BOLSTERING NOT PERMITTED: cannot support on direct before attack on cross.
REHABILITATION PROVISION: HRE 613(c) - no comparable FRE.
General 613 Foundation: person, place, time and substance.
FRE 613(b) Foundation: "opportunity to explain or deny" (at any time)
HRE 613(b) Foundation: confront witness with the circumstances.
Bias: the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor or against a party. May come from like, dislike, fear, or self-interest. Bias is lways relevant.
Collateral test: "whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as part of his case." (from Simmons v. Pinkerton's case)
Case Notes on impeachment from Goode & Wellborn’s Courtroom Evidence Handbook
R609 - Conviction offered for other purpose. Like Rule 608, Rule 609 applies only when the conviction is being offered to demonstrate the witness's untruthful character. Rule 609 does not apply when the conviction is offered for some other purpose, such as:
- To prove a material issue in the case. (previous conviction admissible under Rule 404(b) to prove intent).
- To rebut factual assertions made by the witness. (permitting defendant to be impeached with two prior drug distribution convictions after he testified, on direct examination, that he never dealt drugs).
Kinds of statements. A witness may be impeached with any kind of prior statement—oral or written, sworn or unsworn. A witness may also sometimes be impeached with her prior silence. Statements by an accused that were taken in violation of Miranda, and thus rendered inadmissible as substantive evidence, may nevertheless be used to impeach the accused's testimony at trial. Harris v. New York, 401 U.S. 222 (1971). Similarly, an accused's statements to an informer that were taken in violation of the accused's Sixth Amendment right to counsel may be used to impeach contradictory testimony given by the accused at trial. Evidence that an accused gave and then withdrew a notice of intent either to offer an alibi defense, to rely on an insanity defense or introduce expert testimony concerning her mental condition, or to claim a defense of public authority may not be used against the accused.
Prior statement must be inconsistent with testimony.Although the witness's prior statement must be inconsistent with her trial testimony, direct contradiction is not required. One frequently-invoked test is "could the jury reasonably find that a witness who believed the truth of the facts testified to would have been unlikely to make a prior statement of this tenor?" ("A prior statement is inconsistent if it, 'taken as a whole, either by what it says or by what it omits to say affords some indication that the fact was different from the testimony of the witness whom it sought to contradict.' ").
Direct inconsistency. Testimony that varies from a witness's previous statement regarding a material fact certainly meets any standard of inconsistency.
(b) Prior silence or less detailed prior statement. A witness may sometimes be impeached by her prior silence or with prior statements that she made that were less detailed than her testimony. The circumstances surrounding the prior silence or statements must have been such that the witness would have been expected to speak out or to provide greater detail.
(c) Prior claim of lack of memory.
(d) Current claim of lack of memory.
(e) Omission of details previously related.
(f) Witness has not yet testified.
PRIOR BAD ACTS
& BIAS IMPEACHMENT PROBLEMS
1B At Albert's trial for possession and sale of cocaine, Albert takes the witness stand. Should the prosecution be permitted to ask the following questions?
(a) “Albert, isn't it a fact that you robbed a Long's store last year?”
(b) “Thirteen years ago Albert, you were arrested for turning back odometers, weren't you?”
(c) “Last week, you smoked a marijuana joint at an outdoor concert, didn't you?”
2B At Albert's trial on the charge of illegal possession and sale of cocaine, Albert testifies and is impeached by a prior conviction. Albert next calls his sister, Judy, to the witness stand. Discuss the admissibility of the following testimony. Judy testifies on direct examination as follows:
(a) I am familiar with Albert's reputation in the community for truthfulness. Albert's reputation in the community for truthfulness is good.
(b) I would believe Albert under oath.
(c) Just last week I heard Albert scold our little brother for lying to one of his friends.
3B Discuss the admissibility of the following testimony. On cross-examination, Judy is asked the following questions by the prosecutor:
(a) You know don't you that Albert was convicted eleven years ago for robbery of a liquor store?
(b) Are you aware that thirteen years ago Albert was arrested for turning back odometers?
(c) Have you heard that Albert was fired last week from his job at Sears for shoplifting?
(e) Judy, you are the defendant's sister, aren't you?
(f) Judy, Albert has promised you a job if he is found innocent, didn't he?
4. The defendant, Alexander, is charged with the unlawful possession of a firearm by a felon. At trial, the defendant's friend, Preston, testifies for the defense. Preston states that the gun in question, found on the ground near Alexander, was really his (Preston's). Is the following cross-examination by the prosecutor permissible?
Q: “Preston, isn't it true that you and Alexander are a both members of the gang called “Anything for your Buddy”?
U. S. v. Abel, 469 U.S. 45 (1984) has the answer to the above problem.
CONTRADICTION & PRIOR STATEMENTS PROBLEMS
(INCONSISTENT & CONSISTENT) 1. Negligence action following a two car collision. Plaintiff calls Witness 1, who testifies that she was a passenger in Plaintiff’s car, that she looked down for a moment to change the radio from a rock station to a country music station, and that when she looked up, she saw Defendant cross the center line, veer into Plaintiff’s path, and strike Plaintiff’s car head-on. On cross-examination, Defendant asks Witness 1, “Isn’t it true that Plaintiff is the one who crossed the center line?” Plaintiff objects that this is improper impeachment. How should the court rule? (L\G 464)
2. Same case. Assume Witness 1 refuses to acknowledge that it was Plaintiff who crossed the center line. May Defendant now call Witness 2 to testify to that effect?
8. In the Hawaii Liquor Commission v. Jones case, on cross-exam of Bier by the attorney for Cute-Rate:
Circuit Court (777 Punchbowl Street) 3rd and 4th floors
District Court (1111 Alakea Street) 4th, 7th, 10th floors
Federal Court (300 Ala Moana Boulevard)
Digital Court (real court, not Judge Judy); Court TV/ library / other video access
Judge: Time observed:__________
(45 minutes required) 1. Briefly describe the type of case(s) you observed and which part of the proceedings you saw.
2. Identify some of the evidentiary issues you observed and explain them. For example: objections made (or that could have been made), types of evidence introduced (documents, photos, diagrams, police reports, depositions, etc.), foundations presented, hearings outside the presence of the jury, relevance issues, impeachment, expert testimony, character evidence, hearsay, privileges, trial skills, questions you have about the process, etc. What did you learn about evidence from this observation?
19 Although this framework has been utilized in cases in which the court was advised of alleged juror misconduct after the jury had returned its verdict, see, e.g., Furutani, 76 Hawai`i at 177, 873 P.2d at 56, it is equally applicable in the circumstances of the instant case, where the issue of juror misconduct was raised during jury deliberations.
1 . It is undisputed that the shirt was available to be produced and that there was no reason for failure to produce the shirt.