Impeachment Methods on the UBE - How to Impeach, Exceptions, and Procedure for the MBE and MEE

    Within the subject of evidence, the three main topics standout as being crucially important for this subject, and rightfully so.  They are relevance, witnesses, and hearsay.  Within each of these three main topics, one subtopic reigns supreme.  Within relevance, that subtopic is character evidence.  Within hearsay, that subtopic is of course the hearsay exceptions.  Within the subject of witnesses, the crucial subtopic is of course the methods of impeachment methods.

    This blog post aims to tackle the seven methods of impeachment, dissecting each one by providing the definition, exceptions, procedural rules, and examples where applicable. 

BAR EXAM NOTE – When confronted with an impeachment MBE question or MEE issue, ask yourself two threshold questions before delving into the fact pattern.  Keep in mind the following:

1 – Does the witness have to be on the stand in order to use this impeachment method?

2 – Can I use extrinsic evidence to help make my point?

    Keep these two questions in mind as you work your way through the fact pattern.  Quite often the examiners are attempting to trick us by having us use extrinsic evidence when we are unable to do and/or using an impeachment method that requires a witness to be on the stand when they are not.

Moving on, how can we remember all seven methods of impeachment?

BAR EXAM NOTE – A nice pneumonic for the seven impeachment methods is PBSBCBC.  You can find the corresponding impeachment method below.  PBSBCBC.  How to remember this pneumonic?  What network did you watch Sesame Street on as a child?  That would be PBS.  As for BCBC?  If you went to Boston College?  It is you alma mater.  If you have a friend named Brittney Chastain?  Those are her initials.  If you can remember PBSBCBC you will remember the seven methods of impeachment and they are:

Impeachment Methods –

(1) Prior inconsistent statement;       

(2) Bias, interest, or a motive to misrepresent;

(3) Sensory deficiencies;       

(4) Bad reputation or opinion about a witness character for truthfulness;

(5) Criminal convictions;

(6) Bad acts (without conviction) that reflect adversely on witness’s character for truthfulness and;

(7) Contradiction / contradictory statement.

 

Procedural Overview for the Impeachment Methods -

There are TWO possible ways to impeach a witness:

1 – Ask the witness about the impeaching fact with the aim of having the witness admit it (known as “confronting” the witness) OR

2 – Prove the impeaching fact with “extrinsic evidence” (usually in the form of documentary evidence or testimony from other witnesses).

 

BAR EXAM NOTE - The impeaching fact may be proven with extrinsic evidence for all methods of impeachment except with method #6 (bad acts) and part of method #7, contradiction.  More on this later.   In addition, for the impeachment methods that DO allow extrinsic evidence it is NOT necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced.  The one exception to this is with impeachment method #2 bias as you MUST confront witness before introducing extrinsic evidence.

So now, with that groundwork being laid, let us move into the individual methods of impeachment.

 

1 – Prior Inconsistent Statements –

Definition: A witness may be impeached by showing that on some prior occasion, that witness asserted a material statement (orally or in writing) that is inconsistent with their trial testimony.

NOTE - The prior inconsistent statement is admissible ONLY for the purpose of IMPEACHMENT, however:

Exception: A prior inconsistent statement may be admitted BOTH to impeach AND to be sued as substantive evidence (to prove truth of matter asserted in prior stmnt) IF the statement was made:

(a) orally under oath AND

(b) in a live testimonial context (like at a hearing, deposition, trial, status conference, etc.)

Example: A defendant is sued for negligence in a multi vehicle accident in which he was driving a Chevrolet Suburban.  A witness says that she saw the Suburban run a light.  Can defense counsel seek to establish that a few days after accident, this witness told the police that it was in fact the Jeep that ran the red light and not the Suburban? YES, and this is a classic example of a prior inconsistent statement.

 

Procedural Issue: Must the witness be confronted with her prior statement WHILE STILL ON STAND or may it be proven later by extrinsic evidence through confrontation? You are not required to immediately confront witness however after usage of extrinsic evidence the witness must be given an opportunity at some point to return and explain or deny the statement that was made.

 

2 – Bias, Interest, or a Motive to Misrepresent –

Definition: May impeach a witness by asserting any fact that would give the witness a reason to testify favorably or negatively about a party’s case.

Purpose: To suggest testimony is false, slanted, or mistaken in favor of one party.

Examples: The witness is the party herself or a friend, relative, or employee of the party, or an expert being paid, or a person with a  grudge against party or a witness for the prosecution who is an accomplice of the defendant and has been given a plea deal by the prosecution.  Can I demonstrate that a particular expert witness has been paid $40,000 by the defense for their work in this matter?  Yes, and that can demonstrate that this witness is biased.  Can I demonstrate that this witness has been given a plea deal in exchange for his testimony against my client and is therefore motivated to testify?  Absolutely.

Procedural Issue: Bias may be proven by extrinsic evidence, such as the use of invoices.

 

3 – Sensory Deficiencies –

Definition: Anything that could affect the witness’s perception or memory.

Examples: Bad eyesight, hearing, mental infirmity, consumption of alcohol or drugs at the time of incident.  The classic example is from the movie My Cousin Vinny.  On the stand, the older woman with thick glasses is asked if she can see how many fingers are being held up by Joe Pesci from across the courtroom.  She is unable to see exactly how many fingers are being held up.  “So you mean to tell me that you can’t see how many fingers I am holding up from 50 feet away, yet we are supposed to believe that you saw the faces of the two youths (pronounced ‘yoots’) from 500 feet away?!”  Sensory deficiency.  She has been impeaches using her poor eyesight.

Procedural Issue: Must we confront the witness while on the stand? No, but that is generally when sensory deficiency impeachment occurs.  Are we allowed to use extrinsic evidence with this impeachment method? YES.

NOTE – Impeachment methods 4, 5 and 6 concern a general attack on the witness’s bad character regarding their truthfulness or lack thereof.  

 

4 – Bad Reputation or Opinion about Witness's

 Character for Truthfulness –

Definition: ANY witness is subject to impeachment by this method.

Purpose: To suggest that a witness is NOT telling truth on the stand.

Examples: Call a character witness to testify that the target witness has a bad reputation for truthfulness or that the character witness has a low opinion of the target witness’s character for truthfulness. For example, we would call a reverend to testify that the witness has a lousy rep for truth among the members of the congregation.

Procedural Issue: Must we confront the witness while on the stand? No, but that is generally when sensory deficiency impeachment occurs.  Are we allowed to use extrinsic evidence with this impeachment method? YES.

 

5 – Criminal Convictions –

Purpose:  To suggest that their testimony is false.

Relevance: Only the person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Permissible Types of Convictions:

1 – Conviction of ANY crime (felony or misdemeanor) as to which the prosecution was required to prove that a false statement was an element of the crime.  Think about white collar crimes, such as fraud, embezzlement, forgery, etc.

2 – If the conviction did NOT require proof of a false stmnt, the crime must be a FELONY and the court may exclude in its discretion if the probative value on the issue of the witness’s credibility is outweighed by a danger of unfair prejudice to a particular party.  There is ALWAYS a balancing analysis if we are in this category of felony crimes.

Time Limit: As to BOTH categories, the conviction or release from prison, whichever is greater, generally must be within 10 years of the trial.

BAR EXAM NOTE – The examiners love the “within or outside the 10 years released from prison” aspect of the time limit.  We are typically so transfixed on the date of the actual crime, that many examinees do not pay attention to the ‘released from prison’ date.

Procedural Issue: You can ask the witness to admit the conviction OR you can introduce the record of the conviction (aka use extrinsic evidence).

 

6 – Inquiry About Bad Acts (Without Conviction) if

 They Reflect Adversely on Witness Character for

 Truthfulness -

Purpose: A witness may be asked about a prior bad act if it relates to some sort of lying

Procedural Issue: The only permissible procedure: Confrontation via cross examination, in other words, you can ask and hope they admit it! NO use of extrinsic evidence concerning these bad acts is permitted for the purpose of showing a bad character for purposes of truthfulness.  In addition, the cross examiner must have a good faith basis for the inquiry, as ‘shots in the dark’ are typically not permitted.

BAR EXAM NOTE – Proof of a prior bad act with the use of extrinsic evidence may be allowed if the bad act is relevant for some purpose OTHER than for a bad char for truthfulness, such as to show BIAS.  Example: A witness gives favorable testimony on behalf of the defendant. On cross examination counsel for the plaintiff asks the witness whether she assaulted a mail carrier two years ago with the defendant.  This demonstrates that the two know each other, and perhaps this witness is biased in favor of the defendant.

 

7 – Contradiction –

Purpose: Cross examiner may (through confrontation) try and obtain admission that witness lied or made mistake about any fact she testified to during direct examination. If the witness admits to doing so? She has been impeached.  If she does not admit to it? Can extrinsic evidence be used? NO, for the purpose of contradiction if the fact in issue is irrelevant to the case or to the witness’s credibility.

Conclusion

          It is extremely important to understand the different methods of impeachment, along with the applicable exceptions and application of same.  Success on the likely 4-5 MBE questions in this area of law, and perhaps success on an evidence MEE issue depends on your knowledge of the law. For more information concerning this section of Evidence, another area of Evidence, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com