Header graphic for print
White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Doctrine of “impeachment by contradiction” allows defense to use evidence not otherwise admissible in order to impugn cooperator

Posted in Evidence

The concept of "impeachment by contradiction" does not appear in the Federal Rules of Evidence. A vestige of the common law of evidence, the doctrine, however, survived the codification of the FRE and constitutes a valuable overlay and weapon for cross-examiners. Although FRE 609 may not permit convictions to be used which do not meet the requirements of the Rule and FRE 608 may not allow the prior bad acts or convictions to be used because they do not relate to untruthfulness, the principle of "impeachment by contradiction" may throw wide open the door to the use of otherwise disqualified materials. The Ninth Circuit Court of Appeals recently examined the applicability of the doctrine in the context of a political corruption prosecution. United States v. Kincaid-Chauncey, 556 F.3d 923 (9th Cir. 2009).

Defendant Kincaid-Chauncey was a Nevada county commissioner charged with receiving bribes from a strip-club owner in exchange for favorable votes on land use matters. The alleged bribe-payor, Galardi, testified on direct examination to making payments to the commissioner, but on cross-examination was asked about payments to nine other public officials. Since Galardi claimed to have made payments to the nine, Kincaid-Chauncey’s attorney sought to call each of the nine as defense witnesses to presumably contradict Galardi, showing him to be a liar for all purposes including his inculpation of Kincaid-Chauncey. But the district court allowed the defense to call only two of the witnesses implicated in the cross-examination testimony of Galardi, and Kincaid-Chauncey argued on appeal that this limitation was error.

The Ninth Circuit noted the continuing vitality of the doctrine of "impeachment by contradiction," characterizing it as "part of the general body of evidentiary law." Id. at 932 n.8. The rationale for the doctrine is to prevent witnesses from engaging in perjury, then using the prohibitions of FRE 608 to preclude impeachment with collateral facts and thereby concealing the perjury. Id. at 932. The only limitation on the scope of impeachment materials is imposed by FRE 403. See United States v. Gilmore, 553 F.3d 266, 271 (3rd Cir. 2009).

However, a witness may generally be impeached by contradiction only when the perjurious statement in question has been offered on direct examination; otherwise, a wily cross-examiner could open up broad areas for impeachment simply by posing clever questions on cross. Id. at 932-33. (The Third Circuit has similarly limited the doctrine to impeachment of statements volunteered by the witness on direct examination. United States v. Pantone,, 609 F.2d 675, 683-84 (3rd Cir. 1979)). Thus, the district court was well within its discretion — and arguably went beyond the bounds of the doctrine — by permitting the defense to call only two of nine witnesses to respond to the cross-examination statements of Galardi.