Impeachment Applications Questions - page 110 and page 111 of your textbook

1. Is evidence of Mr. Smith's prior statement to his sister admissible? If yes, how would this testimony be presented? Could Mr. Smith's sister be called? Why or why not.

__answer__: Mr. Smith’s prior statement to his sister would be admissible as impeachment evidence regarding his credibility. Mr. Smith could be cross-examined on the stand about the prior statement. If he denies having made such a statement, his sister could be called to testify about it. FRE 613 allows extrinsic evidence to be brought in to prove the prior inconsistent statement if the witness denies having made it.

2. Is evidence of Mr. Smith's sister's prior engagement to Mr. White admissible? Why or why not?

__answer__: Evidence of Mr. Smith’s sister’s prior engagement to Mr. White may admissible to show that Mr. Smith has a bias against Mr. White. Since Mr. White jilted Mr. Smith’s sister, it may be that Mr. Smith harbors a grudge and wishes to see Mr. White convicted on the gun smuggling charges, irrespective of their merit. Since the impeachment issue involves bias, extrinsic evidence would be admissible. Mr. Smith’s sister could be called and asked about Mr. Smith’s prior inconsistent statement, and the unhappy outcome to the relationship she shared with Mr. White.

3. If Mr. Smith's sister is allowed to testify to Mr. Smith's prior inconsistent statement regarding Mr. White's boat never having left the dock during the entire month of May, is this testimony usable by defense to prove that in fact Mr. White's boat stayed docked during that time? Why or why not?

__answer__: Evidence of Mr. Smith’s sister’s prior engagement to Mr. White is admissible to show the basis for Mr. Smith’s potential bias. Under the Federal Rules of Evidence, Mr. Smith’s prior inconsistent statement is only admissible to impeach Mr. Smith’s credibility. It is not admissible to prove that Mr. White’s boat was in fact docked during the relevant time period. This is because is would be hearsay if admitted to prove the truth of the assertion. (In some states, suchas Arizona, the courts allow the admission of prior inconsistent statements for general purposes, to prove the truth of the matter asserted in the statement itself. The reasoning is that even if the prior statement is admitted for impeachment purposes, the jury will likely consider whether the statement is true of not. Notwithstanding any limiting instruction, the jury isn’t likely to make the subtle distinctions required to use the evidence for impeachment purposes only. Arizona therefore takes a practical, if theoretically inconsistent approach, and allows the evidence in for general purposes.)

Consider the following hypothetical.

Sharon is charged with aggravated assault. She claims she didn't intend to actually shoot the gun but was only trying to scare the victim when the gun went off by accident. Sharon was convicted seven years ago of the crime of embezzlement. She took $200 from her employer's petty cash drawer and placed phony receipts in the box to cover her theft.

4. Under what rule would evidence of Sharon's embezzlement conviction be admissible?

__answer__: Sharon’s embezzlement conviction would be admissible under FRE 609(a)(2). Embezzlement is usually a crime involving a high level of deceit, and conviction of such a crime would be admitted to impeach Sharon’s character.

5. How is Sharon's embezzlement conviction relevant to this case?

__answer__: Sharon’s embezzlement conviction is not relevant to the elemental issues of this case, but it is relevant to her credibility. The rationale behind admitting such convictions is that since Sharon was willing to be deceiptful and abscond with someone else’s money by embezzling, such a conviction is probative as to the credibility of her word.

6.__Is Sharon's embezzlement conviction excludable on either grounds of irrelevancy, or unfair prejudice pursuant to Rule 403? Why or why not?__

__answer__: The court is without authority under FRE 609(a)(2) to exclude Sharon’s embezzlement conviction. Although in most instances, the court is required to determine that the probative value of a prior conviction outweighs its prejudicial effect pursuant to FRE 403, when the prior conviction is for a crime involving deceit, the court is not given the discretion to exclude the evidence. The language of 609(a)(2) says that the evidence of a crime of dishonesty or false statement “shall be admitted.” The evidence comes in if it is proffered. (The arguments formulate on what constitutes a crime involving dishonesty or false statement.)

Assume the following question that Sharon's conviction seven years ago was for the crime of felony robbery.

7.__ Under what rule would evidence or Sharon's felony robbery conviction be admissible?__

__answer__: Sharon’s felony robbery conviction would be potentially admissible under FRE 609(a)(1).

8. How is Sharon's felony robbery conviction relevant to this case?

__answer__: Sharon’s felony robbery conviction is not relevant to prove the current charge of aggravated assault. It is only relevant to impeach her credibility as a witness.

9. Is Sharon's robbery conviction excludable on either grounds of irrelevancy, or unfair prejudice pursuant to Rule 403? Why or why not.

__answer__: Sharon’s felony robbery conviction would be relevant to impeach her credibility, pursuant to FRE 609(a)(1). However, before the court would be allowed to admit this evidence, it would have to make a determination measuring the probative value of that evidence against its prejudicial effect. If the probative value is outweighed by the prejudicial effect, the prior conviction evidence is inadmissible. (Robbery is not a crime of deceit by definition so the court does have discretion under FRE 609(a)(1) which it would not have under 609(a)(2).) Arguments to exclude the prior robbery conviction would center around the difficulty a jury would have in considering such a conviction in terms of its impeachment value alone. There are correlations between robbery and aggravated assault that might be difficult to ignore. On the other hand, since Sharon’s sole defense is based on her word that the gun went off by accident, any evidence regarding her credibility would be extremely probative and important. Therefore, there is a good chance that the court would admit this prior conviction for impeachment purposes, even after weighing its prejudicial effect.