A recent Second Circuit decision allows the jury to be made aware of government charging decisions which are inconsistent with its witnesses’ trial testimony, as when the trial defendant is claimed by the prosecution to be the exclusive possessor of a firearm although several other persons were earlier charged with the same possession.
Sitting outside, but in parallel with, the Federal Rules of Evidence, the doctrine of “impeachment by contradiction” creates an exception to FRE 608(b), allowing the cross-examiner to go beyond matters relating to the truthfulness of a witness into a stream of otherwise extraneous events and thereby demolish that witness.
The rules of evidence to which most frequent resort is made in impeaching witnesses with evidence of misconduct are FRE 608(b) and FRE 609. Rule 608(b) provides that specific instances of the witness’s conduct to show untruthfulness, other than conviction of a crime under 609, may not be proved extrinsically; that is, the questioner must generally… Continue Reading
In a decision issued on April 29th, the Supreme Court — in a decision which thematically follows from the previous post regarding the breadth of the "impeachment by contradiction" doctrine — has reaffirmed the principle that a defendant may be impeached with a statement obtained from him in violation of the Sixth Amendment. Kansas v.… Continue Reading
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… Continue Reading
Trial attorneys understand that generally a witness can be impeached with evidence of his or her prior acts going to truthfulness, but only by cross-examining the witness on the point. FRE 608(b) requires the examiner to accept the witness’s answer, and prohibits accomplishing the impeachment extrinsically, through the testimony of a follow-on witness or the… Continue Reading