this video discusses the impeachment of witnesses under the rules of evidence under the Federal Rules there are three modes of impeachment of a witness the first is non-character you can challenge a witness's testimony by attacking his perception how well he saw what he says he saw his memory how well he can remember the events that happened his accuracy also by evidence of bias suggesting that the witness has a motive not to tell the truth right now for example a close relationship between the witness and one of the parties would be evidence that that witness has a reason to slant his testimony in favor of that party contradiction by past inconsistent statement is a method where you impeach the witness's current testimony by pointing out that they have said something different in the past and then finally contradiction by conflicting evidence or circumstances pointing out that someone else remembers the events in a in a different way or pointing out that some of the evidence is contrary to the testimony of the witness this kind of non character mode of impeachment is not limited by the character rules so you can ask about specific instances you can bring in extrinsic evidence to prove this kind of non character impeachment you can ask other witnesses about these things and you can introduce other evidence the other two modes of impeachment are based in character the first is impeaching a witness based on his character for truthfulness but not by using convictions as we'll see you can impeach a witness for his character for truthfulness based on reputation or opinion for not being a truthful person and you can inquire into specific instances on cross-examination third is character for truthfulness using convictions this is the third way in which witness may be impeached and in this instance the specific instances that are asked about our convictions that rise to a particular level so first rule 608 tells us when you can impeach a witness's character for truthfulness or untruthfulness with without the use of convictions just as with the other exceptions for character for a defendant or a victim on direct examination a witness may testify about a witness's reputation for having a character for truthfulness or untruthfulness on cross-examination under six oh eight specific instances of conduct can be asked about otherwise extrinsic evidence is not allowed to prove these specific instances that we're talking about so under 608 a a person who is testified as a witness has opened his credibility or his character for truthfulness to attack the other party may then call a witness to testify that the previous witnesses reputation for truthfulness is bad or the party the proponent of that witness can call someone to testify that that witness's reputation is good the opinion or the reputation however truthful characters admissible only after a witness's character for truthfulness has been attacked so bolstering of witness's character is not permitted this would be wasteful of time instead we allow this kind of good character only for witnesses whose character has been attacked so then under 608 on cross-examination of a good character witness you can ask about specific instances that go to the character of that witness or the witness whose character this particular witness is being cross-examined about let's look at an example a testifies on direct that the defendant who has testified as a witness has a good character for truthfulness on cross the prosecutor can ask a about specific instances in which the defendant was not truthful so going to that reputation or opinion for truthfulness on cross the prosecutor may also ask a about specific instances in which a himself was not truthful so the cross-examination can cover specific instances about the witness himself and about the witness for whom he is testifying importantly the prosecutor may not bring in extras against about any of the specific instances going to character for truthfulness either the specific instances about a or the specific instances about the defendant this is character characters considered collateral and extrinsic evidence will not be allowed the prosecutor may use extrinsic evidence to prove that a is lying now any of those non character means by which we are impeaching the witness can be proved up using extrinsic evidence so if the prosecutor cross-examines a and asks a isn't it true that you have a close personal relationship with the defendant if a denies that the prosecutor can then bring in extrinsic evidence that a does have the close personal relationship with the defendant this goes to a spy is's motive or reason to lie now and is not considered character second impeachment by prior convictions under rule 609 609 allows impeachment by two types of prior convictions the first is under 609 a 1 which discusses the conviction of any type of crime as long as it is punishable by death or imprisonment for more than one year so this can be a crime of violence or any other type of crime the second type of conviction under 609 8 2 must involve a dishonest act or a false statement on the part of the person convicted for this type of conviction the punishment the potential punishment is immaterial therefore it can be a misdemeanor punishable by only six months as long as the crime involved a dishonest act by that party 609 BC and D which we'll talk about in a second limit both types of convictions and also important is to note that there are balancing scales throughout 609 depending on whether you've got the defendant or an ordinary witness who is being impeached and depending on whether you've got an old conviction under 609 B or a juvenile conviction under 609 D etc so watch out for all these different ways in which the rules tell you you have to balance the probative value of the prior conviction against its prejudicial effect the first time we have to make this distinction in how we balance is under 609 a 1 609 a 1 makes a distinction between whether we're talking about bringing in a prior conviction against an ordinary witness or against the defendant so under 609 a 1 we must always ask ourselves who are we bringing this prior conviction in against it's an ordinary non defendant witness or is it the defendant because the balancing test will differ mm-hmm under 6 or 9 a 1 a such a conviction meaning a conviction that is of a crime punishable by over a year is admissible unless the opposing party makes a 403 showing so for an ordinary witness a prior conviction of a 609 a 1 crime is presumed to be admissible for impeachment if the other party shows that the probative value of that prior conviction substantially outweighed by its prejudicial effect then it won't be allowed in importantly keep in mind what we're balancing here the probative value is the probative value of the prior conviction to show that this witness has a character for being untruthful if that probative value is substantially outweighed by the prejudicial effect then it won't be allowed in if the witness is the defendant then the balance changes such a prior conviction is admissible only if the prosecutor shows that the probative value of that prior conviction outweighs the prejudicial effect to the defendant so in this case the bird is on the prosecutor to show that the probative value of the prior conviction to show that the witness / defendant has a character for being untruthful outweighs any prejudicial effect to that defendant of the prior conviction coming in if you think about it it could be highly prejudicial to a defendant for a previous conviction to be introduced to the jury even if the jury is being admonished that prior conviction is supposed to only be considered for its effect on the defendants character for truthfulness when we do this balancing under 609 a remember that this evidence is admissible against the accused only if its probative value outweighs this prejudicial effect there are certain factors that we can look at in making this doubt first we can look at the nature of the crime does the crime itself go to truthfulness or is it more a violent crime that really has nothing to do with truthfulness second when was the conviction and what is the witness's subsequent history been is there evidence that the conviction was a long time ago and the witness has cleaned up his act since then it will be less probative if that's the case third look at the similarity between the past crime and the charged crime the more similar the past crime is that we're being allowed to bring in and the current crime for which the defendant is being charged the more similar the more likely that prior conviction will prejudice the defendant and the jury will convict based on the character inference that is not allowed which is the defendant did this act before they're more likely to have done it now fourth is the importance of the defendants testimony how important is that the defendant be able to testify on his own behalf in this case the more important the defendants testimony the less likely the court is to allow the impeachment because we need the defendant to be able to testify on the other hand if the defendants credibility is a central issue then that weighs in favor of bringing in the prior conviction these too often outweigh each other since they are looking at opposite directions in terms of when a defendant's testimony is important and yet his credibility is also important the second type of prior conviction that comes in under 609 is a crime requiring dishonesty or false statement for this rule evidence that any witness whether it is a defendant or an ordinary witness any witness has been convicted of a crime shall be admitted regardless of the punishment if the crime required dishonesty or false statement by the witness alone in the universe of the Federal Rules of Evidence this type of evidence is not subject to any rule 403 balancing the judge has no discretion if in fact this is a prior conviction of a crime requiring dishonesty or false statement that type of conviction must be allowed in to impeach the credibility of the witness even if the witness is the defendant the only exceptions are going to be in the rest of rule 609 is it over 10 years old under 609 B hasn't been pardoned under C or was it a juvenile crime under D if it's none of those then this evidence must come in let's talk further about the type of crime that is covered under 609 a - the rules say that this applies when the court can readily determine that establishing the elements of the crime required proving or the witnesses admitting a dishonest act or false statement so this means that just because you're talking about an ordinary robbery doesn't mean that that's going to be a 609 a - type of crime instead it's going to be a crime that requires a dishonest act or false statement like perjury subordination of perjury false statement fraud embezzlement false pretence or any other offense of this kind the rule is going to require that it be readily determinable that this particular crime required a dishonest act or false statement the rule is not going to allow the judge to go back and have to examine the transcript or something like that to find out whether it involved in Tucson Tucson us act or false statement it must be evident from the face of the crime the face of the indictment or a set of admitted facts so those are the two types of crimes convictions that are covered under 609 the rest of 609 imposes some limitations under B there's a overall time limit of 10 years for either type of prior conviction so under the rule evidence of convictions that are more than 10 years old as measured from the date of conviction or the date of final release whichever is later is not admissible unless it's probative value supported by specific facts and circumstances substantially outweighs its prejudicial effect this is a very stringent balancing test and it would be very unusual for a prior conviction over 10 years old to come in and the prosecutor must give sufficient advance written notice of his intent to use such an older conviction in addition the second limitation is under 609 C which says that if a prior conviction has been pardoned annulled or a defendant has received a Certificate of Rehabilitation then it's not admissible so if that conviction was the subject of a pardon or an annulment based on a finding that the person has been rehabilitated and that person has not been convicted of a subsequent crime within the past year then that conviction is not admissible similarly if the conviction is subject of a pardon annulment or other equivalent procedure based on finding of innocence then that conviction is not going to be admissible the third limitation is under 609 D for juvenile convictions those types of convictions are never going to be admissible in a civil case and they're never going to be admissible against a defendant in a criminal case so the only time that a potential juvenile conviction could be admissible would be in a criminal case where we're impeaching the credibility of a witness who is not the defendant in that case we have the highest stringent balancing and it's admissible only if the evidence would be admissible to adduct attack an adult's credibility and the Court finds that admitting it is necessary to fairly determine guilt or innocence very stringent balancing test difficult to uphold very unusual for a juvenile conviction to come in the last section of rule 609 tells us that a conviction that satisfies this rule is admissible even if an appeal is pending so if the prior conviction is a recent one and an appeal is pending that doesn't mean it's not admissible it can still come in but the witness can testify that the conviction is pending appeal so the evidence of that will be allowed in as well