used in the banks security packs.
Stewart was apprehended a month later in Baton Rouge, Louisiana. In a statement admitted into evidence at trial, he told interrogating agents that Jackson was
his girlfriend and that he had resided in Dalton, Georgia, until March 1977, when
he heard from friends that he was wanted for bank robbery.
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About three months before trial,
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Brenda Jackson received a psychiatric
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Whats That?
examination and was judged compeCompetency to stand trial in a crimitent to stand trial. She was also found
nal case requires that the defendant
to have used drugs intermittently.
have the capacity to understand the
Questioning Jacksons competence to
proceedings, consult meaningfully
with counsel, and assist in her debe a witness against his client, Roachs
fense. A competency to stand trial
attorney was given access to the psydetermination is different from a
chiatric report, and the court granted
determination of the competency of
a witness to testify at all under Rule
his request for a preliminary examina601.
tion into Jacksons current mental
state. Though Jackson had been emotionally troubled during the previous
three months and admitted using drugs on two occasions in that time, her answers
to questions by government and defense attorneys were lucid and discriminating.
The trial judge asked no questions, nor were expert witnesses employed. At the
end of the hearing, the judge declared Jackson competent to testify.
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400
have testified; the judge should have personally questioned Jackson since Rule
104 of the Federal Rules of Evidence requires him to decide preliminary questions
regarding the qualification of a person to be a witness . . . or the admissibility of
evidence.
As to the necessity of a psychiatric examination, we have held that the district
court has broad discretion in determining whether to order such examinations.
Given the earlier examination and the further preliminary hearing, there can be
no serious claim of abuse of discretion. Moreover, under the new Federal Rules of
Evidence it is doubtful that mental incompetence would even be grounds for
disqualification of a prospective witness. Rule 601 provides that (e)very person is
competent to be a witness except as otherwise provided in these rules, and
nowhere is mental competence mentioned as a possible exception. The Notes of
the House Committee on the Judiciary
state that one effect of Rule 601 is to
abolish mental capacity as a ground for
Food for Thought
rendering a person incompetent as a
Is the court saying that there is no
witness. The Advisory Committee in
such thing as a witness who is so
their Notes on the Proposed Rules took
mentally incapacitated that he is not
competent to testify? How about
a similar view, observing that the queswitnesses who are so severely detion of capacity was one particularly
lusional they cannot tell right from
suited to the jury as one of weight and
wrong? Of what value might their
testimony be to a jury?
credibility, subject to judicial authority
to review the sufficiency of the evidence.
If these views are to be rigorously adhered to, there seems no longer to be any
occasion for judicially-ordered psychiatric examinations or competency hearings
of witnesses none, at least, on the theory that a preliminary determination of
competency must be made by the district court. If the court finds the witness
otherwise properly qualified, the witness should be allowed to testify and the
defendant given ample opportunity to impeach his or her perceptions and recollections. That the court here went further and allowed the preliminary hearing
into Jacksons competence is an added ground for affirming the jurys verdict
rather than a reason to set it aside.
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Points for Discussion
a. The Trial Courts Discretion in Evaluating Witness Competency.
As Roach illustrates, appellate courts will seldom overturn a trial courts competency determination. For example, in United States v. Blankenship, 923 F.2d
401
1110, (5th Cir. 1991), the trial court decision to allow a witness to testify was
upheld, even though evidence in the record showed she was an admitted drug
addict and incarcerated felon who occasionally hallucinated and whose testimony
was confused and inconsistent with her testimony on cross-examination. When
reversals occur it is most frequently because the trial court has found a witness
incompetent. See, e.g., United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982),
reversing a trial courts determination that a witness, who had been adjudicated
insane and incompetent to stand trial in a previous criminal case, was not competent to testify. There was evidence in the record that she could remember events,
understand the oath, and communicate what she saw.
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b. Child Witnesses
Child witnesses can present challenging competency issues. Sometimes very
young children confuse fact with fantasy or are highly susceptible to adult
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suggestions. As a result, it may be difFYI
For example, a three-year old
ficult to show that a child three years
child of one of the authors asked
of age or younger is competent to testo go to New York to visit the sewers
where he believed the Teenage Mutify. When the child is between four
tant Ninja Turtles lived.
and six years of age, trial judges more
discretion to admit their testimony
because in a courtroom, as in life,
every child is unique.
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That the boy was not by reason of his youth, as a matter of law, absolutely
disqualified as a witness is clear. While no one should think of calling as a witness
an infant only two or three years old, there is no precise age which determines the
question of competency. This depends on the capacity and intelligence of the
child, his appreciation of the difference between truth and falsehood, as well as of
his duty to tell the former. The decision of this question rests primarily with the
trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend
to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the
record, the decision of the trial judge will not be disturbed on review, unless from
that which is preserved it is clear that it was erroneous. These rules have been
settled by many decisions, and there seems to be no dissent among the recent
authorities. In Brasiers Case, 1 Leach, Crown Cas. 199, it is stated that the question was submitted to the 12 judges, and that they were unanimously of the
opinion that an infant, though under the age of seven years, may be sworn in a
criminal prosecution, provided such infant appears, on strict examination by the
court, to possess a sufficient knowledge of the nature and consequences of an
oath; for there is no precise or fixed rule as to the time within which infants are
excluded from giving evidence, but their admissibility depends upon the sense
and reason they entertain of the danger and impiety of falsehood, which is to
be collected from their answers to questions propounded to them by the
court.
These principles and authorities are decisive in this case. So far as can be
judged from the not very extended examination which is found in the record, the
boy was intelligent, understood the difference between truth and falsehood, and
the consequences of telling the latter, and also what was required by the oath
which he had taken. At any rate, the contrary does not appear. Of course, care
must be taken by the trial judge, especially where, as in this case, the question is
one of life or death. On the other hand, to exclude from the witness stand one
who shows himself capable of understanding the difference between truth and
falsehood, and who does not appear to have been simply taught to tell a story,
would sometimes result in staying the hand of justice.
We think that, under the circumstances of this case, the disclosures on the
voir dire were sufficient to authorize the decision that the witness was competent,
and therefore there was no error in admitting his testimony. These being the only
questions in the record, the judgment must be affirmed.
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Points for Discussion
a. Determining Competency of a Child Witness.
Generally, to be competent, a child witness must be able to tell the difference
between the truth and a lie and be able to remember and coherently narrate
events. What questions should a judge ask of a child to determine whether these
standards are met? How should a judge question a child witness to make certain
the child has not been influenced by others in recalling events? Can a criminal
defendant be constitutionally excluded from being present when this questioning
occurs? See Kentucky v. Stincer, 482 U.S. 730 (1987) (the Due Process Clause of
the Fifth Amendment and the Confrontation Clause of the Sixth Amendment
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404
were not violated by excluding the defendant from a hearing to determine the
competency of two child witnesses because neither girl was asked about the substantive testimony she would give at trial).
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c. Previously Hypnotized Witnesses
Should witnesses who have had their memories hypnotically refreshed be
considered competent? Put another way, does hypnotically refreshed testimony
produce truthful results? Hypnosis is a state of inner absorption, focused attention and diminished peripheral awareness which bypass the censor of the mind.
It has been suggested that there are
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several problems inherent in the use of
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hypnosis. First, hypnotized subjects
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[S]ome researchers believe that
are in a state of hyper-suggestibility
hypnosis can be used by individuals to the degree they possess a
and are often highly motivated to
hypnotic trait, much as they have
please, which means they may fabritraits associated with height, body
cate. Second, they may have pseudosize, hair color, etc. Other profesmemories of facts they did not experisionals who study and use hypnosis
believe there are strong cognitive
ence but which were suggested conand interpersonal components that
sciously or unconsciously by the hypaffect an individuals response to
notist. If hypnotically refreshed testihypnotic environments and suggestions. Recent research supports the
mony is at all unreliable, and experts
view that hypnotic communication
differ as to whether this is the case,
and suggestions effectively change
should there be a per se rule excluding
aspects of the persons physiological
and neurological functions. See
all hypnotically refreshed testimony? If
www.asch.net.
such a rule excluded the testimony of a
defendant in his own criminal case,
would it be constitutional?
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Rock v. Arkansas
Supreme Court of the United States
483 U.S. 44 (1987)
Justice BLACKMUM delivered the opinion of the Court.
[Petitioner was charged with manslaughter for shooting her husband. In
order to refresh her memory as to the precise details of the shooting, she underwent hypnosis by a trained neuropsychologist on two occasions. These sessions
were tape recorded. After hypnosis, she was able to recall that during the shooting, her gun had misfired, which was corroborated by a defense experts testimony.
However, the trial court ruled that under Arkansas law, no hypnotically refreshed
testimony was admissible and limited petitioners testimony to a reiteration of
statements she had made prior to hypnosis.]
Petitioners claim that her testimony was impermissibly excluded is bottomed
on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a
criminal case has the right to take the witness stand and to testify in his or her own
defense. This, of course, is a change from the historic common-law view, which
was that all parties to litigation, including criminal defendants, were disqualified
from testifying because of their interest in the outcome of the trial. . . .
The question now before the Court is whether a criminal defendants right to
testify may be restricted by a state rule that excludes her posthypnosis testimony.
This is not the first time this Court has faced a constitutional challenge to a state
rule, designed to ensure trustworthy evidence, that interfered with the ability of a
defendant to offer testimony. In Washington v. Texas, 388 U.S. 14 (1967), the Court
was confronted with a state statute that prevented persons charged as principals,
accomplices, or accessories in the same crime from being introduced as witnesses
for one another. The statute, like the original common-law prohibition on testimony by the accused, was grounded in a concern for the reliability of evidence
presented by an interested party. [The court held the statute unconstitutional
under the Sixth Amendment].
Just as a State may not apply an arbitrary rule of competence to exclude a
material defense witness from taking the stand, it also may not apply a rule of
evidence that permits a witness to take the stand, but arbitrarily excludes material
portions of his testimony. In Chambers v. Mississippi, 410 U.S. 284 (1973), the
Court invalidated a States hearsay rule on the ground that it abridged the defendants right to present witnesses in his own defense.
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In conjunction with its reliance on broad principles that have little relevance
here, the Court barely concerns itself with the recognition, present throughout
our decisions, that an individuals right to present evidence is subject always to
reasonable restrictions. . . . Surely a rule designed to exclude testimony whose
trustworthiness is inherently suspect cannot be said to fall outside this description.
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Points for Discussion
a. The Balancing Test in Rock.
Rock holds that questionably reliable evidence, such as hypnotically refreshed
testimony, when offered by a criminal defendant cannot be excluded because it
infringes impermissibly on the right of a defendant to testify on his own behalf.
Would this same logic apply to a situation where a criminal defendant wanted to
offer evidence that he had passed a polygraph test, even though polygraph results
are routinely held inadmissible because they are unreliable?
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The common law deemed atheists and agnostics incompetent to testify, reasoning that only religious witnesses who believed in a deity that punishes false testimony would testify truthfully. Even under the common law, however, that deity
need not be a Christian one; all religious sect members were viewed as competent.
Modern law, however, has not only repudiated this religious disqualification but has
also made a witnesss religious beliefs inadmissible for the purpose of bolstering or
attacking that witnesss credibility under Rule 610. Cases make a distinction, however, between using a witnesss religious beliefs to show that the witness is truthful
or untruthful (usually an inadmissible offering), and using evidence of religious
affiliation with a party in a case to show bias, (usually an admissible offering).
Non constat
ex aequo et bono
jus civile
a posteriori
410
[Witnesses Martina and Chris Benedict testified in favor of Thien in the case.
The Benedicts argud that the district court erred in excluding evidence of their
religious beliefs, offered to show that they were biased because they were
both members of Zions Endeavor, a religious group of which Thien was the
pastor.]
Under Rule 610 of the Federal Rules of Evidence, [e]vidence 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 credibility is impaired or
enhanced. However, [w]hile the rule forecloses inquiry into the religious beliefs
or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or
bias because of them is not within the prohibition. Thus disclosure of affiliation
with a church which is a party to the litigation would be allowable under the
rule. Fed.R.Evid. 610 advisory committees notes. The court admitted testimony
that the church consisted of a group of folks who met in [Thiens] basement,
about 30 people. . . . The court further admitted testimony that Chris and
Martina were members of the church of which Thien was the pastor, and that
Chris worked for a company owned by Thien and was close to Thien. This
evidence was properly admitted for the purpose of showing that Chris and
Martina may have been biased in favor of Thien through their religious affiliation
with him.
The evidence excluded by the court, however, was not probative of Martinas
and Chads bias in favor of Thien. All of the evidence cited in appellants brief as
improperly excluded under Rule 610 concerns a specific tenet of Zions Endeavor
that participation in civil litigation is in violation of biblical law. The Benedicts
proposed to introduce testimony regarding this specific tenet as the reason why
Martina and Chris were not parties to the state court wrongful death action
brought by the Benedicts, and why Chad delayed in joining that action. We fail to
see the relevance of this issue to the instant case, and we fail to see how showing
that Martina and Chris had religious reasons to decide not to join the wrongful
death action shows that they were biased witnesses in the insurance action. The
fact that Martina and Chris were members of a small religious group led by Thien,
and that met regularly in Thiens basement, was before the jury. This fact is probative of bias, and was admitted. The reasons why Martina and Chris did not join
the wrongful death action, and why Chad was late in joining, do not add to a
showing of bias, and appear to us to be an attempt to undermine Martinas and
Chriss credibility, and to prejudice the jury against them, by painting them as
religious extremists.
The district court did not abuse its discretion in excluding detailed examination of the nature of Martina and Chris Benedicts religious beliefs.
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Points for Discussion
a. Religious Beliefs to Show Bias of a Witness.
The court held that Martina and Chads religious beliefs that participating in
civil litigation was wrong were not sufficiently relevant to show their bias against
the plaintiffs for bringing the lawsuit? Do you agree? Could it not be argued that
if their religion disfavored those who brought lawsuits, they might slant their
testimony against them?
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3. Judges and Jurors as Witnesses
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a witness.
No objection need be made in order to preserve the point.1
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Federal Rule of Evidence 601 provides that all witnesses are competent to
testify except as provided in these rules. Two of those exceptions are contained
in Rule 605 and 606(a), which deem judges and jurors incompetent to testify in a
trial where they sit. This is not because their testimony would be unreliable;
rather it is because it would carry too much weight with the factfinder and because
opposing counsel might be reluctant to cross-examine them or object to their
testimony for fear of giving offense.
Effective December 1, 2011, amended Rule 606 reads as follows:
Rule 606(b) recognizes a third exception that occurs when a losing party files
a motion for new trial based upon jury misconduct. This portion of the rule
renders jurors incompetent to give affidavits or testify concerning their mental
processes or emotions that may have played a role in their verdict. For example,
Rule 606(b) would prohibit a juror from testifying that he did not understand the
term reasonable doubt in a criminal case, or that he was voting against the
plaintiff because he did not like the way she looked. There are two exclusions
from this exception. Juror affidavits and testimony may be received if extraneous
prejudicial information was improperly brought to the attention of the jury, such
as if a juror reads a newspaper article about the trial, or if an outside influence
was brought to bear upon any juror, such as if a juror was bribed. Although this
rule may have unjust results in some cases, there are several policy reasons for
such a prohibition: (1) verdict stability and (2) prevention of juror harassment.
Sometimes, however, the cost of refusal to consider egregious juror misconduct
can be very high.
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Lower [common law] courts used [an] external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be
admissible. The distinction was not based on whether the juror was literally inside
or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based
only on whether the event took place inside or outside the jury room would have
been quite unhelpful. For example, under a distinction based on location a juror
could not testify concerning a newspaper read inside the jury room. Instead, of
course, this has been considered an external influence about which juror testimony is admissible. Similarly, under a rigid locational distinction jurors could be
regularly required to testify after the verdict as to whether they heard and comprehended the judges instructions, since the charge to the jury takes place outside
the jury room. Courts wisely have treated allegations of a jurors inability to hear
or comprehend at trial as an internal matter.
Most significant for the present case, however, is the fact that lower federal
courts treated allegations of the physical or mental incompetence of a juror as
internal rather than external matters. . . . [Otherwise,] [j]urors would be
harassed and beset by the defeated party. [T]he result would be to make what was
intended to be a private deliberation, the constant subject of public investigationto the destruction of all frankness and freedom of discussion and conference. . . .
There is little doubt that postverdict investigation into juror misconduct
would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury
system could survive such efforts to perfect it. Allegations of juror misconduct,
incompetency, or inattentiveness, raised for the first time days, weeks, or months
after the verdict, seriously disrupt the finality of the process. Moreover, full and
frank discussion in the jury room, jurors willingness to return an unpopular verdict, and the communitys trust in a system that relies on the decisions of laypeople
would all be undermined by a barrage of postverdict scrutiny of juror conduct.
[P]etitioners argue that substance abuse constitutes an improper outside
influence about which jurors may testify under Rule 606(b). In our view the
language of the Rule cannot easily be stretched to cover this circumstance. However severe their effect and improper their use, drugs or alcohol voluntarily
ingested by a juror seems no more an outside influence than a virus, poorly
prepared food, or a lack of sleep . . . .
In light of these other sources of protection of petitioners right to a competent jury, we conclude that the District Court did not err in deciding, based on the
inadmissibility of juror testimony and the clear insufficiency of the nonjuror evi-
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Points for Discussion
a. Non-Juror Testimony.
Would non-juror testimony about collective jury intoxication be admissible
under Rule 606(b)? See United States v. Taliaferro, 558 F.2d 724 (4th Cir. 1977)
(the trial court properly considered testimony of a marshal who accompanied
jurors to a club as well as club records to show that the jurors were intoxicated
during deliberations). Why should it make a difference who testifies to the
misconduct?
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or his firm as counsel in the case. It is thought that generally, the role of an
advocate and that of a witness are inconsistent, and that lawyers representing
parties in the case are more easily discredited as witnesses to the detriment of their
clients because of their interest in the lawsuit. See Model Code of Professional
Responsibility, EC 5-9 (1980).
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4. State Dead Mans Statutes
When state legislatures repealed laws that held persons with an interest in the
outcome of a case incompetent to testify, there was still a continuing concern
about interested persons testifying and possibly making up facts when a party to
the conversation or transaction was deceased. As a result, most states continued
to recognize some lesser form of what is called the Dead Mans statute, which
limits survivor testimony against the deceased in a case where the deceased is a
party. The rationale for this limitation, as explained by the common law, was that
death has closed the mouth of one party, and the law will close the mouth of the
other.
At the federal level, the Advisory
Committee to the Federal Rules of
Evidence initially proposed that Rule
601 abolish all witness incompetency
in federal court, including any federal
Dead Mans statute. Congress, however, argued that in diversity cases,
federal evidentiary law should not
override state policies in the area of
witness competency. Rule 601 was
therefore amended to provide that in a
diversity case, the competency law of
the state that supplies the rule of decision will control. Often, this means
that federal law will recognize state
Dead Man statutes.
The text of Dead Man statutes varies significantly from state to state. Most
often, it prohibits the testimony of a party or interested witness concerning any
tort, contract, transaction or communication with a decedent even though relevant
to the lawsuit. States will occasionally allow such testimony if it is corroborated.
Rule 603 requires that witnesses either take an oath or affirm to tell the truth
before testifying. The difference between an oath and an affirmation is that an
oath requires swearing to a divine power whereas an affirmation does not. The
Advisory Committee Note to this rule
states that it is designed to afford the
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flexibility required in dealing with reliFYI
Normally, a witness is required
gious adults, atheists, conscientious
to swear or affirm that she will
objectors, mental defectives, and chiltell the truth, the whole truth, and
nothing but the truth. In the audren. In either case, the oath or affirthors courtroom experience, this is a
mation must be worded so as to
promise that is unfortunately broken
impress on the mind of the witness a
all too often.
duty to speak the truth. In other
words, some sort of solemn pledge is
required.
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returns in 1953. A wheel that did not squeak, Fowlers practices at last attracted
Revenues notice in time to result in his indictment for willful failure to file returns
for the years 1971-75. During the investigation, he cooperated with investigating
revenue agents no further than by providing them with partial records for the
years in question. A trial at which the government employed the bank-deposits
mode of proof resulted in his conviction on all counts, and he appeals.
Fowler, who conducted his own defense at trial but is represented by counsel
here, advances seven points of error. Six present little of merit and may be dealt
with rather briefly, but the seventh is of slight difficulty. Upon a careful consideration of all, however, we affirm his convictions. . . .
Fowler next complains that the court erred in refusing to allow him to testify
after he refused either to swear or affirm that he would tell the truth or submit to
cross-examination. At one point in their extended colloquy on the point, the
judge offered to accept the simple statement, I state that I will tell the truth in my
testimony. Fowler was willing to do no more than laud himself in such remarks
as, I am a truthful man, and I would not tell a lie to stay out of jail. Rule 603,
Federal Rules of Evidence, is clear and simple: Before testifying, every witness
shall be required to declare that he will testify truthfully, by oath or affirmation . .
. . No witness has the right to testify but on penalty of perjury and subject to
cross-examination. This contention is frivolous. . . .
We cannot doubt that Fowler has derived substantial financial benefit from a
long refusal to carry his share of the common burdens of citizenship. Sad to say,
for he is a man no longer young, he must now respond not only in currency but
in another coin: incarceration. Counsels efforts on his behalf are commendable,
but they came too late.
Affirmed.
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Points for Discussion
a. The Flexibility of the Oath or Affirmation.
In United States v. Looper, 419 F.2d
1405, 1407 n.4 (4th Cir. 1969), the
court remarked that English courts
have permitted Chinese to break a
saucer, a Mohammedan to bow before
the Koran and touch it to his head and
a Parsee to tie a rope around his waist
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A Parsee is a member of a
Zoroastrian community based
primarily in India.
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to qualify them to tell the truth. Why, then, was it not sufficient in Fowler for the
defendant to state that he was a truthful man and would not lie to stay out of jail
as an alternative to taking an oath or giving an affirmation?
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b. The Personal Knowledge Requirement
Rule 602. Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not consist of
the witness own testimony. This rule is subject to the provisions of Rule 703,
relating to opinion testimony by expert witnesses.1
Rule 602, which requires a fact witness to have personal knowledge of the
subject matter of his testimony, is not a rule of competency. Competency refers to
the qualification of a person to be a witness at all; whereas, a witnesss lack of
personal knowledge does not generally disqualify him from being a witness.
Rather, it limits the scope of his testimony.
What does having personal knowledge mean? Generally, it means knowledge
perceived by the physical senses, such as sight, hearing, touch, smell or taste or is
a reasonable inference therefrom. For example in United States v. Santana, 342
F.3d 60 (1st Cir. 2003), it was found proper for the trial court to admit a lay witnesss testimony that a package contained marijuana after he smelled it because he
was familiar with the smell of marijuana through his work. The requirement of
personal knowledge is one of conditional relevance under Rule 104(b). That is, if
Effective December 1, 2011, amended Rule 602 reads as follows:
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McCrary-El v. Shaw
U.S. Court of Appeals for the Eighth Circuit
992 F.2d 809 (8th Cir. 1993)
Morris Sheppard ARNOLD, Circuit Judge.
Appellant Jerry McCrary-El is currently serving a life sentence plus 35 years
in Farmington, Missouri (FCC), for assault with intent to kill with malice aforethought, first-degree arson, and carrying a concealed weapon. He claims that
correctional center employees used excessive force against him in violation of 42
U.S.C. 1983. After a three-day trial, the Hon. David D. Noce presiding, the jury
found for the officers. McCrary-El filed a motion for a new trial, which was denied,
and this appeal followed.
McCrary-El was housed in the administrative segregation wing of FCC, which
holds those inmates considered to be especially dangerous, violent, and aggressive. The appellees/officers were operating pursuant to standard FCC policy that
requires two or more officers to be present when any cell in that housing wing is
being opened. McCrary-El alleges that he was housed in a one-man cell and the
officers tried to force him to take a cell-mate, which he refused to do. He claims
that the officers grabbed him around the legs, arm, head, and neck and that they
picked him up and slammed him onto the concrete floor of the cell, thus injuring
his back, shoulders, and neck. He further asserts that appellee Courtney began
punching him in the side while Mills held him in a headlock and began twisting
his neck. McCrary-El states that he was placed in handcuffs and leg shackles and
dragged to another cell.
The officers claim, however, that when they instructed McCrary-El to move
to the back of his cell so that his cell-mate could enter, McCrary-El refused and
remained in the cell doorway. They assert that McCrary-El shoved Officer Shaw as
soon as the cell door was opened, and they therefore entered the cell immediately
_______________
421
422
The following Logic Map illustrates some basic principles of Rule 602:
Premise
A witness may not testify unless he or she has
personal knowledge of the matter.
Rule 602
Low Threshold
Testimony should not be excluded for lack of personal
knowledge unless no reasonable juror could believe that the
witness had the ability and opportunity to perceive the event
that he testifies about.
U.S. v. Franklin, 415 F.3d 537, 549 (6th Cir. 2005)
Reasonable Inferences
. . .[P]ersonal knowledge may include reasonable inferences
[but] those inferences must be grounded in observation or
other first-hand personal experience.
Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003)
Practice Pointer
A witnesses at trial will sometimes
testify that a particular fact occurred,
or she learned that a fact occurred
from her investigation, even though
she has no personal knowledge
of it. The opponent of the witness
should take special care to determine
whether she was told about the fact,
in which case her testimony would
be hearsay, or whether she observed
or inferred the fact from her five
senses. Even though the witness is
otherwise in the middle of testifying, the opponent should ask the
judge if he can immediately question
the witness to determine whether
the witness has sufficient personal
knowledge for the purpose of objection. This is known as taking the
witness on voir dire.
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B. Witness Examination
After opening statement comes
the presentation of witness testimony.
The party with the overall burden of
proof in the case presents witnesses
firstthe prosecution in a criminal
case and almost always the plaintiff in
a civil case.
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If the plaintiffs claim in a civil
case has been settled, dismissed,
or there has been a judgment as a
matter of law, but the defendants
counter-claim remains, the defendant will present his case first.
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Generally, direct examination
refers to the questioning of a
witness who is called by a lawyer to
the witness stand to testify, assuming the witness is friendly or at least
not hostile towards the lawyers case.
When the lawyer calls a witness who
is hostile, she may ask the courts
permission to treat the witness as
hostile, which allows her to question
the witness as if on cross-examination, i.e., lead the witness. See Rule
611(c) below.
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1. Direct Examination
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by the court. The court shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited
to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading Questions should not be used on the
direct examination of a witness except as may be necessary to develop the
witnesss testimony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an adverse party, or
a witness identified with an adverse party, interrogation may be by leading
questions.1
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the
mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter
of the direct examination and matters affecting the witnesss credibility. The court may allow inquiry
into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as
necessary to develop the witnesss testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with
an adverse party.
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thing you did that morning). Narrative responses are discouraged because they
often solicit irrelevant evidence, and they do not allow the opponent sufficient
time to object, although they may occasionally be allowed in the trial judges discretion.
Rule 611(c) also generally prohibits a lawyer from leading a witness on direct
examination, that is, asking questions that suggest the answer the witness should
give. For example, Wasnt it cold outside on the day of the accident? would be
a leading and objectionable question on direct examination. Non-leading questions are those that do not suggest the answer. Most non-leading questions begin
with the words, who, what,
where, when, why, and how.
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What was the weather like on the day
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Rule 611(c) is, however, phrased
of the accident? would be a permissito allow the trial court discretion
ble non-leading question.
to permit a lawyer to lead a witness
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A. I was facing Main Street. Fifth Street crossed Main Street to my right.
Q. What, if anything, was blocking your view?
A. Nothing was blocking my view.
Q. What time was it when the accident occurred?
A. About 10 a.m.
Q. Now lets talk about the automobile collision you saw. When did you first see
the plaintiff?
A. I saw him when I got to the intersection.
Q. Where were you when you saw him?
A. I was facing north, walking on Main Street.
Q. What direction was he traveling?
A. From North to South on 5th Street, coming from straight ahead of me, about
100 feet from the intersection.
Q. When did you first see the defendant?
A. He was headed east on Main Street, about 200 feet from the intersection.
Q. What did you see next?
A. The defendant was approaching the intersection and wasnt slowing down. He
had the red light.
Q. How do you know he had the red light?
A. I saw it because the cross-walk sign said I could walk, but he wasnt stopping.
So I looked carefully to see what color his light was.
Q. So, after you saw the defendant had the red light and saw him speeding toward
the intersection, what happened next?
A. The defendant kept coming toward the intersection and then finally slammed on
his brakes, but it was too late. He ran into the plaintiffs car.
Q. Where was the plaintiffs car at the time the defendant hit him?
A. In the middle of the intersection. He had the green light at the time. . . .
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2. Cross-Examination
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In the famous words of Wigmore,
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cross-examination is the greatest
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John Henry Wigmore was an
engine ever invented for discovery of
American jurist and expert in
the law of evidence. He was born in
truth. 5 J. Wigmore, Evidence 1367,
1863 and died in 1943. Wigmores
p. 32 (J. Chadbourn rev. 1974)). From
most famous work was entitled
a practicing lawyers standpoint, it is
Treatise on the Anglo-American
System of Evidence in Trials at Comthe means by which he can attack the
mon Law, customarily known as
credibility of a witness, diminish any
Wigmore on Evidence. He was inharmful effect of the witnesss direct
strumental establishing the common
law rules of evidence, and his Treatestimony, and obtain information that
tise, originally published in 1904, is
may be favorable to the cross-examinoften quoted.
er. All of these goals are made attainable because Rule 611(c) permits a
cross-examiner to use leading questions that allow him to direct the questioning of a witness effectively and press a
less than friendly witness into admissions.
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that such questioning was beyond the scope of direct, but the appellate court
found to the contrary. See also United States v. Roberts, 14 F.3d 502 (10th Cir.
1993) (the prosecution was permitted to cross-examine a defendant as to his ability to direct drug sales during the time period surrounding his arrest because the
defendant had testified he was not rational when he was arrested).
429
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Q: So late one evening on a dark night, this person came up from behind you,
abruptly snatched your briefcase, and then immediately ran away, so that you only
saw his face, if at all, for only a split second, right?
A: Yes. But
Q: Thank you, no further questions.
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Q: Officer, you arrested the defendant for suspicion of drunk driving nearly nine
months ago, correct?
A. Yes.
Q. During the last nine months, you have made over two hundred traffic stops of
drivers suspected of driving under the influence, right?
A: Thats about right.
Q: Now for each of those stops, about half of the time you conduct a field sobriety
test, and the rest of the time you do not, is that right?
A: Yeah.
Q: You did not write down whether you gave a test in this case, did you?
A: No. It may not be in the report, but I remember I gave him a test.
Q: You also do not remember which type of test you supposedly gave, do you?
A. No, it was some kind of field sobriety test though.
Q. Then its your testimony that you dont remember what kind of test you gave
him, isnt that correct?
A. Well I guess so.
Q. And isnt it true that you cannot tell us how my client performed on any such
test because you cant tell us what kind of test it was?
A. Well, maybe.
Q: Thank you, no more questions.
OK, alright, it says that, but you still cant prove it was me doing those searches.
431
432
Q: But it was you who conducted these searches on your computer, wasnt it?
A: Look, I know it sounds crazy, but I think I remember leaving my office for
something, I often do that at work, and then someone must have snuck back into my
office and got on my computer.
Q: Your secretary has never reported any strangers going into your office, and then
quickly leaving, when you were not there, has she?
A: Well, then, they must have had disguises, as janitors or something; plus, the
people in the office are busy, maybe they didnt notice.
Q: No further questions.
A. Well, I may have said something like that, but I dont recall.
Q. The plaintiff is your brother-in-law, correct?
A. Yes.
Q. And you live next door to the plaintiff and your sister, right?
A. Yes.
Q. You are very good terms with the plaintiff and your sister, arent you?
A. Yes.
Q. And isnt it true that you like to help the plaintiff out when you can?
A. If I can.
Q. You would be pleased to see the plaintiff receive money for his injuries in this
case, right?
A. Of course. He deserves it.
Q. In fact, the plaintiff owes you over $10,000, doesnt he?
A. I suppose.
Q. And the plaintiff hasnt even begun to pay you back, correct?
A. Thats ok, hes my brother-in-law. I know where he lives.
Q. You would receive some of your money back if the plaintiff wins this case, right?
A. Maybe.
Q. Now, you would like this jury to believe your testimony in this case, isnt that
right?
A. Of course I would. Im telling the truth.
Q. But werent you convicted of the felony of perjury just two years ago after you
testified under oath in another case?
A. Yes.
Q. And you spent 18 months in jail for this crime.
A. Yes, but I was innocent.
433
434
c. Cross-Examination Techniques
Although there are as many techniques for cross-examination as there are
trial lawyers, there are some basic rules that most follow. A skilled cross-examiner, for example, will usually make an
assertion of fact and then ask the witness to respond with a yes or no
Go Online
answer. These questions are narrowly
Professor Irving Younger has providcrafted to avoid a long witness explanaed trial lawyers with a useful list of
dos and donts of cross-examination because the more that a witness
tion entitled, The Ten Commandments
explains, the more control the crossof Cross-Examination. Included in
examiner loses over the questioning.
this list is advice to be brief and
For example, it is not a good idea to
ask short questions, use simple language, ask only leading questions,
ask a witness, Why did you go to the
know the answer before you ask the
plaintiffs house that evening? It is a
question and others. Knowledge of
better idea to ask, Didnt you go to the
these commandments should be required reading for trial lawyers. Irplaintiffs house because you wanted to
ving Youngers 10 Commandments
steal her jewelry? Questions used on
of Cross Examination (.pdf).
direct examination are generally too
open-ended for cross-examination.
Another cross-examination pitfall to avoid, which has (unfortunately)
happened to all trial lawyers at some point in their careers is asking questions
to which you do not know the answer, as the following example demonstrates:
Q. Officer, did you see my client fleeing the scene?
A. No sir, but I subsequently observed a person matching the description of the
offender, running several blocks away.
Q. Officer, who provided this description?
A. The officer who responded to the scene.
Q. A fellow officer provided the description of this so-called offender? Do you trust
your fellow officers?
A. Yes sir, with my life.
Q. Well, if you trust your officers with your life, why is it that you have locks on
your lockers at the police station?
A. You see, sir, we share the building with the court complex and sometimes
defense lawyers like yourself have been known to walk through the locker room.
435
436
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Practice Pointer
An opponent should make sure that
if a writing is used to refresh a witnesss memory, the witness should
place it face down or out of sight
when the witness testifies. Some
witnesses like to keep the writing in
view so they can continually consult
it. This increases the risk that the
witness will give answers by referring to facts in the document, not
from the witnesss own memory. It
also harms the credibility of the witness. The degree to which a witness
may continue to consult a writing
while testifying is discretionary with
the trial court.
when considerable time has passed between the event and the testimony, or the
witnesss age and capacity to relate events is questionable. Rule 612 also requires
that the opponent be given an opportunity to cross-examine the witness with the
document and introduce portions that relate to the testimony of the witness.
Doty v. Elias
U.S. Court of Appeals for the Tenth Circuit
733 F.2d 720 (10th Cir. 1984)
LOGAN, Circuit Judge.
Becky Doty, Vicky Doty, David Price, and Roy Price brought this action against
Eddy Elias under the Fair Labor Standards Act alleging that Elias violated the Acts
minimum wage and overtime compensation provisions. Plaintiffs formerly
worked as waitresses or waiters at Eddys Steakhouse, a restaurant Elias owns and
operates. None of the plaintiffs received an hourly wage or salary while working
at the restaurant. Instead, Elias permitted plaintiffs to keep all of the tips they
received. After a bench trial, the district court found that plaintiffs were Elias
employees within the meaning of the Act and that Elias had violated the Acts
minimum wage provisions.
The court awarded plaintiffs unpaid wages and prejudgment interest but
refused to award liquidated damages. Both parties appealed. The issues we
address are . . . (4) whether the trial court erred in computing the number of
hours plaintiffs worked. . .
437
438
ny. Elias argues that the Dotys testimony from the schedules was inadmissible
because it constituted hearsay under Fed.R.Evid. 801(c) and did not fall within
the hearsay exception for past recollection recorded, Fed.R.Evid. 803(5).
Plaintiffs, on the other hand, contend that the trial court properly permitted
the Dotys to refer to the schedules to refresh their memories as Fed.R.Evid. 612
permits.
After carefully reviewing the
record, we conclude that the trial court
Make the Connection
permitted the Dotys to use their notes
The hearsay exception for past recduring their testimony merely to
ollection recorded is discussed in
refresh their memories. Thus, the tesChapter 8. One of the requirements
timony was not hearsay, and we need
for this exception is that the witness
has insufficient recollection to enable
to consider whether the hearsay excephim to testify fully and accurately.
tion for past recollection recorded
applies. . . .The primary difference
between [refreshed recollection and
past recollection recorded] is the ability of the witness to testify from present
knowledge; where the witness memory is revived, and he presently recollects the
facts and swears to them, he is obviously in a different position from the witness
who cannot directly state the facts from present memory and who must ask the
court to accept a writing for the truth of its contents because he is willing to swear,
for one reason or another, that its contents are true. . . .
The trial judge enjoys broad discretion in determining whether a witness is
using a writing to refresh memory or offering a writing for the truth of something
the witness can no longer recall. Both at the time they compiled the schedules
and at the time of trial the Dotys apparently recalled the number of weeks they
worked for defendant and approximately how many hours per week they worked.
The schedules merely helped them recall quickly, without repetition of the mental
process of organizing their memories, the approximate dates of specific occurrences. The trial court understood that the schedules were approximations from
memory and it treated them as such. Thus, we hold that the trial court did not
abuse its discretion in permitting the Dotys to refer to the writings.
_______________
Points for Discussion
a. How to Refresh a Witnesss Memory.
The following is an illustration of how the plaintiffs lawyer in Doty might
have refreshed Mrs. Dotys memory under Rule 612:
Q. Mrs. Doty, how many hours did you work for Eddy Elias during the week of
July 10th?
A. Well I just dont remember. That was quite some time ago.
Q. Did you make a schedule listing the days and times you worked for Mr. Elias
during the month of July?
A. Yes, I did.
Q. Would seeing that schedule now refresh your memory as to the number of hours
you worked that week?
A. Yes, I think it would.
Q. May I approach the witness, your honor? [Judge] Yes, you may.
Q. May the record reflect that I am showing Plaintiffs Exhibit 5 to opposing counsel
for inspection?
[Judge] Any objections?
[Opposing counsel] No, your honor.
Q. I am now showing you Plaintiffs Exhibit 5. What is this document?
A. This is a listing of the hours I worked for Eddie during the month of July.
Q. Would you please read this document silently to yourself. When you are
finished, place the document face down in front of you.
A. Yes, ok.
Q. Do you now remember how many hours you worked the week of July 10th for
Mr. Elias?
A. Yes.
Q. How many was it?
A. Yes. I worked 45 hours that week.
Do you think it is credible to a jury that Mrs. Dotys memory was refreshed by
this process, or do you think she was testifying from having memorized the document?
439
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C. Witness Impeachment
Impeaching a witness means to discredit him for being untruthful in some
manner. There are a number of ways to do this, but those covered in this chapter
include impeachment by showing the witnesss character for untruthfulness, prior
convictions, prior inconsistent statements, and bias. First, however, are some
general impeachment concepts:
tradition was abolished by Rule 607, however, the possibility of using the rule as
a subterfuge to admit otherwise inadmissible hearsay became an issue.
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the
party calling the witness.1
441
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notions of fairness upon which our system is based. Foremost among these concepts is the principle that men should not be allowed to be convicted on the basis
of unsworn testimony.
We must be mindful of the fact that prior unsworn statements of a witness are
mere hearsay and are, as such, generally inadmissible as affirmative proof. The
introduction of such testimony, even where limited to impeachment, necessarily
increases the possibility that a defendant may be convicted on the basis of
unsworn evidence, for despite proper
Food For Thought
instructions to the jury, it is often diffiIs this a candid admission by the
cult for them to distinguish between
court that a Rule 105 limiting inimpeachment and substantive evistruction telling the jury that evidence. Thus, the danger of confusion
dence can be considered for one
which arises from the introduction of
purpose but not for another are often misunderstood or disregarded
testimony under circumstances such as
by juries?
are presented here is so great as to
upset the balance and warrant continuation of the rule of exclusion.
In the instant case, the witness Wilmoth, in statements given to the government, consistently adhered to his story that the appellant was not a participant in
the bribery. The prosecution admits this. Thus, the only apparent purpose in
calling him was to get before the jury the alleged statement made to Crist. Clearly, the introduction of this testimony was damaging. To permit the government in
this case to supply testimony which was a naked conclusion as to Morlangs guilt
in the name of impeachment would be tantamount to permitting the use of hearsay and would seriously jeopardize the important policies underlying Justice
Douglas opinion in Bridges. Despite the fact that impeachment of ones own
witness may be permitted, this does not go so far as to permit the use of the rule
as a subterfuge to get to the jury evidence otherwise inadmissible.
We are thus of opinion the judgment of the district court must be vacated and
the case reversed and remanded for a new trial.
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Points for Discussion
a. Claiming Surprise.
Does Morlang bring back the common law ban against impeaching ones own
witness unless a party can show he was surprised by the testimony? Perhaps it
does, at least when a party calls that witness solely for impeachment purposes.
443
444
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2. Bolstering a Witnesss Credibility
Once they swear or affirm to tell the truth, all testifying witnesses are presumed to be credible. Because of this presumption, common law practice did not
allow a lawyer to strengthen his own witnesss testimony by bolstering it. Bolstering means to offer evidence solely for the purpose of enhancing a witnesss
credibility before that credibility has been attacked. For example, until a witnesss
credibility has been attacked, a lawyer may not enhance the witnesss credibility
by putting on testimony that others think she is a truthful person or that she
performs honest deeds.
Appellants argue that the testimony of FBI Agent Daryl Huff constituted
improper bolstering of the testimony of cooperating witness Aponte-Laz. . . .
The case law is clear, and the parties agree, that prosecutors may not place the
prestige of the United States behind a witness by making personal assurances
about the credibility of a witness or by indicating that facts not before the jury
support the witnesss testimony. It is also undisputed that the prosecution cannot
accomplish such improper bolstering of a witness through the testimony of other
government witnesses. Government witnesses may of course testify to facts
within their personal knowledge that support or corroborate another witnesss
testimony. Indeed, in a case such as this one, where the bulk of critical testimony
445
446
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Points for Discussion
a. Bolstering as Harmless Error?
The testimony of Agent Huff seems to imply that everything the witness
Aponte-Lazu testified about on the witness stand had to be true because Huff was
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3. Impeaching a Witnesss Character for Honesty
All testifying witnesses are presumed to be truth-tellers. However,
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Character evidence offered for
that presumption may be attacked by
non-impeachment purposes will
impeaching or discrediting the witbe discussed in Chapter 9.
ness. One of the most frequently used
methods of impeachment is to attack
the witnesss character for honesty, that
is, to show the witness has the character trait of dishonesty. A jury hearing about
this tendency could then conclude that the witness lied to them while testifying.
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Rules 608 and 609 provide three ways in which to attack a testifying witnesss
character for honesty:
(1) By offering a second
witness to testify that the first
witness has a dishonest
reputation in the community;
(2) By putting on a second
witness to testify that in her
opinion, the first witness is
dishonest; or
447
448
Rule 608(a) allows a second witness to testify that a first witness should not
be believed because the first witness has a reputation in the community for dishonesty; The second witness may also give her opinion that first witness is dishonest. These concepts may be illustrated as follows:
Prosecutions
Case-in-Chief
Defendants
Case-in-Chief
Notice that the prosecution in this scenario presents the first witness during
her case-in-chief, and that the defense presents the second witness during his
case-in-chief.
449
450
Bruce Cooper was a local criminal defense counsel who, Whitmore claimed,
would testify regarding both Sotos reputation for untruthfulness within what he
called the court community and Coopers own opinion that Soto was untruthful.
Whitmore proffered that Cooper would testify that several defense counsel thought
Soto was a liar and that Cooper had the same opinion based on having tried many
cases in which Soto was a government witness. The district court excluded Coopers reputation testimony because, even assuming the court community constituted a recognized community, Cooper did not know Sotos reputation within the
entire court community and did not live in Sotos neighborhood. The court also
rejected Coopers opinion testimony under Fed.R.Evid. 403 because it was inherently biased, and unduly prejudicial in that Coopers contacts with Soto arose
from his representation of criminal defendants against whom Soto testified and
because Coopers testimony would lead to additional delay - that is, the court
would have to allow the government to explore the circumstances underlying
Sotos testimony in the other cases about which Cooper intended to testify.
Kennith Edmonds, whom Whitmore also sought to call as both a reputation
and opinion witness, was an acquaintance of Soto who used to live in the neighborhood where Soto worked and who saw Soto regularly until roughly five years
before the trial, when Edmonds moved away. Whitmore proffered that Edmonds
would say that he still saw Soto a few times each week when Edmonds returned
to his old neighborhood to visit his mother and still maintained contacts with
others in the neighborhood who knew Soto. Edmondss proffered opinion evidence was based on two incidents: (1) Soto had participated in the arrest of a
friend of his and, when Edmonds attempted to collect his friends property from
the police, Edmonds was told that there was no property to collect; and (2) Soto
and other officers wrongly arrested Edmonds for drug possession in 1995. The
court excluded Edmondss reputation testimony because he had not lived in the
neighborhood where Soto worked for some time; it excluded his opinion testimony because it questioned whether Soto was involved in the events on which
Edmonds based his opinion. It also excluded Edmondss testimony in its entirety
under Fed.R.Evid. 403, concluding that the minimal probative value of Edmondss
evidence was outweighed by unfair prejudice, including the governments resulting need to examine the events underlying Edmondss testimony. . . .
The Sixth Amendment guarantees a defendant the right to present a defense
by calling witnesses on his own behalf and by cross-examining the witnesses
against him. The district court nonetheless has considerable discretion to place
reasonable limits on a criminal defendants presentation of evidence and crossexamination of government witnesses. It must be cautious, however, [p]articularly where a party is seeking to impeach a witness whose credibility could have
an important influence on the outcome of the trial.
451
452
Whitmore makes two challenges: one related to the exclusion of his proposed
character witnesses under Fed.R.Evid. 608(a) and the other to the exclusion of his
proposed cross-examination of Soto
under Fed.R.Evid. 608(b). We review
the district courts evidentiary rulings
Make the Connection
for abuse of discretion.
The second portion of this opinion concerning the admissibility of
evidence under Rule 608(b) is discussed in the next section of this
chapter.
purpose of a law enforcement officers reputation - the district court found the
foundation for his testimony weak because it relied on Coopers conversations
with only a few other criminal defense counsel, a subset of the proposed community.
While recognizing that the foundational requirement for opinion evidence
regarding a witnesss character for truthfulness is less stringent than that for reputation evidence, the district court nonetheless rejected both Coopers and
Edmondss proposed opinion evidence. It concluded that both opinions lacked
sufficiently supportive factual information to be credible and thus would be
unfairly prejudicial under Fed.R.Evid. 403. The foundation for Coopers opinion
that Soto was untruthful was limited to his observation that Soto had testified
falsely against his clients; the facts underlying Edmondss opinion did not provide
a reasonable basis from which the jury could conclude that Soto was even directly involved in the events, much less indicate that he was untruthful about them.
Whitmore contends that the foundational defects could have been highlighted by the government in cross-examining his character witnesses but were
not severe enough to exclude the evidence altogether. The foundation required
by Fed.R.Evid. 608(a), however, is designed to keep unreliable evidence from
being heard by the jury at all. The district court did not abuse its discretion in
excluding this evidence under Fed.R.Evid. 608 - the foundational defects were
serious - and Fed.R.Evid. 403, on the ground that its value would have been
substantially outweighed by the unfair prejudice to the government and by needlessly occupying the time of the jury and the court. . . .
_______________
Points for Discussion
a. The Foundation for Reputation and Opinion Testimony.
Under Rule 608(a) a reputation witness must be sufficiently acquainted with
the testifying witnesss reputation for honesty in the community where the testifying witness lives. An opinion witness must personally know the testifying witnesss character for honesty. As Whitmore demonstrates, the trial court has discretion to determine whether these foundations have been met. From how many
people from the relevant community must a witness hear before he can testify to
a persons reputation? Does this type of testimony not risk elevating gossip into
fact?
453
454
Defendants
Case-in-Chief
Prosecutions
Rebuttal
The defendant
shot the victim for
no reason
and/or
and/or
How do you think a jury would receive this testimony? What would they
make of it?
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4. Impeachment by Use of Specific Acts of Dishonesty of the
Witness Rule 608(b).
Rule 608(b) provides that a testifying witness may be cross-examined with
the witnesss own specific acts of dishonesty by allowing a cross-examiner to question the witness directly about the acts, regardless whether or not they resulted in
a conviction. The rule gives the trial judge the discretion to determine whether
the acts are sufficiently probative of dishonesty to be admissible. The rule also
states that if the witness denies the dishonest acts, the questioner must take the
witnesss answer, that is, he cannot bring in other evidence extrinsic to the witnesss testimony to refute the denial. Therefore, a questioner can ask about a
specific instance of conduct to test the character for truthfulness of a witness but
is not permitted to prove that specific instance occurred with extrinsic evidence.
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misconduct: (1) his testimony before the Superior Court judge in 1999; (2) the
1998 suspension of Sotos Maryland drivers license and his failure to report the
suspension to his supervisors; and (3) Sotos failure to make child-support payments. The district court prohibited cross-examination as to the first instance
under Fed.R.Evid. 403; with regard to Sotos failure to report his suspended
license and his failure to make child support payments, the court concluded that
the document on which Whitmore relied to pursue the questioning was itself
unreliable hearsay. We disagree.
Under Fed.R.Evid. 403, a court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence. Rule 403 tilts, however,
as do the rules as a whole, toward the admission of evidence in close cases; when
performing the balancing test required under Rule 403, ... the balance should be
generally struck in favor of admission. We nonetheless recognize that the district
court is in the best position to conduct the balancing test and therefore review a
Fed.R.Evid. 403 ruling only for grave abuse.
Here the district court first determined that the probative value of any crossexamination regarding Sotos testimony before the Superior Court judge would be
slight because it involved an unrelated and dated matter and fell short of a perjury conviction. It then concluded that cross-examination on the subject presented a grave risk that the jury might abdicate its role in weighing Sotos testimony and that both the cross-examination and the governments inevitable rehabilitation of Sotos testimony would divert the jury from the facts in this case and
from the assessment that they need to make in this case.
For his part, Whitmore contends that the proposed cross-examination was
strongly probative of Sotos character for untruthfulness and that, given the critical
nature of Sotos evidence against Whitmore, the district court should have allowed
it. We agree. Nothing could be more probative of a witnesss character for
untruthfulness than evidence that the witness has previously lied under oath.
Indeed, as the Second Circuit observed - in a remarkably similar case (before the
enactment of Fed.R.Evid. 608(b)) in which a party sought to cross-examine a key
witness regarding a finding by another court that the witness had intentionally
g[iven] false testimony : the rule seems to be well settled that although the
opponent is not permitted to adduce extrinsic evidence that a witness lied on a
previous occasion, he may nonetheless ask questions to that end. . . .
[T]the government nevertheless contends that the probative value of the proposed cross-examination was limited because the judges finding more closely
resembles a mere complaint ... or a ruling that the testimony of opposing witnesses [was] more credible, whose probative value is hard to know. Hardly. The
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Points of Discussion
a. Policies Behind the Exclusion of Extrinsic Evidence under Rule
608(b).
Wigmore describes the overall rationale behind the common law ban on
extrinsic evidence as preventing confusion of issues through proliferation of testimony on minor matters and preventing unfair surprise arising from false allegations of improper conduct. 3A Wigmore on Evidence 979, at 826-27 (Chadbourn Rev. Ed. 1970). Do these policies outweigh allowing a testifying witness to
lie under oath, even about a minor matter such as a Rule 608(b) act of dishonesty?
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(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court, may, however, in a criminal
case allow evidence of a juvenile adjudication of a witness other than the
accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not
render evidence of a conviction inadmissible. Evidence of the pendency of an
appeal is admissible.1
Effective December 1, 2011, new Rule 609 will read as follows:
Under the common law, convicted felons were incompetent to testify. Rule 609
now makes a witnesss conviction a
matter of impeachment rather than
incompetency. The rule divides convicTake Note
tions into two categories: (1) crimes
A conviction for Rule 609 purposes
means any sentence in a criminal case
punishable by death or imprisonment
where the defendant is confined or
(i.e., felony convictions) for more than
given probation but not where the
one year, and (2) crimes whose eledefendant is placed on deferred adments require proof or admission of an
judication. Deferred adjudication is
where the defendant is placed on proact of dishonesty or false statement (i.e.
bation but a finding of guilt is deferred
felony or misdemeanor convictions
and never entered on the record unless
involving dishonesty or false statethe deferred adjudication is revoked.
ment).
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ing the government from questioning Sanders about a stabbing for which he was
acquitted and an armed robbery for which his conviction was reversed, the court
declined to preclude the government from cross-examining Sanders about his
prior assault and contraband possession convictions. The court ruled that the
assault and contraband convictions were admissible under Federal Rules of Evidence 609(a). . . .
After hearing the evidence, the jury . . . convicted Sanders of possession of a
shank. The jury was unable to reach a verdict on the assault count against Sanders, however. The district court accordingly declared a mistrial as to that count
and set it for re-trial. . . .
Sanders convictions for assault and possession of contraband fall under
609(a)(1), and the district court therefore was required to balance the probative
value of the evidence against its prejudicial effect in assessing its admissibility.
Here, although evidence of the prior convictions may be thought somehow generally probative of Sanders lack of credibility, they were extremely prejudicial since
they involved the exact type of conduct for which Sanders was on trial.
We have recognized the prejudice that results from admitting evidence of a
similar offense under Rule 609:
Admission of evidence of a similar offense often does little to impeach the
credibility of a testifying defendant while undoubtedly prejudicing him. The jury,
despite limiting instructions, can hardly avoid drawing the inference that the past
conviction suggests some probability that defendant committed the similar offense
for which he is currently charged. The generally accepted view, therefore, is that
evidence of similar offenses for impeachment purposes under Rule 609 should be
admitted sparingly if at all.
We think that it is doubtful if this conviction could ever serve as the basis for
impeachment. It was remote in time, almost falling within the presumptive bar of
Rule 609(b). It was for a similar offense, an odious one likely to inflame the jury
and thus prejudice defendant. Moreover, it was an offense that had minimal if any
bearing on the likelihood that defendant would testify truthfully. But in any event,
defendant was denied the safeguards of Rule 609(a). The district court failed to
determine as a prerequisite to use of the evidence that the probative value of the
conviction for impeachment purposes outweighed its prejudicial effect to the
defendant as required by Rule 609(a).
. . . It is unclear whether and how the district court may have sought to
balance the probative value of this evidence against its prejudicial effect, since at
the hearing on Sanders motion in limine the district judge simply stated, [t]hey
[the government] are entitled to go into that [Sanders prior convictions] both on
the question of intent and impeachment. Even if the district court had explicitly
conducted a balancing inquiry before admitting this evidence, we would find the
evidence inadmissible under Rule 609(a) because of the high likelihood of prejudice that accompanies the admission of such similar prior convictions. As we
stated in Beahm,
[w]here as here the offense sought to be admitted against defendant had little bearing
on his propensity to tell the truth, the district court should have recognized that the
substantial likelihood of prejudice outweighed the minimal impeachment value of the
evidence, and refused to admit the evidence, ... or at the very least limited disclosure
to the fact of conviction without revealing its nature.
We therefore hold that Sanders prior convictions were not admissible under
Rule 609(a).
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Points for Discussion
a. The Tendency of a Prior Conviction to Impeach.
Rule 609(a)(1) convictions are admitted because all serious crimes have some
probative value to show dishonesty. They demonstrate that the witness is willing
to violate the law, suggesting that the witness may violate the law again by not
telling the truth at trial. Nonetheless, some (a)(1) crimes demonstrate dishonesty
more than others. Crimes such as robbery, kidnapping, burglary, and murder are
crimes of violence and have only a modest tendency to show dishonesty. Even so,
the trial court has discretion to admit them under a Rule 609(a)(1) balancing test.
See United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995) (the trial judge acted
within his discretion under Rule 609(a)(1) when he admitted a testifying defendants prior drug and robbery convictions). If the trial judge in Sanders exercised
his discretion not to admit the defendants prior convictions for assault and possession of a contraband shank, do you think that ruling would be upheld under
the facts of the case?
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Hypo
Mark has been indicted for murder. He plans to testify that he was
somewhere else the night of the murder and could not have committed it.
His only other witness is his girlfriend Mary, who will testify that Mark was
with her the evening of the murder. Mark and Mary have both been convicted of the felonies of burglary and armed robbery, having committed them
together eight years ago. Analyze the admissibility of each of these convictions for each of these witnesses under Rule 609(a)(1).
Basile contends (1) that it was error to allow the Government to inquire into
his prior misdemeanor conviction for purposes of impeachment . . . .
At first blush, the question seems easily resolved. Under Rule 609(a)(2) of the
Federal Rules of Evidence, prior misdemeanor convictions may be used to
impeach a witnesss credibility if, and only if, the prior crime involved dishonesty or false statement. Beginning with the language of the Rule itself, we note
that dishonesty is, by definition, a disposition to lie, cheat, or steal. Random
House College Dictionary 380 (abr. ed. 1973) (emphasis added). Moreover, (i)n
common human experience, acts of deceit, fraud, cheating or stealing . . . are
universally regarded as conduct which reflects adversely on a mans honesty and
integrity. A common sense approach to the language of Rule 609(a)(2) would
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support the conclusion that Basiles prior conviction was admissible because theft
is a crime involving dishonesty within the common meaning of that term.
A different conclusion, however, is suggested when reference is made to the
legislative history of Rule 609(a)(2). The Federal Rules of Evidence were the subject of considerable conflict in the Congress, and a focus of much of this conflict
was the intended meaning of the terms dishonesty or false statement in Rule
609(a)(2). The history of the debate over the meaning of those terms has been
fully recounted elsewhere11 and need not be dwelled on here. For present purposes, it suffices to note that the Conference Committee Report on the legislation
finally adopted states:
Because the crime of larceny or theft is neither enumerated above nor encompassed by the strict meaning of the term crimen falsi,12 inference arises that
Congress intended the term dishonesty in Rule 609(a) (2) to mean something
more than a mans propensity to steal what does not belong to him.
Precisely because of the variance between the common meaning of dishonesty and the more restrictive meaning in which Congress apparently used the
word, courts have split on the question of whether prior convictions for crimes
involving stealing, without more, are admissible for impeachment purposes under
Rule 609(a)(2).
As the developing conflict between the Circuits reveals, reasonable men may
disagree about whether a witnesss propensity to steal reflects upon his honesty in
a manner that bears adversely on his propensity to tell the truth. Frankly, we are
not anxious to enter the fray and, fortunately, are able to decide this case without
having to rule on the general question of whether all crimes involving stealing
necessarily involve dishonesty within the meaning of Rule 609(a)(2).14
E.g., United States v. Smith, 551 F.2d 348, 360-69 (D.C. Cir. 1976). By the phrase dishonesty and
(sic) false statement the Conference means crimes such as perjury or subornation of perjury, false
statement, criminal fraud, embezzlement or false pretense, or any other crime in the nature of crimen
falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accuseds propensity to testify truthfully. H.R.Conf.Rep.No.93-1597, 93rd Cong., 2d Sess.
9, reprinted in (1974) U.S.Code Cong. & Admin.News p. 7103.
11
In its most limited technical sense, the term crimen falsi refers only to crimes of fraud and deceit
that adversely affect the administration of justice. The term, however, has also been used to refer to any
crime perpetrated by means of fraud or deceit. This appears to be the sense in which the term was used
in the Conference Committee Report, although at least one member of the Committee believed that
the term could include virtually any crime involving moral turpitude.
12
Indeed, (a)ll acts of stealing are not the same. 3 Weinsteins Evidence at 609-68 (1976). Larceny, for
example, reflects adversely on the trustworthiness of a mans character and his testimonial credibility
in a way that joyriding does not. Moreover, with respect to the types of crimes that bear on a witnesss
veracity, one might also reasonably distinguish between theft and armed robbery. Theft is an act of
14
Even the courts that reject the view that stealing, without more, involves
dishonesty that bears on a witnesss veracity recognize that modern theft statutes
may encompass criminal conduct that does fall within the ambit of Rule 609(a)
(2), for a theft conviction may well be based on fraudulent or deceitful conduct
that would previously have been prosecuted as larceny by trick, embezzlement, or
the taking of money or property by false pretenses, etc. Accordingly, these courts
have adopted the rule that, when the statutory offense of which the witness was
convicted does not require proof of fraud or deceit as an essential element of the
crime, the prior conviction may yet be admitted under Rule 609(a)(2) if the proponent of the evidence bears the burden of showing that the conviction rested on
facts warranting the dishonesty or false statement description. [Ed. This is no
longer the position taken by the 2011 amendment to Rule 609(a)(2)]. Such a
showing was made in the case at bar.
In the course of a conference between counsel and the court outside the
presence of the jury, the parties vigorously argued the question before us now. The
Government took the position that Basiles theft conviction involved dishonesty
within the meaning of Rule 609(a)(2) because theft was inherently a crime of
deceit. Basile contended that only thefts perpetrated by means of some kind of
deceit or false statement fell within the ambit of the Rule:
He has to steal by slyness, by any type of deceit. Naturally, taking something
is dishonest, but I think the (Conference Committee Report) indicates that it has
to be some kind of vocal dishonesty.
The trial judge then inquired as to the nature of Basiles particular offense:
I dont really know what theft from a savings and loan . . . means. Are we
talking he went in and robbed them with a gun . . . ? Was he employed there and
walked away with some money? I dont have enough facts . . . .
The Government replied:
The original charge was forgery. That charge was plea bargained down to this
particular charge. Some sort of false statement forgery in the application for a
stealth whose furtive character distinguishes it from armed robbery, an act of violence in which the
perpetrator at least has the decency to let his victim know what he is about. Simply put, the pickpocket, unlike the armed robber, is a sneak. Though the robber may be dishonest in the sense that
he takes what does not belong to him, the pickpocket is both dishonest and deceitful in his dishonesty. Accordingly, a prior conviction for theft might reveal a mans propensity for deception and evasiveness that impeaches his testimonial credibility in a way that a prior armed robbery conviction
would not.
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loan. That matter was then reduced and (he) plead guilty in this particular case to
some sort of theft of under $100.00.15
On the basis of the Governments uncontested assertion that Basiles theft
conviction rested on facts revealing fraud and deceit, the trial judge determined
that Basiles prior conviction was admissible for purposes of impeachment.
Under the circumstances, we are convinced that Basiles particular crime
involved dishonesty or false statement within the meaning of Rule 609(a) (2),
even if those terms are narrowly construed as not including acts of stealing alone.
Accordingly, without reaching the question of whether a theft conviction not
predicated on fraudulent or deceitful conduct is admissible under Rule 609(a)(2),
we hold that the fact of Basiles prior misdemeanor conviction was properly elicited from him on cross-examination at trial. . . .
AFFIRMED.
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Points for Discussion
a. The Effect of the 2011 Amendment to Rule 609(a)(2).
There may no longer be an issue regarding the interpretation of what constitutes a crime of dishonesty or false statement. In 2011, Rule 609(a)(2) was
amended to provide that a conviction may be automatically admitted to impeach
a testifying witness if the proponent proves establishing the elements of the crime
required proving or the witnesss admitting a dishonest act or false statement. In other words, acts of dishonesty or false statement must be included in
the defining statutory elements that have to be proved beyond a reasonable doubt
in order to convict. Most common theft, burglary, or robbery cases would not be
able to meet this requirement.
b. Stale Convictions.
If the date of the conviction or the release of the defendant from confinement
(whichever is more recent) is more than ten years, the conviction is presumptively
inadmissible. Stale convictions are thought to no longer reveal anything relevant
about the witnesss character for truthfulness. However, if the impeachment value
of a stale conviction substantially outweighs the risk of unfair prejudice and this
reverse 403 balancing is supported by specific facts and circumstances, the
judge may admit it. Under this formula, a 12-year-old fraud conviction might be
In fact, Basile was originally indicted for a felony under 18 U.S.C. 1014 as a result of having made
false statements in an application for a loan from a federally insured savings and loan association. The
indictment was subsequently dismissed, and a superceding information charging misdemeanor theft
under 18 U.S.C. 2113(b) was filed. Basile plead guilty to that charge in December 1974 and was
given a suspended sentence of one years imprisonment in February 1975.
15
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6. Impeaching a Witness with a Prior Inconsistent Statement
Rule 613. Prior Statements of Witnesses
(a) Examining Witness Concerning Prior Statement. In examining a
witness concerning a prior statement made by the witness, whether written
or not, the statement need not be shown nor its contents disclosed to the
witness at that time, but on request the same shall be shown or disclosed to
opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice other require. This provision does
not apply to admissions of a party opponent as defined in rule 801(d)(2).1
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tant which statement is true because the witnesss credibility has been damaged
either way. Because prior inconsistent statements are not offered for the truth of
their contents, they are not considered hearsay.
Under the common law, as set out in The Queens Case, 129 Eng. Rep. 976
(1820), the witness had to be told of the time, place, and person to whom the
alleged inconsistent statement was made, and the witness had to be shown any
written statement before impeachment could proceed. Only if the witness denied
making the prior statement was the statement admissible in evidence. Neither of
the Queens Case requirements is necessary under Rule 613. The rule only requires
that the witness at some point in time during the trial be given an opportunity to
examine or explain her statement and the opposing party be given an opportunity
examine the statement before the statement can be admitted into evidence. These
opportunities need not come during cross-examination or even before the introduction of the statement.
FYI
FYI
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Points for Discussion
a. The Virtue of Rule 613.
One advantage Rule 613 has over The Queens Case foundation is that a lying
witness is not warned as early in cross-examination about the fact that she previously made a false statement. This is particularly useful in examining several
witnesses about a joint statement before the statement is introduced into evidence.
Even though Rule 613(b) relaxes the common law foundation required by The
Queens case, why does the court in Young say that the government, the party
opposing admission of the inconsistent statement, is the party who should have
re-called the witness to explain or deny making it? Isnt this what the defense
should have done?
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?
?
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Points for Discussion
a. Use of Extrinsic Evidence to Prove a Witnesss Bias.
Recall there are limits to the admissibility of extrinsic evidence to impeach a
witness. Rule 608(b), for example, requires that the questioner take the answer
of the witness when impeaching with prior specific acts involving dishonesty and
prohibits introduction of extrinsic evidence. Why is the law more willing to admit
extrinsic evidence of bias than prior acts of dishonest conduct to attack character
for truthfulness?
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An Extrinsic Evidence Chart
The following chart summarizes what we have learned so far about using
extrinsic evidence to refute a witnesss denial of impeachment evidence.
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3.Bias
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Executive Summary
General Rule
Witnesses are generally considered competent.
Mentally Incompetent
There is no specific rule that addresses witnesses that are mentally incompetent. Mentally incompetent individuals may be permitted to testify if the judge
believes the individual knows and understands the truth and can accurately testify as to personal knowledge in that particular case.
Child Witnesses
Contrary to the common perception, children can testify. There is not a
statutory threshold age below which a child is not permitted to testify.
Previously Hypnotized Witnesses
The viability of these individuals as competent witnesses is not yet clearly
defined by our courts nor our rules.
Religious Beliefs
Certain individuals were previously held incompetent based on their religious beliefs. This has now been outlawed by Rule 610.
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but a document contains the witnesss past recollection recorded that can be read
to the fact-finder in open court as allowable hearsay to prove the truth of the
matter asserted in the document.
Impeachment
A party may impeach any hostile or adverse witness, including their own
witness, under Rule 607. However, a party cannot call adverse witnesses on direct
examination solely to impeach them with a prior inconsistent statement because
such a statement used this way would constitute inadmissible hearsay (Morlang).
Also, a party may not bolster, or vouch for, the credibility of a witness by putting
on a second witness to testify that the first witness is a truthful person and is
telling the truth. (Rosario-Diaz). Bolstering of a witness is allowed only when that
witnesss character for truthfulness has first been attacked.
Attacking a Witnesss Character for Truthfulness
Do not confuse character for truthfulness under Rule 608, with general character of a criminal defendant or victim, such as the defendants or the victims character for peacefulness or violence, under Rule 404. Rule 608(a) allows either
party, in either a criminal or civil case, to attack the character for truthfulness of
any witness who takes the stand. Once attacked, that witnesss character for truthfulness can be bolstered. When attacking character for truthfulness (or the alleged
propensity to lie), Rule 608(a) allows a party to offer a second witness to testify
that the first witness has a bad reputation for being untruthful, or in the opinion of
the second witness, the first witness has bad character for truthfulness (is a liar).
(Whitmore I).
Rule 608(b) does not allow extrinsic evidence of a specific instance of conduct to prove bad character for truthfulness. However, a lawyer can often ask
about specific instances of conduct to test the credibility of a witness that is attacking the character for truthfulness of another witness, but because no extrinsic
evidence is allowed, the lawyer is stuck with whatever answer is given by the
witness. (Whitmore II). The lawyer must have a good-faith basis for asking the
question.
However, if that specific instance of conduct showing the bad character for
truthfulness of a testifying witness is a criminal conviction of that witness, then
Rule 609 often allows extrinsic evidence of that conviction (testimony and the
conviction records) to attack the character for truthfulness of the testifying witness.
Admission of the testifying witnesss former conviction under Rule 609
depends on whether the conviction was for a felony, or for a misdemeanor. Under
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an attorney may show that the witness has a specific incentive or reason to lie such
as a personal or economic bias in the case. (Abel).