Monday, August 29, 2011

Intro to the Federal Rules of Evidence - 45

F. Religious Beliefs or Opinions (FRE 610)
FRE 610 provides that the nature of a witness’s religious beliefs or opinions is not admissible either to impeach or support the witness’s credibility.

Intro to the Federal Rules of Evidence - 44

6. Contradictory Facts
The purpose of impeachment by contradiction may be included in “for other purposes” under 404 (b).

Ethics rules are particularly important here. The cross examiner cannot suggest a contradictory fact unless he has a good-faith basis for doing so and can prove the fact when required to do so.
If the witness does not admit it, the cross-examiner must prove up the non-collateral facts with extrinsic evidence.

7. Mental or Sensory Perception Problems
There is no federal rule on this type of impeachment but plenty of cases.
A witness may be impeached by showing that he had no knowledge of the facts to which he testified, or that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross examination or by the use of extrinsic evidence.

Intro to the Fereal Rules of Evidence - 43


5. W’s Bias/ interest
Although there is no rule on bias in the Federal Rules, in the United States v. Abel, 469 U.S. 45, 51 (1984), the Supreme Court held that impeachment of a witness for bias was proper.

a. Rationale
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie.

b. Examples of bias
i) a friendly feeling: a personal relationship,
ii) hostility to a party
iii) self-interest in the outcome.
iv) a member of an organization

c. Foundation
i) Cross examination
The examiner may cross-examine the witness to show bias without laying any foundation.
ii) Extrinsic evidence
The FRE do not explicitly require a foundation – that is, only after the witness is asked about an alleged bias and denies it - before extrinsic evidence of bias may be introduced. Under FRE 611(a), however, a court my require at its discretion that a foundation be laid before the extrinsic evidence is introduced.

Intro to the Federal Rules of Evidence - 42

4. Prior Inconsistent Statement (FRE 613(b))
a. Requirements
i) Foundation
Before the statement may be introduced, the witness must be given a chance to deny having made it or to explain away the inconsistency.

But extrinsic evidence need not be shown to the witness before the inconsistency is revealed (FRE 613(a)).

1) Court’s discretion to dispense with the requirement of the chance to deny or explain :
“[I]f the interests of justice otherwise require.”

ii) No extrinsic evidence on collateral matters

iii) Parties not covered
The requirements of foundation and no extrinsic evidence on collateral matters apply only where the witness is not a party. If the witness is a party, his prior inconsistence statement is substantively admissible as an admission, since admission do not fall within the hearsay rule. See the last sentence of FRE 613 (b).
b. Method
i) on X-X
ii) Extrinsic evidence, subject to the collateral evidence rule (FRE 403).
c. 613(b) v. 801(d)(1)(A)
Prior inconsistent statements made under oath at a trial, hearing, or other proceedings are admissible for both their truth (as substantive evidence) and impeachment. But those not made under oath can be admissible only for impeachment.

Whenever a witness impeached with a prior inconsistent statement not made under oath, the judge must, on request of a party, instructs the jury to consider the statement only for the limited purpose of assessing the witness’s credibility and for no other purpose.