Impeachment of Witnesses under Federal Rules of Evidence

Modes of Impeachment

1. Non-Character Impeachment

   • Perception: Challenge how well the witness saw or could have seen what they claim.
   • Memory: Question the ability of the witness to remember events accurately.
   • Bias: Present evidence that suggests the witness has a motive to lie (e.g., close relationship with a party involved).
   • Contradiction by Past Inconsistent Statement: Highlight discrepancies between current and past statements.
   • Contradiction by Conflicting Evidence: Use conflicting testimonies or evidence.
   • Extrinsic Evidence: Permitted for non-character impeachment.

2. Character Impeachment for Truthfulness (Rule 608)

   • Reputation or Opinion: A witness can be impeached based on reputation or opinion for untruthfulness.
   • Specific Instances: Can be inquired about on cross-examination but extrinsic evidence is not permissible.
   • Bolstering: Permitted only after the witness’s character for truthfulness has been attacked.

3. Character Impeachment Using Convictions (Rule 609)

   • 609(a)(1): Impeachment by a conviction punishable by over a year.
     • Balancing test for ordinary witnesses (probative value vs. prejudicial effect).
     • Stricter test for defendants (probative value must outweigh prejudicial effect).
   • 609(a)(2): Crimes involving dishonesty or false statements must be admitted irrespective of punishment.

Rule 608 and Specific Instances

• On cross-examination, specific instances of conduct can be questioned but not proven with extrinsic evidence.
• Attacks on truthfulness allow for testimony regarding a witness's reputation or opinion.

Rule 609: Impeachment by Prior Convictions

Types of Convictions

• 609(a)(1): Crime punishable by death or imprisonment for over a year.
• 609(a)(2): Crime involving dishonesty or false statements.

Limitations

1. 609(b): Time limit of 10 years on convictions unless probative value substantially outweighs prejudicial effect.
2. 609(c): Convictions that have been pardoned or annulled are not admissible, given certain conditions.
3. 609(d): Juvenile convictions generally inadmissible, except under stringent conditions.
4. 609(e): Pending appeal does not affect admissibility, but the witness can testify about the appeal.

Balancing Tests

• 609(a)(1): Distinction between ordinary witnesses and defendants.
• Factors: Nature of the crime, time of conviction, similarity to charged crime, importance of testimony, and credibility.
• 609(a)(2): No balancing test for crimes involving dishonesty.

Important Considerations

• Probative value versus prejudicial effect is crucial in determining admissibility.
• Specific rules apply to different types of witnesses and convictions.
• Extrinsic evidence limitations are key in character impeachment.