1016

 

I would argue that the evidence has significant probative value to impeach because it shows bias against the victim, which would give him a motive to contradict whatever she says to make her look bad. I don’t see much prejudicial effect.

Note that the question did not ask for details about the prior litigation. The fact that Melissa was a witness against him shows the likelihood of bias. The details don’t usually matter, can be misleading, and can be a waste of time on a tangential issue. Does it matter if Melissa testified that he was stealing and selling drugs to children versus that Matthew hid the drugs at Howard’s fishing camp near Lake Monroe? It is not clear that one makes Howard angrier than the other, but the details vary in their prejudicial effect. Even if evidence is admissible to show bias, Rule 403 may be invoked to limit questioning about the details.

Questions? Email tanford@indiana.edu, and refer to 1016.

Finally, let’s look at a common and controversial form of impeachment -- evidence of criminal record.

Rule 609 has two parts -- 609(a)(1) allows proof of felony convictions, and 609(a)(2) allows proof of convictions for crimes involving dishonesty or false statement. The latter clearly has probative value to impeach a witness’s credibility; the former equally clearly does not. Just because a witness once committed felonious battery out of anger, or burglary out of financial desperation, or drug possession because of addiction, tells us nothing about the witness’s likelihood of being truthful in this case.

It also poses a tremendous problem for criminal defendants If they have a prior felony record and take the stand to deny guilt, the prosecutor can impeach them by proving the conviction. Dozens of psychology studies show that jurors are considerably more likely to convict after hearing about a past crime.

This is especially problematic for minorities. Because of past patterns of law-making and policing, African-Americans are two to three times more likely than whites to be charged with a crime rather than released, to be charged with a felony rather than a misdemeanor, to be waived from juvenile to adult court, to not get a plea deal reducing a felony to a misdemeanor, and therefore to end up with a felony record.

So why do almost all states routinely allow impeachment by proof of felony conviction? Because we are a conservative profession that adheres to precedent.  We’ve always done so, so we continue to do so.

How did it start? As a compromise to liberalize the system. If you go back far enough in common law, felons were “infamous.” Their lands were forfeited, and they were all facing execution, so they were incompetent to be witnesses at all -- a condemned man could not be trusted to tell the truth. It was considered a great social advance to make some felonies not subject to the death penalty, and to allow felons to testify but inform jurors of their status.

Items 9 through 14 raise issues of impeachment by proof of past criminality. First, let’s look at how one objects.

How would the defense object to these questions?  Each objection will be slightly different, so if you really want to make sure you know this stuff, write them down before going on to the next page