Impeachment under federal law

Pattern Jury Instructions for the Eleventh Circuit are available at:
http://www.ca11.uscourts.gov/documents/index.php

8.1 Impeachment Generally, 511-21

Methods of Impeachment:

  • (1) Bias/Corruption:
    showing that the witness has some bias, animus, motivation, or corruption that might lead him to fabricate or shade his testimony to help or hurt one of the parties;
  • (2) Mistake:
    showing a defect in his sensory or mental capacity (perception or memory) that undercuts his testimony, and 
  • (3) Liar/Character:
    showing that he is by disposition untruthful.

    • (a) cross-examining the target witness about nonconviction misconduct casting doubt on his honesty (Rule 608(b))
    • (b) cross-examining him about convictions for certain kinds of criminal acts (Rule 609), and 
    • (c) testimony by a character witness that the target witness is untruthful (Rule 608(a)).
  • (4) Inconsistent statements:
    showing that the witness has made a prior inconsistent statement [FRE 801(d)(1)(A)]
  • (5) Contradiction:
    contradicting the witness –showing that he is just plain wrong on one or another point in his testimony. [FRE 613(b)] [Rule 609]

Types of Impeachment

  • Specific: the impeachment brings into question specific parts of testimony
  • Definitive: there is a particular definitive reason to doubt the witness.

Casebook

  • [CB] The first three methods are definite but nonspecific: They are definite in telling the trier why to doubt the witness, but nonspecific in not showing what testimony to doubt. They include (1) showing that the witness has some bias, animus, motivation, or corruption that might lead him to fabricate or shade his testimony to help or hurt one of the parties, (2) showing a defect in his sensory or mental capacity (perception or memory) that undercuts his testimony, and (3) showing that he is by disposition untruthful. A party may mount this third attack in three different ways, including (a) cross-examining the target witness about nonconviction misconduct casting doubt on his honesty (Rule 608(b)), (b) cross-examining him about convictions for certain kinds of criminal acts (Rule 609), and (c) testimony by a character witness that the target witness is untruthful (Rule 608(a)).
  • [CB] The fourth and fifth methods are specific but indefinite: They are specific in calling into doubt particular points in the testimony of the witness (hence suggesting the possibility of error or falsehood on other points) but indefinite because they do not necessarily reveal the underlying cause. These include (4) showing that the witness has made a prior [CB-586] inconsistent statement (meaning one that conflicts with his current testimony), and (5) contradicting the witness-showing that he is just plain wrong on one or another point in his testimony.

Ping-Pong?

  • [CB] Repairing credibility. Usually the adversary of the attacking party has an interest in repelling the attack or otherwise repairing the credibility of the witness. Subject to the discretion of the court under FRE 611 to limit excursions into side issues, the “supporting party” may examine the witness in an effort to refute points suggested during the attack or explain away any aspersions cast upon his veracity.
  • [CB] Sometimes the supporting party mounts an offensive of his own. Under certain conditions, he may offer proof of the good character of the witness for truth and veracity or evidence of prior consistent statements by the witness (which harmonize with his direct testimony).
  • [CB] The regulating scheme. The drafters of the Federal Rules chose to regulate the subjects of impeaching and repairing witness credibility only in part. Thus the Rules make no mention of bias or mental or sensory capacity, no mention of contradiction, and only refer indirectly to the use of prior consistent statements to repair credibility.

Note the list of permissible questions in the text:

  • Q (defense to government witness): Isn’t it true, sir, that your livelihood depends entirely on government payment for your work as an informer and that you made up your testimony about my client in order to collect government bounty?
  • Q (defense to government witness): Officer, isn’t it true that you are having an affair with defendant’s wife?
  • Q (plaintiff to defendant’s expert in product liability case): Will you tell us, sir, what hourly rate you charge for testifying in cases such as this one?
  • Q (prosecutor to defense witness, an alleged co-offender): Isn’t it true that defendant has been paying your wife’s grocery and light bills since you were incarcerated?
  • Q (defense to government witness): Isn’t it true, sir, that my client rebuffed your homosexual advance?
  • Q (defendant sheriff, charged with civil rights violations, to prosecution witness): Isn’t it true that you were arrested on an earlier occasion by defendant’s deputies?
  • [CB, Constitutional Right(s)]
    • So important is the defense right to develop bias on the part of prosecution witnesses that the Supreme Court has held that denying cross-examination on such a point can violate defense confrontation rights and due process. See Olden v. Kentucky, 488 U.S. 227 (1988) (confrontation rights violated by blocking defense effort to show complainant was living with boyfriend; theory was that rape charges were concocted to explain why she was driving with him and other men in car after meeting them at bar, to protect relationship with boyfriend); ***  

Case: Abel (p. 523)

Note that the Supreme court and the Ninth Circuit take radically different positions:

The Ninth Circuit sees the specter of guilt by association, i.e., that the evidence proves defendant Abel’s membership in a criminal gang, and thus his guilt because he is a bad man, clearly improper [FRE 608(b)] At the very least, Abel is being connected to Mills, and Mills is shown to be an unsavory person merely by membership in the organization, without proof that he actually adopted the organization’s tenets.

The Supreme Court sees common membership in an “odious” group as impeaching by itself. Legitimate show of witness Robert Mills’ bias.

The Procedural discussion of the testimony prior to trial, and the judge’s ruling on the matter, are part of the context used by the Supreme Court to approve of the District Court’s actions.

  • [CB, second full paragraph, final sentence] The District Court held that the probative value of Ehle s rebuttal testimony outweighed its prejudicial effect, but that respondent might be entitled to a limiting instruction if his counsel would submit one to the court.
  • The Testimony:
    [CB] At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle told him in prison that Ehle planned to implicate respondent falsely. When the prosecutor sought to cross-examine Mills concerning membership in the prison gang, the District Court conferred again with counsel outside of the jury’s presence, and ordered the prosecutor not to use the term ”Aryan Brotherhood” because it was unduly prejudicial. Accordingly, the prosecutor asked Mills if he and respondent were members of a “secret type of prison organization” which had a creed requiring members to deny its existence and lie for each other. When Mills denied knowledge of such an organization the prosecutor recalled Ehle.
  • Malavet: HEARSAY warning
    • Remember our previous discussion: impeachment use of a witness’ prior statement is deemed to be a “non-truth” use of the statement, and thus is considered NOT hearsay for 801(c) purposes. I realize that this is difficult to accept, since it appears that the truth of the statement by Ehle (“I am going to frame Abel”) but that is the well-established view.
    • [Click here to go to prior discussion]
  • [CB] Ehle testified that respondent [Abel], Mills, and he [Ehle] were indeed members of a secret prison organization whose tenets required its members to deny its existence and “lie, cheat, steal [and] kill” to protect each other. The District Court sustained a defense objection to a question concerning the punishment for violating the organization’s rules. Ehle then further described the organization and testified that”in view of the fact of how close Abel and Mills were” it would have been “suicide” for Ehle to have told Mills what Mills attributed to him. Respondent’s counsel did not request a limiting instruction and none was given.
  • [CB] The jury convicted respondent. On his appeal a divided panel of the Court of Appeals reversed. ***
  • [The Circuit Court reversed the conviction; it wrote:]
  • [CB] It is settled law that the government may not convict an individual merely for belonging to an organization that advocates illegal activity. Scales v. United States, [505] 367 U.S. 203, 219-24; Brandenburg v. Ohio, 395 U.S. 444. Rather, the government must show that the individual knows of and personally accepts the tenets of the organization. Neither should the government be allowed to impeach on the grounds of mere membership, since membership, without more, has no probative value. It establishes nothing about the individual’s own actions, beliefs, or veracity. 707 F.2d 1013, 1016 (1983) (citations omitted). [The Supreme Court disagrees]
  • [CB] We hold that the evidence showing Mills’ and respondent’s membership in the prison gang was sufficiently probative of Mills’ possible bias towards respondent to warrant its admission into evidence. Thus it was within the District Court’s discretion to admit Ehle’s testimony, and the Court of Appeals was wrong in concluding otherwise.
  • [Do the Rules expressly allow impeachment for bias?]
  • [CB] Both parties correctly assume, as did the District Court and the Court of Appeals, that the question is governed by the Federal Rules of Evidence. But the Rules do not by their terms deal with impeachment for “bias,” although they do expressly treat impeachment by character evidence and conduct, Rule 608, by evidence of conviction of a crime, Rule 609, and by showing of religious beliefs or opinion, Rule 610. [FRE 611(b)] Neither party has suggested what significance we should attribute to this fact.
  • [Why did we do that?] Although we are nominally the promulgators of the Rules, and should in theory need only to consult our collective memories to analyze the situation properly, we are in truth merely a conduit when we deal with an undertaking as substantial as the preparation of the Federal Rules of Evidence. In the case of these Rules, too, it must be remembered that Congress extensively reviewed our submission, and considerably revised it.
  • [CB] With this state of unanimity confronting the drafters of the Fed. Rules of Evid., we think it unlikely that they intended to scuttle entirely the evidentiary availability of cross-examination for bias.
  • [CB] We think this conclusion is obviously correct. Rule 401 defines as “relevant evidence” evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402 provides that all relevant evidence is admissible except as otherwise provided by the United States Constitution, Act of Congress, or by applicable rule. A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.
  • [CB] The correctness of the conclusion that the Rules contemplate impeachment by showing of bias is confirmed by the references to bias in the Advisory Committee Notes to Rules 608 and 610, and by the provisions allowing any party to attack credibility in Rule 607, and allowing cross examination on “matters affecting the credibility of the witness” in Rule 611(b). The Courts of Appeals have upheld use of extrinsic evidence to show bias both before and after the adoption of the Federal Rules of Evidence.
  • [CB, bottom of the page] Mills’ and respondent’s membership in the Aryan Brotherhood supported the inference that Mills’ testimony was slanted or perhaps fabricated in respondent’s favor. A witness’ and a party’s common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.
  • Malavet:
    • Note how the Supreme Court, in rejecting the 403 argument for exclusion, states that common membership by both ABEL AND MILLS is what gives the evidence probative value.
    • Distinguish:
      • (1) Common membership in any organization shows possible bias;
      • (2) Common membership in lying & murderous organization, even absent proof of adoption of those tenets by the witness, shows possible dishonesty.
  • [CB] Respondent specifically contends that the District Court should not have permitted Ehle’s precise description of the gang as a lying and murderous group. Respondent suggests that the District Court should have cut off the testimony after the prosecutor had elicited that Mills knew respondent and both may have belonged to an organization together. This argument ignores the fact that the type of organization in which a witness and a party share membership may be relevant to show bias. If the organization is a loosely knit group having nothing to do with the subject matter of the litigation, the inference of bias arising from common membership may be small or nonexistent. If the prosecutor had elicited that both respondent and Mills belonged to the Book of the Month Club, the jury probably would not have inferred bias even if the District Court had admitted the testimony. The attributes of the Aryan Brotherhood-a secret prison sect sworn to perjury and self-protection-bore directly not only on the fact of bias but also on the source and strength of Mills’ bias. The tenets of this group showed that Mills had a powerful motive to slant his testimony towards respondent, or even commit perjury outright.
  • [CB] Respondent makes an additional argument based on Rule 608(b). That Rule allows a cross-examiner to impeach a witness by asking him about specific instances of past conduct, other than crimes covered by Rule 609, which are probative of his veracity or “character for truthfulness or untruthfulness.” The Rule limits the inquiry to cross-examination of the witness, however, and prohibits the cross-examiner from introducing extrinsic evidence of the witness’ past conduct.
  • Malavet: Extrinsic Evidence
    • Note that in this case Ehle’s testimony about the Aryan Brotherhood is the “extrinsic” evidence. Additionally, the court refers to this, correctly, as evidence of prior acts, not crimes, even though the clear implication is that they met as prison inmates, which implies criminal convictions.
    • The evidence shows that Mills:
      • (1) might lie for his buddy Abel and
      • (2) might be a liar generally.
  • [CB] It seems clear to us that the proffered testimony with respect to Mills’ membership in the Aryan Brotherhood sufficed to show potential bias in favor of respondent; because of the tenets of the organization described, it might also impeach his veracity directly.

Notes

  • NOTE 4: *** Given the inevitability of defense cross-examination on this subject, what should the prosecutor do on direct? See United States v. Gaev, 24 F.3d 473, 478-479 (3d Cir. 1994) (on direct, government properly asked drug conspirator about plea agreement; otherwise jury would learn he was involved and might infer that he had not been punished).
  • [THE RULES OF THE GAME:
    The authors explain in their notes to the case:]

    • When an attack for bias employs extrinsic evidence in the form of third-person testimony describing prior statements by the witness (note 6), FRE 613(b) might be read to require that he have “an opportunity to explain or deny the same” (this provision covers “[e]xtrinsic evidence of a prior inconsistent statement”). Of course the calling party must have a chance to refute the attack (see pages 670-671), and the question is whether FRE 613(b) requires the calling party to be able to refute the attack on the spot (during redirect). While FRE 613(b) expressly addresses another form of impeachment (prior inconsistent statements), Hudson applies the same principle to use of statements to prove bias.

Problem 8-A: The Hired Gun (Vending-Machine Experts) (pp. 520-21)

  • [CB] Q [plaintiff s counsel]: Professor Riley, you mentioned that you are being paid here today. $400 a day, is that right?
  • A [Riley]: That’s correct.
  • Q: All right, sir, now could you tell us please how much you expect to be paid for your work on this case in total?
  • [Defense counsel]: Your Honor, we have nothing to hide here, but plaintiff’s counsel clearly wants to browbeat this witness. The professor has said how much he gets paid, and it’s a lot of money because he’s a highly trained expert. There’s no reason to go into great detail here. It just wastes time and distracts us all from what’s really at stake here.
  • [Plaintiffs counsel]: Your Honor, the jury should know how much this man expects to get paid. I want them to know some other things too, including
    • (1) how much he made testifying for GM last year,
    • (2) whether he expects to testify for GM again,
    • (3) how much he made, all told, in court appearances last year testifying for automakers, and
    • (4) approximately what proportion of his total income comes from such appearances.

Authors’ Notes on the Problem:

  • On these facts, we would say plaintiff should be able at least to ask whether Riley has a larger economic interest in testifying well for GM, and whether he has regular clients whose positions he tends to support. Plaintiff wants to “steal back a little thunder” by being first to raise at least something bearing on credibility. GM played Caesar’s wife by disclosing the impeaching fact on direct, and plaintiff fears this tactic drained the fact of its deserved effect. To restore the force of the fact in the drama of trial, plaintiff needs to score a rhetorical point.
  • The Graham study suggests that courts allow questions about (a) continuing employment by the calling party and (b) prior testimony for the same party or attorney, but not those about (c) previous compensation from the same party or attorney on other cases, (d) the proportion of the expert’s total income which comes from testifying for a party or type of party, or (e) the degree to which the expert limits his testimony to certain causes or certain sides of issues. See generally Graham, Impeaching the Professional Expert Witness by a Showing of Financial Interest, 53 Ind. L.J. 35, 50 (1977-1978) (arguing that all these avenues of attack should be permitted).
  • Malavet:
    • Be sure to look at the examples in the notes following the problems.

Malavet on the Graham Study

  • To supplement note 1, which discusses the Graham article, I showed the following:
  • Permissible Questions for Experts (Provided by the authors)
  • The Graham study suggests that courts
    allow questions about 

    • (a) continuing employment by the calling party and 
    • (b) prior testimony for the same party or attorney,
  • but not those about
    • (c) previous compensation from the same party or attorney on other cases,
    • (d) the proportion of the expert’s total income which comes from testifying for a party or type of party, or 
    • (e) the degree to which the expert limits his testimony to certain causes or certain sides of issues.
  • See generally Graham, Impeaching the Professional Expert Witness by a Showing of Financial Interest, 53 Ind. L.J. 35, 50 (1977-1978) (arguing that all these avenues of attack should be permitted).
  • This requires some research, which shows the following Bottom Line:
  • A review of the caselaw indicates that courts today are much more likely to allow questions in categories (c)-(e) (even Florida). The federal courts tend to be more liberal than state courts, and the state courts are more or less divided.
  • To the extent that courts are in fact more liberal now and tend to allow questions in categories (c)-(e), this has resulted in increased litigation regarding discovery requests [FRCP 26(a)(2)(B)] intended to generate such bias/interest evidence. See generally, Michelle Morgan Ketchum, Experts: Witnesses for the Persecution? Establishing an Expert Witness’s Bias Through the Discovery and Admission of Financial Records, 63 UMKC L. REV. 133, 157-59 (1994).
  • The courts are generally sympathetic to the need to conduct bias/interest impeachment against experts based on their financial interest and professional allegiance with particular types of parties, but they are more careful about allowing discovery of tax information.
  • The newly amended FRCP 26(a)(2)(B) reads, in pertinent part, that the compulsory disclosures regarding expert witnesses must include “the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” This establishes a pretty strong preference in the federal system for extensive bias/interest impeachment of experts.
  • My experience has been that the federal courts tend to follow the liberal approach in allowing bias cross-examination that was urged by Graham, but the state courts display a more divided and nuanced approach.

Malavet: Here is a review of the cases that I Prepared:

  • Collins v. Wayne Corp. 621 F.2d 777 (5th Cir. 1980) (liberal approach, cited in note 1 in the casebook). Rules that “cross-examination of an expert about fees earned in prior cases is not improper.” The court added that “A pecuniary interest in the outcome of a case may, of course, bias a witness. A showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be hired to testify in future cases. The trial court did not err in allowing Wayne to cross-examine Severy about compensation he had received for Volkswagen.”
  • As to the third circuit case mentioned at page 597, do not over read it. Here, the expert worked for the government in condemnation proceedings for hundreds of properties. The court of appeals found that the bias/interest impeachment was properly limited by the trial court at its discretion. “The district court judge also exercised sound discretion in refusing to permit into evidence Orbaker’s contract with the Government as an appraiser for the entire Beltzville project. In addition he properly refused appellants’ request to cross-examine Orbaker as to the amount received for the appraisal work. He investigated 300 properties and appraised 187 properties. Appellants argue that they had a right to examine Orbaker as to his compensation for the entire project to show interest or bias. Assuming that the evidence was admissible for the purpose of showing interest or bias of the witness, a trial judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice, will confuse the issues, or mislead the jury. United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 203 (3rd Cir. 1970), cert. denied 401 U.S. 948, 91 S. Ct. 929, 28 L. Ed. 2d 231 (1971).”
  • Trower v. Jones, 121 Ill. 2d. 211 (Ill. Sup. Ct. 1988). Contrary to what the offering party argued, opposing counsel could legitimately inquire into “evidence of an expert’s financial interest in a case [including] the remuneration received for testifying (1) in a particular case, (2) for a particular party, or (3) for a particular party’s attorney.” Counsel could also inquire into “how much [the expert] was earning from services relating to rendering expert testimony [over the last two years].”
  • Wrobleski v. De Lara, 353 Md. 509, 727 A.2d. 930 (Ct. App. Md. 1999). Includes an extensive review of caselaw and concludes that Trower represents a slight majority of cases on point that favor a liberal approach that allows bias cross-examination of expert witnesses to include questions regarding testimony in other cases and patterns of payments received from particular parties, as Graham urges. This Wrobleski court concludes: “For the reasons noted above, summarized and applied by the Illinois court in Trower, we believe that it is generally appropriate for a party to inquire whether a witness offered as an expert in a particular field earns a significant portion or amount of income from applying that expertise in a forensic setting and is thus in the nature of a “professional witness.” If there is a reasonable basis for a conclusion that the witness may be a “professional witness,” the party may inquire both into the amount of income earned in the recent past from services as an expert witness and into the approximate portion of the witness’s total income derived from such services. The trier of fact may find either or both to be significant in determining the witness’s credibility. n5 We hasten to add, however, two important caveats. First, we do not intend by our decision today to authorize the harassment of expert witnesses through a wholesale rummaging of their personal and financial records under the guise of seeking impeachment evidence. The allowance of the permitted inquiry, both at the discovery and trial stages, should be tightly controlled by the trial court and limited to its purpose, and not permitted to expand into an unnecessary exposure of matters and data that are personal to the witness and have no real relevance to the credibility of his or her testimony. Second, the fact that an expert witness devotes a significant amount of time to forensic activities or earns a significant portion of income from those activities does not mean that the testimony given by the witness is not honest, accurate, and credible. It is simply a factor that is proper for the trier of fact to know about and consider.”
  • Florida: Syken v. Elkins, 644 So.2d 539 (Fla. Dist. Ct. App. 1994) affd. 672 So. 2d. 576 (1996). Florida allows exploration of the expert’s status as a “professional expert,” but limits some specific questions regarding income. See Expert “may be asked to give an approximation of the portion of their professional time devoted to service as an expert.” Limit: “need not answer how much money he or she earns as an expert or how much the expert’s total annual income is.” The Florida Court produced these guidelines (which were approved by the Fla. Supreme Court):
    • “Guidelines 
    • “For the foregoing reasons, discovery of an opposing medical expert for impeachment is limited by the following criteria:
    • “1. The medical expert may be deposed either orally or by written deposition. 
    • “2. The expert may be asked as to the pending case, what he or she has been hired to do and what the compensation is to be. 
    • “3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants, or some percentage of each?
    • “4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service as an expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended, or percentage of income earned from that source, or the approximate number of IME’s that he or she performs in one year. The expert need not answer how much money he or she earns as an expert or how much the expert’s total annual income is. 
    • “5. The expert may be required to identify specifically each case in which he or she has actually testified, whether by deposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time may be inquired into under some circumstances. 
    • “6. The production of the expert’s business records, files, and 1099’s may be ordered produced only upon the most unusual or compelling circumstance. 
    • “7. The patient’s privacy must be observed.
    • “8. An expert may not be compelled to compile or produce non-existent documents.”
  • Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. Sup. Ct. 1999). Discovery directed at a party regarding its relationship with the expert witness was permissible because it goes to that witness’ possible bias or interest. There is more leeway to ask questions of a party than of the witness himself.
  • Smith v. Transducer Tech., Inc., CIVIL NO. 1995/28, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX, 2000 U.S. Dist. LEXIS 17217 (2000). Discovery of payments to expert by counsel that hired during the previous two years went to possible financial interest bias, and was permissible.
  • Behler v. Hanlon, Case No.: JFM-99-3877, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, 199 F.R.D. 553; 2001 U.S. Dist. LEXIS 5879. “As will be discussed in more detail below, the fact that an expert witness may have a 20 year history of earning significant income testifying primarily as a witness for defendants , and an ongoing economic relationship with certain insurance companies, certainly fits within recognized examples of bias/prejudice impeachment, making such facts relevant both to the subject matter of the litigation, and the claims and defenses raised, and placing it squarely within the scope of discovery authorized by Rule 26(b)(1), in either its present, or immediately preceding version.”
  • BUT THE COURT ADDED LIMITATIONS:
    “However, legitimate issues are raised regarding the extent of the bias discovery sought, the methods of discovery employed, and possible abuses that could occur if the discovery is permitted without a protective order. For example, plaintiff seeks discovery of the total income earned by Dr. Keehn for the last five years, the amount thereof earned providing defense Rule 35 examinations, records relating to the hours spent by Dr. Keehn in this capacity, copies of his tax returns, and a listing of all insurance companies with whom he is affiliated, as well as a listing of all cases in which he has provided expert services. This is overkill.”
  • Ex Parte Morris, 530 So.2d 785 (Ala. Sup. Ct. 1988) (experts not required to produce income tax records during discovery).

8.2 Impeachment: Sensory Capacity and Prior Bad Acts, 521-38

2. Sensory and Mental Capacity

  • [CB] The attacking party may seek to show that a witness had only a brief chance to see or hear what she has described in her testimony, or that she labors under defects in sensory capacity that may affect her observation, or that human perceptive processes work in ways suggesting that her testimony is not so persuasive as it seems. Sometimes the attack proceeds by cross-examination, but such points may also be proved by extrinsic evidence when the attacking party presents his case.
  • [Given the examples in this section, you know that this area can get very touchy.]
  • [CB] One’s psychiatric history is an area of great personal privacy which can only be invaded in cross-examination when required in the interests of justice.
  • ***
  • Whether the cross-examination is to be permitted under the above principles is an issue committed to the discretion of the trial court, which, in its determination, is “entitled to weigh the potential unfairness of a free wheeling inquiry intended to stigmatize the witness against whatever materiality the evidence might have.”
  • United States v. Lopez, 61 1 F.2d 44, 45-46 (4th Cir. 1979) (court relies on FRE 403).
  • [Note the sexual assault situation discussed at the end of note 3 at page 513.]
  • [CB] 4. Should experts testify on the reliability of eyewitness identification? [CB] Courts sometimes exhibit some sympathy toward such proof, United States v. Downing, 753 F.2d 1224 (3d Cir. 1985) (error to apply per se rule of exclusion; court should assess scientific basis and utility), and sometimes even reverse judgments or criticize rulings excluding it, see People v. Innis, 564 N.E. 2d 1155 (Ill. 1990); People v. McDonald, 690 P.2d 709 (Cal. 1984). [Note the recent caselaw discussed at page 414, indicating that if the trial is convinced, to admit or to exclude, her/his decision is likely to be upheld.]

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