Impeachment

MBEMax wiki article — paired with the Evidence question set on mbemax.com.

One-line summary

Impeachment attacks a witness's credibility — through prior inconsistent statements, bias, sensory defects, bad reputation for truthfulness, prior convictions, or specific acts probative of untruthfulness.

Mnemonic

BIG-CC-PC — Bias, Inconsistent statements, Grounded senses (defects), Contradiction, Character for untruthfulness, Prior convictions.

Think of BIG-CC-PC as a six-stall wash-and-dry: you can run any witness through any stall.

The six impeachment methods

1. Prior inconsistent statements (FRE 613). Extrinsic evidence admissible only if witness given an opportunity to explain or deny (or the interests of justice otherwise require). Collateral facts can be attacked only through the witness's own mouth.
2. Bias / motive / interest. Always relevant; no collateral-fact bar. Extrinsic evidence allowed. Examples: payment by a party, family relation, pending plea deal, animus.
3. Sensory or mental defects. Capacity to observe, recall, communicate. Intoxication at the time of the event or testimony is fair game.
4. Contradiction. Showing the witness is wrong on a material fact. Extrinsic evidence generally bars collateral-fact contradiction.
5. Character for untruthfulness (FRE 608). Reputation or opinion testimony from another witness; specific instances only on cross (no extrinsic evidence) and only if probative of truthfulness.
6. Prior convictions (FRE 609). See grid below.

FRE 609 conviction grid

• Crime of dishonesty or false statement — automatically admissible against any witness. No balancing. Perjury, fraud, embezzlement, false pretenses.
• Felony not involving dishonesty — witness is a criminal defendant — admissible only if probative value outweighs prejudicial effect (reverse 403).
• Felony not involving dishonesty — other witnesses — admissible subject to standard Rule 403.
• More than 10 years old — inadmissible unless probative value substantially outweighs prejudice AND reasonable notice.
• Juvenile adjudications — not admissible against criminal defendant; limited admissibility against other witnesses.
• Pardon, annulment, rehabilitation — generally excludes if based on innocence or rehabilitation plus no subsequent felony.

NCBE loves to test

• Collateral vs. non-collateral. Non-collateral facts (bias, key substantive issues) support extrinsic evidence. Collateral facts (peripheral matters) are stuck with the witness's own words.
• Specific instances under 608(b). Only on cross-examination. No extrinsic proof. Court has discretion. Cannot be used unless probative of truthfulness (e.g., lying on a job application) — not just bad character in general.
• Rehabilitation only after attack. Prior consistent statements, good character for truthfulness, evidence rebutting charge of recent fabrication — all require prior attack on credibility. Bolstering before attack is improper.
• Hearsay overlap. Prior inconsistent statement offered for impeachment only = not hearsay (not offered for truth). Under oath in prior proceeding + declarant testifies = not hearsay at all (FRE 801(d)(1)(A)) and substantive.
• Constitutional limits. Confrontation Clause requires meaningful cross on bias (Davis v. Alaska). Limits on prior-conviction impeachment may violate the confrontation right.
• Limiting instruction. When prior conviction is admitted, court should, on request, give limiting instruction that it goes to credibility only (if the offer is under 609 rather than a substantive hearsay purpose).

Fast hypos

Hypo 1. Witness at trial says "I saw the red light." Prior deposition says "light was green." Counsel offers deposition transcript for truth and impeachment. For impeachment — FRE 613 OK if witness gets chance to explain. For truth — FRE 801(d)(1)(A) OK because deposition is under oath and witness is subject to cross.

Hypo 2. D is on trial for bank robbery. Prosecution wants to admit D's prior felony conviction for assault, 4 years old, for impeachment after D testifies. FRE 609(a)(1)(B) — reverse 403 balancing; admit only if probative value outweighs prejudicial effect.

Hypo 3. W testifies for defense. On cross, prosecution asks "Isn't it true you lied on a credit application six months ago?" Defense objects. 608(b) cross-examination allowed if probative of truthfulness; no extrinsic evidence allowed; stuck with W's answer.

Hypo 4. Witness says "D was driving the blue car." On cross, counsel asks "Your wife is the plaintiff in the civil case against D, isn't she?" Bias — always relevant, extrinsic evidence allowed, no collateral-fact bar.

Case anchors

• Davis v. Alaska, 415 U.S. 308 (1974) — Confrontation Clause requires cross on bias despite juvenile-record privacy statute.
• Ohler v. United States, 529 U.S. 753 (2000) — defendant who pre-emptively introduces own prior conviction forfeits appellate review of 609 ruling.
• Olden v. Kentucky, 488 U.S. 227 (1988) — limits on cross-examining about bias violate Confrontation Clause.
• United States v. Abel, 469 U.S. 45 (1984) — bias evidence admissible under FRE 402 and 607 even without specific rule.

See also

• Hearsay
• Character
• Privileges
• Relevance — FRE 403

Sources

Fed. R. Evid. 404, 405, 607, 608, 609, 613, 801(d)(1); Davis v. Alaska, 415 U.S. 308 (1974); Ohler v. United States, 529 U.S. 753 (2000); Olden v. Kentucky, 488 U.S. 227 (1988); United States v. Abel, 469 U.S. 45 (1984).