Running head: 5 METHODS OF IMPEACHMENT 1

5 Methods of Impeaching a Witness

Margaret (Mickey) Kugler

Final Paper CJ 2350 Laws of Evidence

Professor Martian Philips

August 4, 2018
THE 5 METHODS OF IMPEACHMENT 2

5 Methods of Impeaching a Witness

Abstract: In this eassy, we are going to look at 5 methods of impeaching a witness during

a trial. These methods are part of destroying or breaking down the witness truth in their

testimony during cross-examination. (1) by contradiction; (2) by proof of bad character for

truthfulness; (3) by proof of a prior inconsistent statement; (4) by proof of bias or motive to

falsify; and (5) by proof of lack of or diminished witness capacity.

During a trial, the prosecution and the defense have a chance for cross-examination, of

one another’s witnesses. The cross-examination of witnesses is universally recognized as the

right to use leading questions per the FRE 611 (c) puts it (Garland, 2011, p. 120): It becomes a

very slipper slope when it comes to cross-examination, as the cross-examiner the questions that

get asked, usually leads the witness to answer “yes or no”, this the way the cross-examiner can

control the witness in how he/she will answer the question. A witness under cross-examination is

known as an adverse witness (one the aligned with the opposing side), who may, because of

conscious or unconscious hostility engendered by the cross-examination of the situation and to

coerce additional information to the advantage of the opposing side (Garland, 2011, p.120). A

skilled attorney with their cross-examination techniques tries to keep it to a minimum orthe wave

it waives it entirely. When done correctly, cross-examination is an indispensable method of

either eliciting testimony favorable to the examiner’s case or impeaching the witness’s testimony

(Garland, 2011, p. 121). Impeachment of a witness in cross-examination it crucial to either the

prosecution or the defense’s side, discreditin witnesses can mean the difference between guilty or

innocent.

Method (1) impeachment by contradiction; by cross-examination consists of asking the

witness about the facts that are directly in opposition to those testified to on direct examination

(Garland, 2011, p. 121). The Federal Rules of Evidence: Article VI, witnesses, Rule 609
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Impeachment by Evidence of Criminal Convection. As a means of impeachment, evidence of

conviction of a crime is significant only because it stands as proof of the commission of the

underlying criminal act. (a) In General. The following rules apply to attacking a witness’s

character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the

convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the

evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which

the witness is not a defendant; Rule 403; Excluding Relevant Evidence for Prejudice, Confusion,

Waste of Time, or Other Reasons, falls under Article VI. Relevance and its Limits.

(B) must be admitted in a criminal case in which the witness is a defendant if the probative value

of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can

readily determine that establishing the elements of the crime required proving — or the witness’s

admitting — a dishonest act or false statement (Staff, 2011).

Rule 607. Who May Impeach a Witness? Any party, including the party that called the witness,

may attack the witness’s credibility (Staff, 2011). Also, see McCormick page.

Method (2) by proof of bad character for truthfulness; Rule 404. Character Evidence;

Crimes or Other Acts. When looking at a witness character there are so many different rules that

it can fall under the character for truthfulness, the prohibited uses, and exceptions for defendants

or victim in a criminal case. Then the exceptions for a witness, the prohibited uses, and the

permitted uses, notice in a criminal case. Under the (a) Character Evidence. (1) Prohibited

Uses. Evidence of a person’s character or character trait is not admissible to prove that on a

particular occasion the person acted in accordance with the character or trait. (2) Exceptions for

a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
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(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is

admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s

pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under

Rules 607, 608, and 609 (Staff, L. 2011).

Rule 412, falls under, Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition.

Rule 607, falls under, Who May Impeach a Witness.

Rule 608, falls under, A Witness’s Character for Truthfulness or Untruthfulness.

Rule 609, falls under, Impeachment by Evidence of a Criminal Conviction.

1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, the absence of mistake, or lack of accident. On request by a defendant in a

criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any

such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during

trial if the court, for good cause, excuses lack of pretrial notice (Staff, L. 2011). There are so

different rules that can be used when you bring a witness charterer into play during a trial,

tipping the hand for either the prosecution or the defense.

THE 5 METHODS OF IMPEACHMENT 5

Method (3) by proof of a prior inconsistent statement; The Federal Rule of Evidence

Article VI. Witnesses > Rule 613. Witness states (a) Showing or Disclosing the Statement

During Examination. When examining a witness about the witness’s prior statement, a party

need not show it or disclose its contents to the witness. But the party must, on request, show it or

disclose its contents to an adverse party’s attorney. (b) Extrinsic Evidence of a Prior

Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is

admissible only if the witness is given an opportunity to explain or deny the statement and an

adverse party is given an opportunity to examine the witness about it, or if justice so requires.

This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2) (Staff,

2011). With rule 801 (d)(2), (d) talks of statements of hearsay, and the criteria that have to be

met to keep them from being hearsay. For example (2) An Opposing Party’s Statement. The

statement is offered against an opposing party and: (A) was made by the party in an individual or

representative capacity; (B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship

and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of

the conspiracy. An attorney must keep and mind the statement must be considered, but by itself

is not a formal declaration, of either (C); the existence or scope of the relationship under (D); or

the existence of the conspiracy or participation in it under (E) (Staff, 2014). There is too much to

put into this paper of notes of the advisory committee on proposed rules please see Notes of

Advisory Committee on Proposed Rules.

https://www.law.cornell.edu/uscode/html/uscode28a/usc_sec_28a_03000613----000-

notes.html.
THE 5 METHODS OF IMPEACHMENT 6

Method (4) by proof of bias or motive to falsify; with this method one of the most

famous court cases was the cross-examination of Detective Mark Fuhrman’s testimony in the O.J

Simpson trial. It was not looking good for the defense team of O.J Simpson known as the Dream

team. This case was headed towards a hung-jury (meaning the jury was a deadlock and they

could not reach a unanimous virdict of guily or innocent, which would result in a retrial). But

with the impeachmet of cross-examination of the defense were able to poke holes in his

testimony and placing reable dought in the minds of the jury of bias, the motive to falsify. One of

the damaging factors Screenwriter Laura Hart McKinny had testified earlier that Fuhrman used

the n-word 42 times during their taped conversations between 1985 and 1995. No recordings past

1988 contain the epithet. The other selection presented to jurors was preserved only in a

transcript. "We have no niggers where I grew up," Fuhrman said in that written excerpt (Seigel,

1995). Fuhrman was impeached by cross-examination of both method 2, 3 and of course 4. The

prosucation would bring into evidence of DNA and how drops of blood linked Simpson to the

murders. But the defense showed how the samples of blood could have been contaminated. The

most damaning piece of evidence was a bloody glove found alongside the simpson home by

Dectective Fuhrman. Its mate was found at the crime scene. The prosecution urged Simpson to

try the gloves on in open court, with all the strenghth of the former football star to get the gloves

on, struggled with this task, of course, the prosecution was stuned by this and argued the gloves

had shrunk (Seigel, 1995).

Mothed (5) by proof of a lack of or diminished witness capacity. This is where the

cross-examiner may seek to impeach a witness on by showing a witness capacity consists of

perception, memory, narration, and sincerity. They will also use in their cross-examination to

emphasize clearly things like poor eyesight, hearing memory, or ability to speak effectively. If
THE 5 METHODS OF IMPEACHMENT 7

any of these problems arise with the witness, the jury will weigh his or her testimony carefully

and might well disregard or give less weight to it (Garland, 2011). Therefor this is why when law

enforement is collecting witness statements, they are keeping this in mind for a defense attorney

will embrase these issues and it could damage the prosecution.

Therefore, here are the 5 methods of impeachment of a witness some are from the Federal

Rules of Evidence that also speaks of the defendant at times because they are intangled with one

another. Going through the rules, was very hard to just define the legal terms out, they needed to

be added in as they state. On page 8 you will find, Notes of Advisory Committee on Proposed

Rules, that speaks of the codes of McCormick, with a case of Luke v. the United States. How his

impeachement was used against him. I found it very interesting looking up some of the methods

through Federal Rules of Evidence, how the rules would become intertwined with one another

and how there was so much to the rule that it could not all be put into this paper. It is not just a

simple choice to have a witness testify there is so much more to it. With impeachment for either

side can destroy a case in seconds. There is no wounder that there are so many appeals and the

waiting process for your day in court.

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Notes of Advisory Committee on Proposed Rules

There is little dissent from the general proposition that at least some crimes are relevant to

credibility but much disagreement among the cases and commentators about which crimes are

usable for this purpose. See McCormick §43; 2 Wright, Federal Practice, and Procedure;

Criminal §416 (1969). The weight of traditional authority has been to allow the use of felonies

generally, without regard to the nature of the particular offense, and of crimen falsi without

regard to the grade of the offense. This is the view accepted by Congress in the 1970 amendment

of §14–305 of the District of Columbia Code, P.L. 91–358, 84 Stat. 473. Uniform Rule 21 and

Model Code Rule 106 permit only crimes involving “dishonesty or false statement.” Others have

thought that the trial judge should have the discretion to exclude convictions if the probative

value of the evidence of the crime is substantially outweighed by the danger of unfair

prejudice. Luck v. the United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); McGowan,

Impeachment of Criminal Defendants by Prior Convictions, 1970 Law & Soc. Order 1. Whatever

may be the merits of those views, this rule is drafted to accord with the Congressional policy

manifested in the 1970 legislation (Staff, L. 2011). In the case of Luke v., the United States,

Appellant was convicted of housebreaking and larceny after a trial at which he put forward an

alibi defense. His principal contentions upon appeal are that the District Court erred in (a)

receiving in evidence appellant's admission of guilt, and (b) allowing the Government to show by

way of impeachment his prior conviction of grand larceny (Charles M. Luck v. the United States,

n.d.).
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Reference

Charles M. Luck v. United States, 348 F.2d 763 – CourtListener.com. (n.d.). Retrieved from

https://www.courtlistener.com/opinion/268688/charles-m-luck-v-united-states/

Garland, N. (copyright 2011). Criminal Evidence, 6th edition. Published by McGraw-Hill

Companies, Inc.

Seigel, J. (1995, September 06). Simpson Jury Finally Hears Fuhrman's Slurs. Retrieved from

http://articles.chicagotribune.com/1995-09-06/news/9509060252_1_detective-mark-

fuhrman-racial-epithet-nicole-brown-simpson

Reske, H. J. (1995). Verdict on Simpson trial. ABA Journal, 81(11), 48-49.

From<http://eds.b.ebscohost.com.libprox1.slcc.edu/eds/pdfviewer/pdfviewer?vid=1&sid=e84d8

00c-3c67-4d67-b278-4f1ec109391e%40sessionmgr103>

Staff, L. (2011, December 01). Rule 607. Who May Impeach a Witness. Retrieved from

https://www.law.cornell.edu/rules/fre/rule_607

Staff, L. (2011, December 01). Rule 609. Impeachment by Evidence of a Criminal Conviction.

Retrieved from https://www.law.cornell.edu/rules/fre/rule_609

Staff, L. (2011, December 01). Rule 404. Character Evidence; Crimes or Other Acts. Retrieved

from https://www.law.cornell.edu/rules/fre/rule_404
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Staff, L. (2011, December 01). Rule 613. Witness. Retrieved from

https://www.law.cornell.edu/rules/fre/rule_613

Staff, L. (2014, August 01). Retrieved July 29, 2018, from

https://www.law.cornell.edu/rules/fre/rule_801