Transcript IMPEACHMENT AND CROSS

IMPEACHMENT AND
CROSS- EXAMINATION
NEWSPAPER STORY 10/20/11
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Judge dismisses sexual assault charges
against prosecutor for failure to include
exculpatory evidence to Grand Jury
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Vic had civil action pending and settled for
$450,000.
Note: Both sides agree that certain acts
occurred. Defense says it was consensual.
Story goes on to detail:
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1) vic went to lunch with her colleague, the
prosecutor, with the intent to have sex;
2) DA’s office waited 4 months after notice of event to
report it to police;
3) DA’s office allowed prosecutor to continue to try
sexual assault cases during that time;
4) prosecutor had run against elected DA 3 times in
past;
5) Elected DA was retiring and supported candidate
#1 and prosecutor openly supported candidate #2
6) Elected DA did not report to police because he was
concerned that Vic was trying to leverage a
permanent job out of the situation
Hypos not based on facts in
newspaper story - What if:
Prosecutor had reputation for philandering
and broken marriages?
 Prosecutor had reputation for cheating in
his cases?
 Vic had psychiatric history?
 Vic had been caught with a false ID in
college?
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Another Hypo
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3 defendants kill a drug dealer over who controls a spot
The 3 D’s are gang members
The vic and the 3 D’s all have prior convictions – vic for drug
dealing; the 3 D’s for autotheft, terrorizing threats and drug dealing
1 D is running a prostitution business with his GF, who will testify in
his behalf
2 prosecution witnesses are on probation at the time of trial
1 D gave alibi statement; another a self defense statement
describing what all three did in the killing – both will testify
somewhat or completely differently
All percipient witnesses will testify to significant differences in the
facts when compared to what they said to the police and what they
testified to at PX
There is evidence that gang members associated with the 3 D’s
have engaged in a pattern of threats and intimidation against several
of the percipient witnesses who have large changes in their stories
Impeachment & Cross-Examination
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Scope
Who may impeach
Prior inconsistent stats
Prior consistent stats
Contradiction
Character of witness
Capacity to perceive,
recollect, communicate
Bias or interest
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Threats
Religious beliefs
Limits on complaining
witness in sex offenses
Criminal defendants
Suppressed evidence
Hearsay declarants
Expert
testimony/credibility
Ethical constraints
Impeachment & Cross-Examination
The Scope of Cross-Examination:
Definition – cross-examination is the
questioning of a witness by a party other than
the direct examiner on a matter within the
scope of the direct examination of the
witness.
Impeachment & Cross-Examination
The Scope of Cross-Examination:
Usually allows examination into bias, motive or
interest; inferences drawn in direct; and facts
sought to be established on direct.
Credibility of the witness is always within the
scope of the direct examination
Impeachment & Cross-Examination
The Scope of Cross-Examination:
Credibility of the witness is always within the
scope of the direct examination
Impeachment & Cross-Examination
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General rule in determining credibility:
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The fact finder may consider any matter that
has any tendency in reason to prove or
disprove the truthfulness of witness’ testimony
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Evid. Code sec. 780
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FRE 401 and 402
Impeachment & Cross-Examination
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Sec. 780: Except as otherwise provided by
statute, the court or jury may consider in
determining the credibility of a witness any
matter that has any tendency in reason to prove
or disprove the truthfulness of his testimony at
the hearing, including but not limited to any of
the following:
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(a) His demeanor while testifying and the manner in
which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect,
or to communicate any matter about which he
testifies.
Impeachment & Cross-Examination
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Sec. 780: Except as otherwise provided by statute, the
court or jury may consider in determining the credibility
of a witness any matter that has any tendency in reason
to prove or disprove the truthfulness of his testimony at
the hearing, including but not limited to any of the
following:
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(d) The extent of his opportunity to perceive any matter about
which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other
motive.
(g) A statement previously made by him that is consistent with
his testimony at the hearing.
Impeachment & Cross-Examination
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Sec. 780: Except as otherwise provided by statute, the
court or jury may consider in determining the credibility
of a witness any matter that has any tendency in reason
to prove or disprove the truthfulness of his testimony at
the hearing, including but not limited to any of the
following:
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(h) A statement made by him that is inconsistent with any part of
his testimony at the hearing.
(i) The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward
the giving of testimony.
(k) His admission of untruthfulness.
Impeachment & Cross-Examination
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Compare CALJIC 2.20 and CALCRIM 226
CALJIC 2.20
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Every person who testifies under oath [or
affirmation] is a witness. You are the sole judges
of the believability of a witness and the weight to
be given the testimony of each witness.
In determining the believability of a witness you
may consider anything that has a tendency
reasonably to prove or disprove the truthfulness
of the testimony of the witness, including but not
limited to any of the following:
CALJIC 2.20
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The extent of the opportunity or ability of the witness to see or hear
or otherwise become aware of any matter about which the witness
testified;
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The ability of the witness to remember or to communicate any
matter about which the witness has testified;
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The character and quality of that testimony;
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The demeanor and manner of the witness while testifying;
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The existence or nonexistence of a bias, interest, or other motive;
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The existence or nonexistence of any fact testified to by the witness;
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The attitude of the witness toward this action or toward the giving of
testimony .
CALJIC 2.20
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A statement [previously] made by the witness
that is [consistent] [or] [inconsistent] with [his]
[her] testimony;
The character of the witness for honesty or
truthfulness or their opposites;
An admission by the witness of untruthfulness;
The witness' prior conviction of a felony;
Past criminal conduct of a witness amounting to
a misdemeanor;
Whether the witness is testifying under a grant of
immunity.
CALCRIM 226
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You alone must judge the credibility or
believability of the witnesses. In deciding
whether testimony is true and accurate, use your
common sense and experience. You must judge
the testimony of each witness by the same
standards, setting aside any bias or prejudice
you may have.
You may believe all, part, or none of any
witness's testimony. Consider the testimony of
each witness and decide how much of it you
believe.
CALCRIM 226
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In evaluating a witness's testimony, you may consider anything that
reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are:
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How well could the witness see, hear, or otherwise perceive the
things about which the witness testified?
How well was the witness able to remember and describe what
happened?
What was the witness's behavior while testifying?
Did the witness understand the questions and answer them directly?
Was the witness's testimony influenced by a factor such as bias or
prejudice, a personal relationship with someone involved in the
case, or a personal interest in how the case is decided?
What was the witness's attitude about the case or about testifying?
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CALCRIM 226
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In evaluating a witness's testimony, you may consider anything that
reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are:
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Did the witness make a statement in the past that is consistent or
inconsistent with his or her testimony?
How reasonable is the testimony when you consider all the other evidence
in the case?
Did other evidence prove or disprove any fact about which the witness
testified?
Did the witness admit to being untruthful?
What is the witness's character for truthfulness?
Has the witness been convicted of a felony?
Has the witness engaged in [other] conduct that reflects on his or her
believability?
Was the witness promised immunity or leniency in exchange for his or her
testimony?
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CALCRIM 226
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Do not automatically reject testimony just
because of inconsistencies or conflicts.
Consider whether the differences are
important or not. People sometimes
honestly forget things or make mistakes
about what they remember. Also, two
people may witness the same event yet
see or hear it differently.
CALCRIM 226
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If the evidence establishes that a witness's character for truthfulness
has not been discussed among the people who know him or her,
you may conclude from the lack of discussion that the witness's
character for truthfulness is good.
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If you do not believe a witness's testimony that he or she no longer
remembers something, that testimony is inconsistent with the
witness's earlier statement on that subject.
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If you decide that a witness deliberately lied about something
significant in this case, you should consider not believing anything
that witness says. Or, if you think the witness lied about some
things, but told the truth about others, you may simply accept the
part that you think is true and ignore the rest.
Impeachment & Cross-Examination
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The Federal Rules have no provision
equivalent to Evid. Code sec. 780,
however, FRE 401 and 402 cover the
same territory:
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401: Definition of relevant evidence
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definition certainly covers impeachment of a
witness
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402: makes relevant evidence admissible
Impeachment & Cross-Examination
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Q: Who may impeach a witness?
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A: Any party – you can impeach a witness
during direct or cross examination
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Authority: FRE 607 and Evid. Code sec.
785
Impeachment & Cross-Examination
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Prior Inconsistent Statements
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FRE 613 & Evid. Code sec. 1235/770
Statement must be inconsistent with present
testimony
Must allow opportunity to explain (direct confrontation
or subject to recall)
Extrinsic evidence of prior inconsistent statement
allowed
California – may be offered for the truth of the matter
stated in the prior inconsistent statement.
FRE – if offered pursuant to Rule 613, use is limited
to impeachment, not for truth. To be offered for truth,
must meet the requirements of Rule 801(d)(1)(A).
Impeachment & Cross-Examination
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Prior Consistent Statement
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FRE 801(d)(1)(B) & Evid. Code sec. 1236/791
Impeachment & Cross-Examination
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Contradiction – During the course of a
witness’s testimony, he or she will
normally state that certain facts occurred.
Proof that even one of them actually did
not occur is indicative of a general lack of
credibility. In fact, juries are instructed that
a witness who is willfully false in one part
of their testimony is not to be trusted in
others.
Impeachment & Cross-Examination
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Contradiction –
The issue becomes how much latitude the court will
allow in permitting proof of the existence or nonexistence of a fact testified to by the witness.
352 weighing required – the closer the fact is to core
issues in the trial, the more latitude is likely to be given.
Note that additional concerns re: misuse by the jury or
confusion of issues, arise when the witness is the
accused.
See People v. Doolin (2009) 45 Cal.4th 390, 433439 [direct & cross of defendant & expert; also
rebuttal case disproving facts about which they
testified].
Impeachment & Cross-Examination
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Character of the Witness
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1. Prior Bad Acts
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2. Prior Convictions
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3. Reputation & opinion concerning veracity
Impeachment & Cross-Examination
Character – Prior bad acts
 Common law rule – allowed the cross
examiner to impeach by inquiring into acts
of misconduct that did not result in a
conviction.
 Dear Abby – Waltz, Park, Freidman text at
pp.494-495
Impeachment & Cross-Examination
Character – Prior bad acts
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FRE 608(b) – allows limited inquiry on
cross-examination – if on subject of
character for truthfulness and bars proof
by extrinsic evidence
Impeachment & Cross-Examination
Character – Prior bad acts
 California – Evidence Code bars proof of prior bad acts
by statute (sec. 787)
 Prop 8 – Right to truth-in-evidence abrogates sec. 787 in
criminal cases –see P. v. Wheeler (1992) 4 Cal.4th 284
 Sec. 787 still applies in civil cases, in conjunction with
sections 786 and 790:
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i.e., impeachment on character is limited to traits of honesty or
veracity or their opposites; specific instances of conduct is
barred (limited to reputation/opinion) and evidence of good
character can only be offered after character attacked
Impeachment & Cross-Examination
Character – prior convictions
 Common rule – a witness could be
impeached with a prior conviction of a
crime
 FRE – 609
 Evid. Code – 788
v. Wheeler – misdemeanor convictions and
prior bad acts not resulting in convictions
 P.
Impeachment & Cross-Examination
Character – prior convictions
 FRE 609(a)(1) – if witness other than accused –
evidence of conviction SHALL be admitted if
punishable by death or more than 1 year in
prison - If accused – subject to 403 weighing
 FRE 609(a)(2) – as to any witness, evidence of
conviction SHALL be admitted if elements of
crime include act of dishonesty or false
statement
 FRE 609(b) – presumptive 10 year wash,
subject to 403 weighing
Impeachment & Cross-Examination
Character – prior convictions
 Evid. Code – 788 – says “convicted of a felony”
 Case law required statute to be applied via 352 weighing
and developed 5 prong “Beagle” test for this weighing:
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1. bearing on character for truthfulness/veracity
2. remoteness
3. similarity
4. numerosity
5. will it influence decision to testify (particularly def.)
This test was used to exclude impeachment with priors
Criticism: “gave def. with priors false aura of veracity”
Applied in civil and criminal cases
Impeachment & Cross-Examination
Character – prior convictions
 Concept of Sanitizing:
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No cleansing – the nature of the prior is what is probative on
credibility; sanitizing increases danger of prejudice b/c
encourages adverse inferences on credibility from felonies that
have much less value for that purpose
Full cleansing – limits probative value of priors; also limits 2
forms of prejudice, 1) the jury hostility to witness from the nature
of the prior conviction; 2) limits prejudice flowing from prior that is
identical or too similar to charged offense
Partial cleansing – effort to have the best of both worlds;
however, less probative and still vulnerable to prejudicial effects
of both other methods
Impeachment & Cross-Examination
Character – prior convictions
 Prop 8 and People v. Castro (1985) 38 Cal.3d 115
 Although Prop. 8 mandates impeachment by any felony conviction
“without limitation”, due process requires exclusion of convictions
that do not involve “moral turpitude”
 “moral turpitude” means a witness’s moral depravity of any kind
shows a readiness to do evil, which has a tendency in reason to
shake one’s confidence in his or her honesty
 Additionally, Prop. 8 retains court’s discretion to exclude under sec.
352
 Castro retained the Beagle factors as guidance in evaluating the
probative value and the prejudicial effect
 Prop.8 and Castro changed the playing field – now the test is used
to allow impeachment with priors
 Note: An argument can be made that the old Beagle test still
prevails in a civil case
Impeachment & Cross-Examination
Character – prior convictions
 Prop. 8 and People v. Wheeler
 Evid. Code bars impeachment with misdemeanor convictions (sec.
787 [subject to 788, no specific instances of conduct] and 788 [may
impeach with felony conviction])
 Now can impeach with specific instances of conduct in crim. case,
including misdemeanor conviction.
 Problem: proof of conviction is hearsay [a judge’s out of court
pronouncement that witness stands convicted of a crime, offered to
prove that witness is convicted of that crime] –what do we do if there
is a hearsay objection?
 Question: Why isn’t a felony conviction similarly vulnerable to a
hearsay objection?
 Note: Wheeler analysis also permits specific instances of moral
turpitude conduct to impeach where no conviction occurred.
Impeachment & Cross-Examination
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Character – reputation & opinion
concerning truthfulness and veracity
FRE 608(a) – opinion or reputation evidence
so long as: 1) limited to character for
truthfulness or untruthfulness; and 2)
evidence of truthful character is admissible
only after character of witness has been
attacked.
 FRE 608(b) – specific instances of conduct on
cross in discretion of court if probative on
issue of truthful character
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Impeachment & Cross-Examination
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Character – reputation & opinion
concerning truthfulness and veracity –
California Civil cases:
Evid. Code sec. 786 – limited to character
traits of truthfulness and veracity
 Evid. Code sec. 787 – bar on specific
instances of conduct
 Evid. Code sec. 790 – cannot offer evidence
of good character for truthfulness unless first
attacked
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Impeachment & Cross-Examination
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Character – reputation & opinion
concerning truthfulness and veracity –
California Criminal cases:
Evid. Code sec. 786, 787 & 790 abrogated by
Prop. 8 Truth-in-Evidence provision
 Specific instances of conduct permitted
 Offer of good character for truth permitted
without character first being attacked
 Subject to sec. 352 weighing
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Impeachment & Cross-Examination
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CHARACTER – REPUTATION & OPINION
CONCERNING TRUTHFULNESS AND
VERACITY
Limits on the use of extrinsic evidence
FRE 608(b) – can ask about specific instances of
conduct probative to character for truthfulness to
support or attack credibility –
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Subject to 403 weighing
May not prove specific instance by extrinsic evidence
Compare Evid. Code sec. 787- bar on use of specific
instances of conduct
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Overruled by Proposition 8 (Right to truth in evidence)
Thus, admissible subject to sec. 352 weighing
Impeachment & Cross-Examination
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Capacity:
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1. To understand
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2. To perceive
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3. To recollect
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4. To communicate
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5. Personal Knowledge
Impeachment & Cross-Examination
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Capacity – to understand duty to tell truth
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FRE 603 7 Evid. Code sec. 701(a)(2) &
710
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A witness must be able to understand the
difference between the truth and a lie and
must take an oath promising to tell the
truth.
Impeachment & Cross-Examination
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Capacity – to perceive
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Evid. Code sec. 780(c) & 780(d)
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Extent of opportunity to perceive (poor eyesight,
poor lighting, no eyewear, obstructions,
competing noise, language issues, etc.)
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Mental health, drug use, and alcohol issues
Impeachment & Cross-Examination
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Capacity – to recollect
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Evid. Code sec. 780(c)
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Mental health, drug use, and alcohol
issues
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Cf. past recollection recorded and
refreshing recollection
Impeachment & Cross-Examination
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Capacity – to communicate
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Evid. Code sec. 701(a)(1) & 780(c)
Impeachment & Cross-Examination
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Capacity – Personal knowledge
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FRE 602 & Evid. Code sec. 702(a)
To testify to a particular matter a witness must
have personal knowledge of it; such
knowledge may be establish by the witness’s
own testimony as well as by other evidence.
 Exception: expert testimony
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Impeachment & Cross-Examination
BIAS, INTEREST OR MOTIVE
The fact finder may consider the existence or
non-existence of a bias, interest or motive on
the part of the witness. Such evidence may
cast doubt on the accuracy of the witness’s
testimony.
Note: Bias, interest or motive either may be in
favor of one side or hostile to one side.
Impeachment & Cross-Examination
BIAS, INTEREST OR MOTIVE
RELATIONSHIPS: family, sexual, employment,
friendship
MEMBERSHIP: teammates, club or social order,
religious congregations, gangs*, F.O.P., MADD, same
neighborhood
PAST HISTORY: enemies, cell mates, past crime
partners, Prosecutor’s office previously charged
husband, revenge, reward
FINANCIAL CONCERNS: expert witness fees, book
deal, civil suit attendant to criminal case
PENAL CONCERNS: immunity, seeking leniency,
probation or parole, pending charges
ATTITUDES: racial, gender, sexual orientation, prodefense or prosecution, activist – political, environmental
Impeachment & Cross-Examination
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Threats:
To properly evaluate the witness’ credibility the finder of
fact is entitled to know that there have been threats, and
subject to sec. 352, the nature of the threats.
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See discussion in People v. Guerra (2006) 37 Cal.4th 1067,
1140-1143.
A witness who testifies despite threats may be more credible
because of that personal stake in the matter.
Evidence of threats to a witness may be useful to the jury in
evaluating testimony and prior inconsistent statements
Impeachment & Cross-Examination
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Threats:
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From defendant – a significant threshold level of proof
connecting the threats to the defendant is required before such
evidence will be admitted (Peo. V. Williams (1997) 16 Cal.4th
153, 197-201.)
From a witness – relevant both as to the maker and the recipient
of the threats (informant Steele – Peo. V. Mickle (1991) 54
Cal.3d 140, 167-169.)
From any source, known or unknown – evidence that a witness
is afraid to testify or fears retaliation is admissible because it
bears on credibility. (Peo. V. Harris (2008) 43 Cal.4th 1269,
1288-1290.)
From the prosecution – where overreaching by police or
prosecution occurs, e.g. pressure to testify to a specific version
of the facts or face more severe charges (Peo. V. Badgett (1995)
10 Cal.4th 330, 352-363.)
Impeachment & Cross-Examination
RELIGIOUS BELIEFS
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Rule: Evidence of a witness’ religious beliefs is
inadmissible to attack or support credibility
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FRE 610
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Evid. Code sec. 789
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Caveat: case law has upheld Prop. 8 and invalidated sec. 786,
787 and 790 in criminal cases – if challenged sec. 789 likely to
meet same fate; however, sec. 352 weighing still applies.
Impeachment & Cross-Examination
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Statutory limits on cross-examination of the complaining
witness in sex offense cases (“Rape Shield Law”)
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FRE: 412
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Evid. Code sec. 782, 783 & 1103
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Severe limitations on admissibility of evidence of sexual
behavior of C.W. with persons other than the accused;
Admissibility determination is multi-step process
designed to protect victims while maintaining fair trial
rights
Note: Applies to both criminal and civil cases
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Impeachment & Cross-Examination
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FRE 412
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Sub.(a): in cases involving alleged sexual misconduct – evidence offered to
prove victim engaged in other sexual behavior and evidence offered to prove
victim’s sexual predisposition is inadmissible except as provided by sub. (b) & (c)
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Sub.(b): 1) in criminal case: A) evidence of specific instances of sexual behavior
to prove another was source of semen, injury or other physical evidence; B)
evidence of specific instances of conduct with the accused to prove consent or
by the prosecution; C) evidence which, if excluded, would violate defendant’s
constitutional rights.
2) in civil case: evidence to prove sexual behavior or predisposition of victim is
admissible if probative value outweighs danger of harm to any victim and of
unfair prejudice to any party. Reputation evidence of victim is admissible only if it
has been placed in controversy by victim.
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Sub.(c): requires written notice specifically describing the evidence and the
purpose for which it is offered; requires notice to be served on parties and on the
victim.
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Requires court to conduct in camera hearing giving everyone the opportunity to be
heard and requires all documentation of issue to remain under seal.
Impeachment & Cross-Examination
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Evid. Code sec. 1103(c)(1) – bars opinion, reputation and specific
instances of conduct evidence concerning sexual conduct of C.W. to
show consent
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Sec. 1103(c)(2) – presumptively bars evidence of C.W.’s manner of
dress at time of offense to show consent
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Evid. Code sec. 782 – if offered to attack character of C.W.: 1)
written offer of proof detailing behavior and relevance; 2) must
include affidavit filed under seal (containing alleged behavior); 3) if
offer sufficient, hearing outside presence of jury; 4) if court finds
evidence is relevant and not excluded by 352, court makes an order
stating what questions will be permitted; 5) affidavit remains sealed
unless appeal, and then only open to appellate attorneys.
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Evid. Code sec. 783 – procedure in civil cases – somewhat less
stringent
Impeachment & Cross-Examination
Criminal Defendants
 Rule: a criminal defendant gives up the privilege
against self incrimination only with regard to
those subjects testified to on direct.
 Rule: if a criminal defendant denies the evidence
against him or makes a general denial of the
crime, the scope of cross-examination is very
wide
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E.g. the prosecutor may fully amplify defendant’s
testimony by inquiring into all facts and circumstances
surrounding his assertions, or by introducing evidence
through cross-examination that explains or refutes
statements or inferences to be drawn from testimony.
Impeachment & Cross-Examination
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Suppressed Evidence
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There are numerous situations where the prosecution
is barred from using certain evidence in its case-in
chief, but may be permitted to use such evidence to
impeach a defendant who has testified inconsistently.
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Evidence suppressed under 4th Amendment
Testimony from a suppression motion hearing
Statement taken in violation of Miranda
Testimony from a probation violation hearing
A minor’s statements to a probation officer
A statement made during the course of plea negotiations
Impeachment & Cross-Examination
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Hearsay Declarants:
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Impeachment of hearsay declarant –
FRE 806 & Evid. Code sec. 1202
Rule 806: Attacking and Supporting
Credibility of Declarant
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When a hearsay statement, or a statement defined in
Rule 801(d)(2)(C), (D), or (E), has been admitted in
evidence, the credibility of the declarant may be
attacked, and if attacked may be supported, by any
evidence which would be admissible for those purposes
if declarant had testified as a witness. Evidence of a
statement or conduct by the declarant at any time,
inconsistent with the declarant's hearsay statement, is
not subject to any requirement that the declarant may
have been afforded an opportunity to deny or explain. If
the party against whom a hearsay statement has been
admitted calls the declarant as a witness, the party is
entitled to examine the declarant on the statement as if
under cross-examination.
Evid. Code 1202:Credibility of Hearsay
Declarant

Evidence of a statement or other conduct by a declarant
that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not
inadmissible for the purpose of attacking the credibility of
the declarant though he is not given and has not had an
opportunity to explain or to deny such inconsistent
statement or other conduct. Any other evidence offered
to attack or support the credibility of the declarant is
admissible if it would have been admissible had the
declarant been a witness at the hearing. For the
purposes of this section, the deponent of a deposition
taken in the action in which it is offered shall be deemed
to be a hearsay declarant.
IMPEACHMENT OF HEARSAY
DECLARANT (cont)

Inconsistent statements
Prior or subsequent (fairness to opponent)
 Admissible to impeach but not for truth

 Exception:
Evid. Code sec. 1294
 Proponent of hearsay loses opportunity to have
declarant explain inconsistency
 Cf FRE 613(a) & (b); 801(d)(1); Evid. Code sec
1235

Prior convictions
Impeachment & Cross-Examination

Expert Testimony and Credibility
Traditional Rule: Expert testimony to support
or attack credibility is inadmissible
 Experts still barred from offering opinion on
whether witness is telling the truth in this case
 Cf. lay witnesses: not allowed to opine
whether another witness is telling the truth,
but are allowed to testify as to whether
witness has a reason to lie in this case (e.g.
bias, motive or interest)

Impeachment & Cross-Examination

Expert Testimony and Credibility


More recent approach: permits limited use of expert
testimony to describe how witness or defendant acted
in conformity with syndrome (e.g. Rape Trauma
Syndrome; Child Accommodation Syndrome;
Battered Women’s Syndrome)
Allows expert testimony to explain aspects of pattern
of behavior noted in literature where relevant in case
at hand (e.g. delay in reporting; or recantation or
refusal by family to report; or perceived need to
defend self with lethal force where no imminent threat
present)
Impeachment & Cross-Examination

Ethical Constraints:




Good faith basis for question, inference or
impeachment (prior bad acts, convictions or
reputation for veracity)
Duty to guard against answer containing inadmissible
evidence
Duty to avoid presenting false testimony – (must
know, rather than merely suspect, testimony is false)
Fed. Court – prosecutors may not call a witness soley
for purpose of impeaching witness with prior
inconsistent statement that would otherwise be
inadmissible