CREDIBILITY OF WITNESSES
After a witness has been sworn in and testifies on direct examination, the opposing party may cross-examine the witness. Often times the opposing party will attempt to discredit the witness by challenging his or her credibility. The opposing party may try to challenge the witness’s credibility by employing numerous impeachment techniques.
The credibility of a witness is to be determined by the fact finder. Whether a jury or a judge sees and hears the witness’s testimony, the fact finder must determine whether they believe that the witness is credible. If the witness makes contradictory statements, is hostile, or is unable to answer the questions, the fact finder may determine that the witness is not credible. Either party is precluded from accrediting or bolstering their witnesses. This means that one cannot build up a witness until the witness has been attacked by an impeachment method.
There are a number of impeachment methods that may be employed when an opposing party seeks to discredit a witness. Impeachment is defined as an attempt to show that the witness may not be testifying truthfully. Either party may impeach a witness, including the party who originally called the witness to testify. A witness may be impeached through cross-examination or by the opposing party calling another witness to contradict what the first witness testified to.
Prior Inconsistent Statements
A witness may be impeached by use of prior inconsistent statements. If the witness made a different statement in a deposition or to an officer prior to trial that statement may used to impeach the witness’s different trial testimony. Typically, prior inconsistent statements are hearsay and are not admissible. However such statements are admissible for impeachment purposes. Additionally, if the prior inconsistent statement was made under oath at a prior proceeding, the statement is admissible.
Another impeachment method is the introduction of evidence showing that the witness may be biased. For example, evidence may be presented showing that the witness is biased in his or her view against police officers because of his or her criminal experience.
Introducing evidence of a prior conviction if the conviction involved a crime involving dishonesty may also be permitted. However, use of a prior conviction is not permitted if:
- More than 10 years has passed from the date of the conviction.
- The conviction was obtained when the witness was a juvenile.
- The witness had been pardoned because of innocence or had not been convicted of any crimes after his or her pardon.
Prior Bad Acts
Introduction of evidence of a witness’s prior bad acts for impeachment purposes lies within the discretion of the court. So long as the opposing party, in good faith, presents evidence of the witness’s bad act to attack his or her credibility, the prior bad act evidence may be admitted.
Opinion or Reputation
A witness may be impeached through opinion or reputation testimony. The witness testifying as to the original witness’s character may state her own opinion as to the original witness’s truthfulness.
Impeachment of a Hearsay Declarant
Impeachment of a witness whose out-of-court statement was introduced is permissible. The witness is not entitled to have the opportunity to explain or deny the statement.
If a witness has been impeached by any of the above-stated methods, the proponent may attempt to rehabilitate the witness. Rehabilitation may be done through:
- Redirecting the witness and giving the witness an opportunity to respond to issues raised during cross-examination.
- Presenting other witnesses to testify to the veracity and truthfulness of the original witness.
- Introducing a prior consistent statement on redirect examination.