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IMPEACHMENT & REHABILITATION

IMPEACHMENT & REHABILITATION. Judicial Conclave 2013. MANY THANKS!. Rebekah Gallegos Jeff Hoffman Jason Kerkmans Jeff Mitchell Students are the best thing about teaching!. ROADMAP. A little bit of Bentham. Who may impeach? Impeaching a witness’s character for truthfulness.

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IMPEACHMENT & REHABILITATION

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  1. IMPEACHMENT & REHABILITATION Judicial Conclave 2013

  2. MANY THANKS! • Rebekah Gallegos • Jeff Hoffman • Jason Kerkmans • Jeff Mitchell • Students are the best thing about teaching!

  3. ROADMAP • A little bit of Bentham. • Who may impeach? • Impeaching a witness’s character for truthfulness. • Using prior inconsistent statements. • Bias. • Incapacity. • Specific Contradiction/Collateral Evidence • Rehabilitation • Impeachment by conviction

  4. No evidence lecture is complete without a reference to Jeremy Bentham! "[T]he system, taken in the aggregate, is repugnant to the ends of justice; and . . . this is true of almost every rule that has ever been laid down on the subject of evidence." Jeremy Bentham, Rationale of Judicial Evidence (1827).

  5. The PURPOSE of the RULES: • to ensure that the trial is fair • to ensure that the trial is accurate • to ensure that the trial is efficient • to ensure that societal interests are vindicated • Jeremy Bentham?

  6. Bentham on the purpose of the rules: • To make money for “Judge & Company”!

  7. IMPEACHMENT & REHABILITATION OF WITNESSES

  8. FIVE CATEGORIES OF IMPEACHMENT • 1) Dishonesty (the witness is dishonest!) • 2) Inconsistency (self-contradiction) • 3) Bias • 4) Incapacity (you couldn’t see; you were under the influence) • 5) Specific contradiction (She says it was snowing that day – but it wasn’t! We shouldn’t trust anything she says!)

  9. IMPEACHMENT – EXHIBIT A!

  10. IMPEACHING WITNESSES • THE STARTING POINT: THE GENERAL BAN ON CHARACTER EVIDENCE IN RULE 11-404 11-404(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.

  11. EXCEPTION FOR WITNESSES: Rule 11-404(A)(3) (3) Exceptions for a witness. Evidence of a witness’s character may be admitted under Rules 11-607, 11-608, and 11-609 NMRA.

  12. A word from the lateProfessor H. Richard Uviller on impeachment: “It is remarkable that a set of assumptions so far from the lessons of experience could support a fully developed and widely observed structure of litigation law.” What is Professor Uviller talking about?

  13. Why just evidence of truthfulness? • Character evidence of witness truthfulness (which can come in) is somehow more predictive than character for thievery or violence (which generally cannot be admitted)? • Do you agree?

  14. WWJBS?

  15. Rule 11-607. Who may impeach a witness. Any party, including the party that called the witness, may attack the witness’s credibility. BUT what? ANY LIMIT ON THAT?

  16. The Rule from U.S. v. Morlang, 531 F.2d 183 (4th Cir. 1975). • A party cannot call a witness solely for the purpose of impeaching the witness. • Why not?

  17. The Morlang Rule • That would be back-dooring hearsay! • EXAMPLE: • DV victim recants at trial; impeached with grand jury testimony. • Subsequently, the court orders a mistrial. • Next trial, the prosecution calls DV victim again. • THIS TIME: SOLELY FOR THE PURPOSE OF BACKDOORING IN HER GRAND JURY STATEMENT. • NOT PERMITTED!

  18. State v. Lopez, 2011-NMSC-035,150 N.M. 179 (2011) • How do you tell when a party is doing that? • Lopez: Is the testimony mostly “favorable” or “unfavorable”? • If the DV victim is solely recanting, it is UNFAVORABLE to the State, and he or she is only being called to be impeached.

  19. State v. Lopez • Favorable: does it go to the substance of the matter in controversy (in Lopez, who killed the victim)? • Unfavorable: is it “affirmatively harmful” to the proponent of the witness’s testimony? • So long as it’s both, the witness can be impeached on a matter, if necessary. • But not if it is SOLELY UNFAVORABLE testimony to the proponent.

  20. Rule 11-608. A witness’s character for truthfulness or untruthfulness. (A) Reputation or opinion evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for untruthfulness has been attacked . . . .

  21. 11-608 • Preference: opinion or reputationas to truthfulness. • Must be an attack on witness’s truthfulness before a litigant can support the witness’s character for truth. • Otherwise: wasteful bolstering!

  22. 11-608 • Don’t forget: PARTIES can be witnesses! • The rule applies the same way to all testifying witnesses.

  23. BASIC EXAMPLE: impeaching the expert in Charter v. Chleborad, 551 F.2d 246 (8th Cir. 1977) • Medical malpractice case. • Plaintiff’s expert testified that it was a botched surgery. • Defense calls an attorney who says the expert has a reputation for dishonesty. • PROPER!Under Rule 608, the expert could be impeached by testimony that he had a reputation for dishonesty.

  24. Rule 11-608(B)Specific instances of conduct. (B) Specific instances of conduct. Except for a criminal conviction under Rule 11-609 NMRA, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. . . . .

  25. EXAMPLE: Intrinsic v. Extrinsic • A witness who happens to be a lawyer testifies in a murder case. • Cross: “Isn’t it true that you lied on your application to the bar!?” [INTRINSIC] • If the witness denies it, can the bar application be admitted to impeach? [EXTRINSIC]

  26. NO! • ONLY INTRINSIC EVIDENCE IS PERMITTED: YOU CAN ASK BUT YOU ARE STUCK WITH THE ANSWER. • WHY?

  27. Preventing mini-trials! • Avoiding a side trial on the witness’s character for truthfulness. • Mini-trials on collateral issues . . . .

  28. ROLL THE VIDEOTAPE! [18] • Civil suit arising out of a real estate transaction. • The plaintiff has testified (a pre-requisite!). • The defendant presents a witness to testify that the plaintiff has a bad reputation for truthfulness. • The defense witness is now on the stand. FIRST OBJECTION. YOU ARE THE JUDGE [YOU REALLY ARE!]. WHAT IS YOUR RULING?

  29. CLICKERS!!!! (Turn them on!) • A) OBJECTION SUSTAINED! • B) OBJECTION OVERRULED!

  30. ANSWER: Objection sustained! Only the reputation for truthfulness is allowed. “TERRIBLE” is not clearly aimed at truthfulness. ROLL THE VIDEOTAPE! NEXT OBJECTION! YOU ARE THE JUDGE!

  31. CLICKERS!!!! • A) OBJECTION SUSTAINED! • B) OBJECTION OVERRULED!

  32. ANSWER: Overruled! • That’s proper. But sloppy explanation by defense for why it is OK. • WATCH AND JUDGE!

  33. WHAT’S WRONG WITH IT? • “The right of a party in a civil case to call a witness who can testify concerning the reputation of one of the parties for truthfulness and veracity.” Three technical errors? What are they?

  34. TECHNICAL ERRORS 1) Applies to witnesses in both civil and criminal cases. 2) You can impeach all witnesses, not just a party. 3) You can’t impeach all parties, just WITNESSES.

  35. Fair question under 11-608? • “Based on what you know of the plaintiff’s reputation, would you believe him under oath?” • Fair question? • (You don’t have to click every time!)

  36. ANSWER: FAIR QUESTION! • ACN to Fed. R. Evid. 608: “under modern practice, a common relaxation has allowed inquiry as to whether the witnesses would believe the principal witness under oath.” • But, it’s cumulative, as the judge points out.

  37. QUESTION! • Can plaintiff’s counsel now call a witness to rehabilitate the plaintiff’s character for truthfulness?

  38. YES! In what manner may that witness testify?

  39. OPINION OR REPUTATION: Rule 11-608. A witness’s character for truthfulness or untruthfulness. (A) Reputation or opinion evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. . . . .

  40. WELCOME JEFF MITCHELL • YOUR PROBLEM HOST!

  41. PROBLEM: SPECIFIC INQUIRY ON CROSS • Plaintiff lawyer in a race discrimination case testifies. • Claims his law firm terminated him because of his race. • Can defense counsel ask the plaintiff whether he has outstanding parking tickets (minor civil fine)? • CLICKERS: • A) YES • B) NO

  42. ANSWER! • NO! Not probative of truthfulness. PROBLEM: • What if defense counsel asks the plaintiff about stating that he had no outstanding parking tickets on his bar application when he in fact had several at the time?

  43. ANSWER! YES! Probative of untruthfulness. Defense counsel may ask. But if the witness denies it? BUT WHAT ARE THE LIMITS UNDER 11-608(B)?

  44. Limits under 11-608(B) • May not be proved with extrinsic evidence. • Defense counsel is STUCK WITH THE ANSWER! • ALSO, the question is subject to a GOOD FAITH requirement. • As well as 11-403.

  45. Rule 11-608(B)Specific instances of conduct. (B) Specific instances of conduct. Except for a criminal conviction under Rule 11-609 NMRA, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. . . . .

  46. So . . . . • PROBLEM: • In response to the question about the bar application (“Did you lie on it?”), the plaintiff testified that he had told no such lie. • Can defense counsel call a witness to prove the lawyer lied on his bar application?

  47. ANSWER! NO! Same issue! • 11-608(B) bars extrinsic evidence of specific instances of conduct offered to attack and support a witness’s character for truthfulness.

  48. PROBLEM: TAX FRAUD • Defendant in a tax fraud case testifies in her own defense. • Can the government ask her on cross examination about a deceptive resume she sent to a prospective employer? • CLICKERS: • A) YES • B) NO

  49. ANSWER: THEY CAN ASK • Counsel can ask, but is stuck with her answer. They cannot admit the resume if she denies it. • No extrinsic evidence of a specific act of dishonesty!

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