Witness impeachment

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Witness impeachment, in the law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial. There are a number of ways that a witness may properly be impeached, and several ways that, although effective, are prohibited except under special circumstances.

Methods of impeachment

A party may be impeached through introducing evidence of any of the following (remembered via the mnemonic BICCC:

• Bias--The witness is biased against one party or in favor of the other. The witness has a personal interest in the outcome of the case. A classic example is a witness for the prosecution who is awaiting sentencing. He's more likely to be pro-prosecution in hopes of better treatment. The proper way to handle this is first question the witness to see if he will admit to the bias. If not, then the cross-examiner may bring in other witnesses to expose the bias.
• Inconsistent Statement--The witness has made two or more conflicting statements. By exposing his conflicting statements, you reduce his credibility.
• Character Show that the witness has a community-recognized reputation for dishonesty. Specific examples are inadmissible, but presenting witnessess who can attest to the witnesses character are helpful. Coupled with character are prior criminal acts by the witness. This is handled in one of three ways:
  • If the witness has committed any crime involving dishonesty (i.e. larceny-by-trick, embezzlement, fraud, etc.) then the prior conviction is admissible under every circumstance. The judge cannot refuse this evidence because it is so probative of dishonesty.
  • If the witness is the criminal defendant, a felony conviction (i.e., conviction of a crime that is punishable of at least one year in prison or death, even though he may not have been imprisoned) is admissible if the judge determines that the probative value outweighs the potential for prejudice.
  • If the witness is not the criminal defendant, a felony conviction is admissible unless the judge determines that its prejudical nature substantially outweighs its probativity.
  • Stale felonies, that is, felonies where the witness was released at least ten years ago (or was found guilty ten years ago if no incarceration) are admissible only if the probative value substantially outweighs its prejudice.
• Competency Basically show that the witness was unable to sense what he claimed to have (i.e., could not see from where he was, etc.) or that he lacked the requisite mental capacity. Older common law would exclude an incompetent witness from testifying. Modern rules, and the Federal Rules of Evidence allow the witness on the stand (in most cases) considering competence but one of many factors juries are to consider when determining credibility of the witness.
• Contradiction This occurs when the witness is induced to contradict his own testimony during the present proceeding. This differs from inconsistent statements, above. Inconsistent statements involve statements made out-of-court (c.f. hearsay) or in prior proceedings. Contradiction involves the witness saying two different things while presently testifying.

Who may impeach?

Under the common law of England, a party could not impeach his own witness unless one of four special circumstances was met. This was due to the Voucher Rule, which required that the proponent of the witness "vouche" for the truthfulness of the witness. The special circumstances were:

1. If the witness was an adverse party (e.g. if the plaintiff called the defendant to the stand, or vice-versa.
2. If the witness was hostile (e.g. refused to cooperate).
3. If the witness was one that the party was required by law to call as a witness.
4. If the witness surprised the party who called him by giving damaging testimony against that party.

This rule has been eliminated in many jurisdications. Under the United States' Federal Rules of Evidence, (F.R.E. 607), any party may attack the credibility of any witness.

Bolstering and Rehabilitating

The general rule is that the proponent of a witness may not attempt to build up the witnesses credibility prior to his being impeached. The rational is that the witness is presumed trustworthy. It also speeds proceedings by not spending time bolstering when the other side may not even impeach the witness.

In order to rehabilitate a witness, the proponent is confined to using the same techniques used by the opponent. That is, if the opponent impeached via bias, then rehabilitation is limited to bias. The exception is with inconsistent statements. Showing that a witness gave more positive statements than negative is considered not probative enough to allow--it only further shows he is not credible.