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An Introduction to Impeachment Evidence

July 11, 2011

Impeachment means “[t]o call in question the veracity of a witness, by means of evidence adduced for such purpose, or the adducing of proof that a witness is unworthy of belief.”  Black’s Law Dictionary (5th ed. 1979).  Here’s another definition, with a little more explanation:

Impeachment is an attack upon the credibility of a witness.  The purpose of impeachment is to destroy credibility, not to prove the facts stated in the impeaching statement.  As with all relevant evidence, the trial court retains discretion to admit or exclude evidence offered for impeachment.

81 Am. Jur. 2d Witnesses § 828.

Aha … “Purpose!”  Remember what this passage says the purpose is, and what it is not; it matters!

Let’s look at impeachment in the structure of evidence:

Is it relevant?

Assuming the witness on the stand has testified to relevant evidence, the credibility of the witness is important.  Therefore, evidence bearing on the witness’s credibility is almost always going to be relevant.  For most impeachment evidence, that’s all you need to know.  The evidence is relevant, and no rule of evidence excludes it, so it’s admissible.  However, some forms of relevant impeachment evidence are addressed by the rules, and by some of the concepts of evidence, each of which might affect the admissibility of the evidence.

What is it?

Depending on the answer to this question, one or more of the following rules may affect the admissibility of the evidence.  I’m not going to quote the rules here, but take a few minutes to read them very carefully.  The primary rules related to impeachment are:

  • Rule 608(a)—Opinion or Reputation Evidence of “Character for Truthfulness”
  • Rule 608(b)—Specific Instances of Conduct to prove “Character for Truthfulness”
  • Rule 609—Impeachment by Evidence of Conviction of Crime
  • Rule 613(b)—Extrinsic Evidence of Prior Inconsistent Statement
  • Rule 403—Balancing Probative Value against Unfair Prejudice

There are some other rules that relate to impeachment but are less prominent, including:

  • Rule 602—Perception, Memory, Communication (Personal Knowledge)
  • Rule 607—Who May Impeach
  • Rule 610—Religious Beliefs or Opinions

As an exercise to get us ready for the discussion tomorrow, take the “ten modes for impeaching the witness” listed in Our Book, and connect each one to a rule of evidence.  Remember that some may be connected only to Rule 402.

Foundation—How Can You Get it in Anyway?

When you have connected one of the “modes for impeachment” to a rule of evidence which might exclude the evidence even though it’s relevant, consider what the foundation for the admissibility of the evidence is.  “Foundation” will be the focus of our study of Impeachment!

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