CROSS-EXAMINATION AND IMPEACHMENT


Rules referring to impeachment :


Bear in mind that the rules of impeachment and cross-examination are not fully covered in the Federal Rules. FRE 607 says that impeachment is proper, but does not say what kinds of evidence may be used to impeach. Rules 608 (character), 609 (criminal conviction) and 610 (religious beliefs) address some but not all of the various types of evidence relevant to impeach, so you have to rely on case law and tradition. Typically, you can impeach a witness with evidence of:


a) General untruthful character (Rule 608a -- reputation/opinion)
b) Specific acts of dishonesty or false statement (Rule 608b)
c) A prior criminal conviction (Rule 609)
d) A personal, social or political bias relevant to the case
e) A personal interest in the outcome giving rise to a motive to falsify
f) Prior statements or acts inconsistent with the testimony given at trial.
g) Drug, alcohol or mental impairment
h) Poor eyesight or hearing in general
i) Poor opportunity to observe the events
j) Unreliable memory of the events

Impeachment is closely related to the rules of competency. If a witness has NO personal knowledge, NO memory, NO ability to communicate, or REFUSES to promise to tell the truth, we exclude the testimony under Rules 601-603. However, despite our best efforts, witnesses testify who have poor perception, lousy memory, poor communication skills, or are unwilling to testify in a completely honest way. Thus, the question of the credibility of a witness, as determined by the quality of their perceptions, memory, testimony and honesty, is always at issue for every witness who testifies. Offering evidence tending to diminish credibility is called "impeachment."


This chart may help put these rules in perspective.


Let's start with problem 7-14, page 295. In this problem, there are six objections. You are asked in each case to explain the objection and ruling. I want you instead to think of what argument the plaintiff's attorney could make in response to the objections.


With respect to the first question whether he left at 11:25 rather than 11:45, what response could the plaintiff's attorney make to the relevancy objection? When you think you know the answer, click here .


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