parent nodes: evidence | impeachment | policy exclusions to relevance | specific impeachment

nonspecific impeachment

Compare generally to specific impeachment, which attacks the credibility of the witness' testimony about the specific matters to which he testifies; see also impeachment

Witness bias

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Rule 611(a).

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
Rule 611(b).

There are three ways to attack witnesses for bias, although it is not specifically mentioned in the Rules: (1) using evidence of nonconviction misconduct on cross-examination under Rule 608(b), (2) cross-examination about prior convictions under Rule 609, or (3) using character witnesses to attack the truthfulness of a target witness under Rule 608(a). See [Abel v US] (holding that evidence of witness' bias from membership in Aryan Brotherhood could be introduced through Rule 608(b) cross-examination).

Note that denying cross-examination on witness bias can violate Amendment VI and Amendment V. See [Olden v KY] (violation in blocking evidence of rape complainant's living with boyfriend, where theory was that rape charges were concoted to explain why complainant was in car with other men); [Alford v US].

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Rule 608(a)
Rule 608(b)

Note generally that Rule 608(b) does not require any advance notice of cross-examination for bias. Also, compare generally to character evidence under Rule 404.

It is proper to cross-examine a witness for bias from membership in a group, involving the membership or nature of a group. [US v Abel]. Likewise, it is permissible to cross-examine an expert or lay witness about his fee. Cf. [US v Gray] (rejecting prosecutorial misconduct claim based on fee paid to government witness, on the grounds that an informant's testimony is admissible "unless there is evidence that he was promised payment contingent on conviction"); see also [US v Partin] (admitting cross-examination about witness' participation in witness protection program).

Even evidence of a conviction may be raised through 608(b) if the cross-examination shows that the witness lied about his conviction, for example on a job application. See [US v Howard].

Generally, evidence of prior dishonest acts has relevance under Rule 402 for the truthfulness of a witness; the probative value of such evidence depends on the certainty that the witness was previously dishonest. [Murphy v Bonnano] (error to exclude evidence of wife's alleged dishonest acts, including false insurance claims, lying to creditors, and pressing possibly false legal claims, where wife testified that estranged husband broke into her residence and threatened her). Note that this may conflict with Rule 404 limitations on character evidence, since evidence of prior dishonest acts is being offered to show current dishonest action. At the same time, character goes to credibility, which is at the core of how judges are supposed to evaluate witness testimony.

However, because prior bad acts must be probative of the witness' truthfulness; disreputable but not directly dishonest impeachment evidence is not admissible. See, for example, [State v Moses] (error in child abuse trial to cross-examine defendant about adultery); [US v Fountain] ("violent men are not necessarily liars"); [US v Rubin] (drug overdose "unrelated to truthfulness"); [US v Cox] (illict sex "totally immaterial to credibility"). Note that there is also generally a relevance question of prejudice or repetition under Rule 403 for such evidence.

A difficult case is evidence of theft; it may be admissible only if it involves fraud or deception, while other jurisdictions may allow such evidence depending on its specificity and accuracy, or may limit the scope of the inquiry so as to avoid prejudice. See, for example [Brent v State] (after getting child to admit that he had been punished for stealing, proper to block questions about what he had stolen, where no specific instances were offered, on the grounds that "open-ended questions" about whether a witness has "ever stolen or lied" were improper).

Note that lie-detector tests are typically inadmissible, regardless of result. But see [Simmons v Pinkertons] (proper to ask employee whether he lied to his employer about taking or passing lie detector test.
[US v Abel] (admitting evidence to impeach defense witness, who was himself testifying that another prosecution witness planned to falsely implicate defendant, where impeaching testimony showed that defendant and the two witnesses were members of the Aryan Brotherhood, who were instructed to lie, cheat, and steal for each other, on the ground that not only the "fact" but the "source and strength" of bias were relevant, that membership in the group was relevant under Rule 403, and that such evidence was sufficiently probative under Rule 608(b), despite the court below's objection that it would impermissibly paint the witness as a liar).
(a) General rule.
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
(b) Time limit.
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications.
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of appeal.
The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
Rule 609

609 is more often used than 608(b) simply because information on prior convictions is easier to get than information about nonconviction misconduct. Note that the scope of evidence admissible under Rule 609 is usually limited (type of crime, conviction, date, etc.).

609 generally allows two types of conviction evidence — evidence of felonies under 609(a)(1) and evidence of crimes of which dishonesty is an element under 609(a)(2). For criminal defendants, the probative value must outweigh the prejudice; for other witnesses, Rule 403 applies, so that the evidence is admissible unless "substantially" outweighed by prejudice. In comparison, then, conviction impeachment is more easily admissible for non-criminal-defendant witnesses than for other witnesses. Dishonesty crimes under 609(a)(2) are always admissible.

The Court endorsed the practice of looking at the context of the conviction in order to test its probative value versus its prejudice. [US v Lipscomb]. Contextual factors may include (1) the nature of the conviction, (2) its recency or remoteness, (3) whether it is similar to the charged offense, (4) whether the defendant's record is otherwise clearn, (5) the importance of credibility issues, and (6) the importance of getting the defendant's own testimony. [Gordon v US], cited approvingly by [US v Lipscomb]. Note that the fine-grained analysis of the crime's context doesn't reach the jury, so that it works in the same way as conditional relevance.


Witness sensory and mental capacity

Evidence may be admitted to attack the persuasiveness of a witness' testimony by showing that he lacked sufficient mental or sensory capacity to accurately relate the truth, although the Rules do not specifically allow or prohibit such conduct. (Note that some courts may use Rule 403 for irrelevance to exclude improper evidence of this sort.) Note also that extrinsic evidence can be used to attack the sensory or mental capacity of a witness' testimony.

For example, an attacking party can show that the witness was under the influence of drugs or alcohol, either at the time of the event or during trial. [US v Hickey]; but see [US v Rubin] (drug overdose "unrelated to truthfulness"). Additionally, cross-examination about mental illness is proper. [US v Lindstrom] (Amendment VI violation to prohibit cross-examination about witness' psychiatric history). However, note that no witness lacks competency because of mental illness.