IMPEACHMENT AND CROSS- EXAMINATION

1. IMPEACHMENT AND CROSS- EXAMINATION

2. NEWSPAPER STORY 10/20/11 Judge dismisses sexual assault charges against prosecutor for failure to include exculpatory evidence to Grand Jury Vic had civil action pending and settled for $450,000. Note: Both sides agree that certain acts occurred. Defense says it was consensual.

3. Story goes on to detail: 1) vic went to lunch with her colleague, the prosecutor, with the intent to have sex; 2) DA�s office waited 4 months after notice of event to report it to police; 3) DA�s office allowed prosecutor to continue to try sexual assault cases during that time; 4) prosecutor had run against elected DA 3 times in past; 5) Elected DA was retiring and supported candidate #1 and prosecutor openly supported candidate #2 6) Elected DA did not report to police because he was concerned that Vic was trying to leverage a permanent job out of the situation

4. Hypos not based on facts in newspaper story - What if: Prosecutor had reputation for philandering and broken marriages? Prosecutor had reputation for cheating in his cases? Vic had psychiatric history? Vic had been caught with a false ID in college?

5. Another Hypo 3 defendants kill a drug dealer over who controls a spot The 3 D�s are gang members The vic and the 3 D�s all have prior convictions � vic for drug dealing; the 3 D�s for autotheft, terrorizing threats and drug dealing 1 D is running a prostitution business with his GF, who will testify in his behalf 2 prosecution witnesses are on probation at the time of trial 1 D gave alibi statement; another a self defense statement describing what all three did in the killing � both will testify somewhat or completely differently All percipient witnesses will testify to significant differences in the facts when compared to what they said to the police and what they testified to at PX There is evidence that gang members associated with the 3 D�s have engaged in a pattern of threats and intimidation against several of the percipient witnesses who have large changes in their stories

6. Impeachment & Cross-Examination Scope Who may impeach Prior inconsistent stats Prior consistent stats Contradiction Character of witness Capacity to perceive, recollect, communicate Bias or interest Threats Religious beliefs Limits on complaining witness in sex offenses Criminal defendants Suppressed evidence Hearsay declarants Expert testimony/credibility Ethical constraints

7. Impeachment & Cross-Examination The Scope of Cross-Examination: Definition � cross-examination is the questioning of a witness by a party other than the direct examiner on a matter within the scope of the direct examination of the witness.

8. Impeachment & Cross-Examination The Scope of Cross-Examination: Usually allows examination into bias, motive or interest; inferences drawn in direct; and facts sought to be established on direct. Credibility of the witness is always within the scope of the direct examination

9. Impeachment & Cross-Examination The Scope of Cross-Examination: Credibility of the witness is always within the scope of the direct examination

10. Impeachment & Cross-Examination General rule in determining credibility: The fact finder may consider any matter that has any tendency in reason to prove or disprove the truthfulness of witness� testimony Evid. Code sec. 780 FRE 401 and 402

11. Impeachment & Cross-Examination Sec. 780: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (a) His demeanor while testifying and the manner in which he testifies. (b) The character of his testimony. (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

12. Impeachment & Cross-Examination Sec. 780: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (d) The extent of his opportunity to perceive any matter about which he testifies. (e) His character for honesty or veracity or their opposites. (f) The existence or nonexistence of a bias, interest, or other motive. (g) A statement previously made by him that is consistent with his testimony at the hearing.

13. Impeachment & Cross-Examination Sec. 780: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. (i) The existence or nonexistence of any fact testified to by him. (j) His attitude toward the action in which he testifies or toward the giving of testimony. (k) His admission of untruthfulness.

14. Impeachment & Cross-Examination Compare CALJIC 2.20 and CALCRIM 226

15. CALJIC 2.20 Every person who testifies under oath [or affirmation] is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:

16. CALJIC 2.20 The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; The ability of the witness to remember or to communicate any matter about which the witness has testified; The character and quality of that testimony; The demeanor and manner of the witness while testifying; The existence or nonexistence of a bias, interest, or other motive; The existence or nonexistence of any fact testified to by the witness; The attitude of the witness toward this action or toward the giving of testimony .

17. CALJIC 2.20 A statement [previously] made by the witness that is [consistent] [or] [inconsistent] with [his] [her] testimony; The character of the witness for honesty or truthfulness or their opposites; An admission by the witness of untruthfulness; The witness' prior conviction of a felony; Past criminal conduct of a witness amounting to a misdemeanor; Whether the witness is testifying under a grant of immunity.

18. CALCRIM 226 You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.

19. CALCRIM 226 In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: How well could the witness see, hear, or otherwise perceive the things about which the witness testified? How well was the witness able to remember and describe what happened? What was the witness's behavior while testifying? Did the witness understand the questions and answer them directly? Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? What was the witness's attitude about the case or about testifying?

20. CALCRIM 226 In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? How reasonable is the testimony when you consider all the other evidence in the case? Did other evidence prove or disprove any fact about which the witness testified? Did the witness admit to being untruthful? What is the witness's character for truthfulness? Has the witness been convicted of a felony? Has the witness engaged in [other] conduct that reflects on his or her believability? Was the witness promised immunity or leniency in exchange for his or her testimony?

21. CALCRIM 226 Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.

22. CALCRIM 226 If the evidence establishes that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good. If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject. If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

23. Impeachment & Cross-Examination The Federal Rules have no provision equivalent to Evid. Code sec. 780, however, FRE 401 and 402 cover the same territory: 401: Definition of relevant evidence This definition certainly covers impeachment of a witness 402: makes relevant evidence admissible

24. Impeachment & Cross-Examination Q: Who may impeach a witness? A: Any party � you can impeach a witness during direct or cross examination Authority: FRE 607 and Evid. Code sec. 785

25. Impeachment & Cross-Examination Prior Inconsistent Statements FRE 613 & Evid. Code sec. 1235/770 Statement must be inconsistent with present testimony Must allow opportunity to explain (direct confrontation or subject to recall) Extrinsic evidence of prior inconsistent statement allowed California � may be offered for the truth of the matter stated in the prior inconsistent statement. FRE � if offered pursuant to Rule 613, use is limited to impeachment, not for truth. To be offered for truth, must meet the requirements of Rule 801(d)(1)(A).

26. Impeachment & Cross-Examination Prior Consistent Statement FRE 801(d)(1)(B) & Evid. Code sec. 1236/791

27. Impeachment & Cross-Examination Contradiction � During the course of a witness�s testimony, he or she will normally state that certain facts occurred. Proof that even one of them actually did not occur is indicative of a general lack of credibility. In fact, juries are instructed that a witness who is willfully false in one part of their testimony is not to be trusted in others.

28. Impeachment & Cross-Examination Contradiction � The issue becomes how much latitude the court will allow in permitting proof of the existence or non-existence of a fact testified to by the witness. 352 weighing required � the closer the fact is to core issues in the trial, the more latitude is likely to be given. Note that additional concerns re: misuse by the jury or confusion of issues, arise when the witness is the accused. See People v. Doolin (2009) 45 Cal.4th 390, 433-439 [direct & cross of defendant & expert; also rebuttal case disproving facts about which they testified].

29. Impeachment & Cross-Examination Character of the Witness 1. Prior Bad Acts 2. Prior Convictions 3. Reputation & opinion concerning veracity

30. Impeachment & Cross-Examination Character � Prior bad acts Common law rule � allowed the cross examiner to impeach by inquiring into acts of misconduct that did not result in a conviction. Dear Abby � Waltz, Park, Freidman text at pp.494-495

31. Impeachment & Cross-Examination Character � Prior bad acts FRE 608(b) � allows limited inquiry on cross-examination � if on subject of character for truthfulness and bars proof by extrinsic evidence

32. Impeachment & Cross-Examination Character � Prior bad acts California � Evidence Code bars proof of prior bad acts by statute (sec. 787) Prop 8 � Right to truth-in-evidence abrogates sec. 787 in criminal cases �see P. v. Wheeler (1992) 4 Cal.4th 284 Sec. 787 still applies in civil cases, in conjunction with sections 786 and 790: i.e., impeachment on character is limited to traits of honesty or veracity or their opposites; specific instances of conduct is barred (limited to reputation/opinion) and evidence of good character can only be offered after character attacked

33. Impeachment & Cross-Examination Character � prior convictions Common rule � a witness could be impeached with a prior conviction of a crime FRE � 609 Evid. Code � 788 P. v. Wheeler � misdemeanor convictions and prior bad acts not resulting in convictions

34. Impeachment & Cross-Examination Character � prior convictions FRE 609(a)(1) � if witness other than accused � evidence of conviction SHALL be admitted if punishable by death or more than 1 year in prison - If accused � subject to 403 weighing FRE 609(a)(2) � as to any witness, evidence of conviction SHALL be admitted if elements of crime include act of dishonesty or false statement FRE 609(b) � presumptive 10 year wash, subject to 403 weighing

35. Impeachment & Cross-Examination Character � prior convictions Evid. Code � 788 � says �convicted of a felony� Case law required statute to be applied via 352 weighing and developed 5 prong �Beagle� test for this weighing: 1. bearing on character for truthfulness/veracity 2. remoteness 3. similarity 4. numerosity 5. will it influence decision to testify (particularly def.) This test was used to exclude impeachment with priors Criticism: �gave def. with priors false aura of veracity� Applied in civil and criminal cases

36. Impeachment & Cross-Examination Character � prior convictions Concept of Sanitizing: No cleansing � the nature of the prior is what is probative on credibility; sanitizing increases danger of prejudice b/c encourages adverse inferences on credibility from felonies that have much less value for that purpose Full cleansing � limits probative value of priors; also limits 2 forms of prejudice, 1) the jury hostility to witness from the nature of the prior conviction; 2) limits prejudice flowing from prior that is identical or too similar to charged offense Partial cleansing � effort to have the best of both worlds; however, less probative and still vulnerable to prejudicial effects of both other methods

37. Impeachment & Cross-Examination Character � prior convictions Prop 8 and People v. Castro (1985) 38 Cal.3d 115 Although Prop. 8 mandates impeachment by any felony conviction �without limitation�, due process requires exclusion of convictions that do not involve �moral turpitude� �moral turpitude� means a witness�s moral depravity of any kind shows a readiness to do evil, which has a tendency in reason to shake one�s confidence in his or her honesty Additionally, Prop. 8 retains court�s discretion to exclude under sec. 352 Castro retained the Beagle factors as guidance in evaluating the probative value and the prejudicial effect Prop.8 and Castro changed the playing field � now the test is used to allow impeachment with priors Note: An argument can be made that the old Beagle test still prevails in a civil case

38. Impeachment & Cross-Examination Character � prior convictions Prop. 8 and People v. Wheeler Evid. Code bars impeachment with misdemeanor convictions (sec. 787 [subject to 788, no specific instances of conduct] and 788 [may impeach with felony conviction]) Now can impeach with specific instances of conduct in crim. case, including misdemeanor conviction. Problem: proof of conviction is hearsay [a judge�s out of court pronouncement that witness stands convicted of a crime, offered to prove that witness is convicted of that crime] �what do we do if there is a hearsay objection? Question: Why isn�t a felony conviction similarly vulnerable to a hearsay objection? Note: Wheeler analysis also permits specific instances of moral turpitude conduct to impeach where no conviction occurred.

39. Impeachment & Cross-Examination Character � reputation & opinion concerning truthfulness and veracity FRE 608(a) � opinion or reputation evidence so long as: 1) limited to character for truthfulness or untruthfulness; and 2) evidence of truthful character is admissible only after character of witness has been attacked. FRE 608(b) � specific instances of conduct on cross in discretion of court if probative on issue of truthful character

40. Impeachment & Cross-Examination Character � reputation & opinion concerning truthfulness and veracity � California Civil cases: Evid. Code sec. 786 � limited to character traits of truthfulness and veracity Evid. Code sec. 787 � bar on specific instances of conduct Evid. Code sec. 790 � cannot offer evidence of good character for truthfulness unless first attacked

41. Impeachment & Cross-Examination Character � reputation & opinion concerning truthfulness and veracity � California Criminal cases: Evid. Code sec. 786, 787 & 790 abrogated by Prop. 8 Truth-in-Evidence provision Specific instances of conduct permitted Offer of good character for truth permitted without character first being attacked Subject to sec. 352 weighing

42. Impeachment & Cross-Examination CHARACTER � REPUTATION & OPINION CONCERNING TRUTHFULNESS AND VERACITY Limits on the use of extrinsic evidence FRE 608(b) � can ask about specific instances of conduct probative to character for truthfulness to support or attack credibility � Subject to 403 weighing May not prove specific instance by extrinsic evidence Compare Evid. Code sec. 787- bar on use of specific instances of conduct Overruled by Proposition 8 (Right to truth in evidence) Thus, admissible subject to sec. 352 weighing

43. Impeachment & Cross-Examination Capacity: 1. To understand 2. To perceive 3. To recollect 4. To communicate 5. Personal Knowledge

44. Impeachment & Cross-Examination Capacity � to understand duty to tell truth FRE 603 7 Evid. Code sec. 701(a)(2) & 710 A witness must be able to understand the difference between the truth and a lie and must take an oath promising to tell the truth.

45. Impeachment & Cross-Examination Capacity � to perceive Evid. Code sec. 780(c) & 780(d) Extent of opportunity to perceive (poor eyesight, poor lighting, no eyewear, obstructions, competing noise, language issues, etc.) Mental health, drug use, and alcohol issues

46. Impeachment & Cross-Examination Capacity � to recollect Evid. Code sec. 780(c) Mental health, drug use, and alcohol issues Cf. past recollection recorded and refreshing recollection

47. Impeachment & Cross-Examination Capacity � to communicate Evid. Code sec. 701(a)(1) & 780(c)

48. Impeachment & Cross-Examination Capacity � Personal knowledge FRE 602 & Evid. Code sec. 702(a) To testify to a particular matter a witness must have personal knowledge of it; such knowledge may be establish by the witness�s own testimony as well as by other evidence. Exception: expert testimony

49. Impeachment & Cross-Examination BIAS, INTEREST OR MOTIVE The fact finder may consider the existence or non-existence of a bias, interest or motive on the part of the witness. Such evidence may cast doubt on the accuracy of the witness�s testimony. Note: Bias, interest or motive either may be in favor of one side or hostile to one side.

50. Impeachment & Cross-Examination BIAS, INTEREST OR MOTIVE RELATIONSHIPS: family, sexual, employment, friendship MEMBERSHIP: teammates, club or social order, religious congregations, gangs*, F.O.P., MADD, same neighborhood PAST HISTORY: enemies, cell mates, past crime partners, Prosecutor�s office previously charged husband, revenge, reward FINANCIAL CONCERNS: expert witness fees, book deal, civil suit attendant to criminal case PENAL CONCERNS: immunity, seeking leniency, probation or parole, pending charges ATTITUDES: racial, gender, sexual orientation, pro-defense or prosecution, activist � political, environmental

51. Impeachment & Cross-Examination Threats: To properly evaluate the witness� credibility the finder of fact is entitled to know that there have been threats, and subject to sec. 352, the nature of the threats. See discussion in People v. Guerra (2006) 37 Cal.4th 1067, 1140-1143. A witness who testifies despite threats may be more credible because of that personal stake in the matter. Evidence of threats to a witness may be useful to the jury in evaluating testimony and prior inconsistent statements

52. Impeachment & Cross-Examination Threats: From defendant � a significant threshold level of proof connecting the threats to the defendant is required before such evidence will be admitted (Peo. V. Williams (1997) 16 Cal.4th 153, 197-201.) From a witness � relevant both as to the maker and the recipient of the threats (informant Steele � Peo. V. Mickle (1991) 54 Cal.3d 140, 167-169.) From any source, known or unknown � evidence that a witness is afraid to testify or fears retaliation is admissible because it bears on credibility. (Peo. V. Harris (2008) 43 Cal.4th 1269, 1288-1290.) From the prosecution � where overreaching by police or prosecution occurs, e.g. pressure to testify to a specific version of the facts or face more severe charges (Peo. V. Badgett (1995) 10 Cal.4th 330, 352-363.)

53. Impeachment & Cross-Examination RELIGIOUS BELIEFS Rule: Evidence of a witness� religious beliefs is inadmissible to attack or support credibility FRE 610 Evid. Code sec. 789 Caveat: case law has upheld Prop. 8 and invalidated sec. 786, 787 and 790 in criminal cases � if challenged sec. 789 likely to meet same fate; however, sec. 352 weighing still applies.

54. Impeachment & Cross-Examination Statutory limits on cross-examination of the complaining witness in sex offense cases (�Rape Shield Law�) FRE: 412 Evid. Code sec. 782, 783 & 1103 Severe limitations on admissibility of evidence of sexual behavior of C.W. with persons other than the accused; Admissibility determination is multi-step process designed to protect victims while maintaining fair trial rights Note: Applies to both criminal and civil cases

55. Impeachment & Cross-Examination FRE 412 Sub.(a): in cases involving alleged sexual misconduct � evidence offered to prove victim engaged in other sexual behavior and evidence offered to prove victim�s sexual predisposition is inadmissible except as provided by sub. (b) & (c) Sub.(b): 1) in criminal case: A) evidence of specific instances of sexual behavior to prove another was source of semen, injury or other physical evidence; B) evidence of specific instances of conduct with the accused to prove consent or by the prosecution; C) evidence which, if excluded, would violate defendant�s constitutional rights. 2) in civil case: evidence to prove sexual behavior or predisposition of victim is admissible if probative value outweighs danger of harm to any victim and of unfair prejudice to any party. Reputation evidence of victim is admissible only if it has been placed in controversy by victim. Sub.(c): requires written notice specifically describing the evidence and the purpose for which it is offered; requires notice to be served on parties and on the victim. Requires court to conduct in camera hearing giving everyone the opportunity to be heard and requires all documentation of issue to remain under seal.

56. Impeachment & Cross-Examination Evid. Code sec. 1103(c)(1) � bars opinion, reputation and specific instances of conduct evidence concerning sexual conduct of C.W. to show consent Sec. 1103(c)(2) � presumptively bars evidence of C.W.�s manner of dress at time of offense to show consent Evid. Code sec. 782 � if offered to attack character of C.W.: 1) written offer of proof detailing behavior and relevance; 2) must include affidavit filed under seal (containing alleged behavior); 3) if offer sufficient, hearing outside presence of jury; 4) if court finds evidence is relevant and not excluded by 352, court makes an order stating what questions will be permitted; 5) affidavit remains sealed unless appeal, and then only open to appellate attorneys. Evid. Code sec. 783 � procedure in civil cases � somewhat less stringent

57. Impeachment & Cross-Examination Criminal Defendants Rule: a criminal defendant gives up the privilege against self incrimination only with regard to those subjects testified to on direct. Rule: if a criminal defendant denies the evidence against him or makes a general denial of the crime, the scope of cross-examination is very wide E.g. the prosecutor may fully amplify defendant�s testimony by inquiring into all facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination that explains or refutes statements or inferences to be drawn from testimony.

58. Impeachment & Cross-Examination Suppressed Evidence There are numerous situations where the prosecution is barred from using certain evidence in its case-in chief, but may be permitted to use such evidence to impeach a defendant who has testified inconsistently. Evidence suppressed under 4th Amendment Testimony from a suppression motion hearing Statement taken in violation of Miranda Testimony from a probation violation hearing A minor�s statements to a probation officer A statement made during the course of plea negotiations

59. Impeachment & Cross-Examination Hearsay Declarants: Impeachment of hearsay declarant � FRE 806 & Evid. Code sec. 1202

60. Rule 806: Attacking and Supporting  Credibility of Declarant When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

61. Evid. Code 1202:Credibility of Hearsay Declarant Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.

62. IMPEACHMENT OF HEARSAY DECLARANT (cont) Inconsistent statements Prior or subsequent (fairness to opponent) Admissible to impeach but not for truth Exception: Evid. Code sec. 1294 Proponent of hearsay loses opportunity to have declarant explain inconsistency Cf FRE 613(a) & (b); 801(d)(1); Evid. Code sec 1235 Prior convictions

63. Impeachment & Cross-Examination Expert Testimony and Credibility Traditional Rule: Expert testimony to support or attack credibility is inadmissible Experts still barred from offering opinion on whether witness is telling the truth in this case Cf. lay witnesses: not allowed to opine whether another witness is telling the truth, but are allowed to testify as to whether witness has a reason to lie in this case (e.g. bias, motive or interest)

64. Impeachment & Cross-Examination Expert Testimony and Credibility More recent approach: permits limited use of expert testimony to describe how witness or defendant acted in conformity with syndrome (e.g. Rape Trauma Syndrome; Child Accommodation Syndrome; Battered Women�s Syndrome) Allows expert testimony to explain aspects of pattern of behavior noted in literature where relevant in case at hand (e.g. delay in reporting; or recantation or refusal by family to report; or perceived need to defend self with lethal force where no imminent threat present)

65. Impeachment & Cross-Examination Ethical Constraints: Good faith basis for question, inference or impeachment (prior bad acts, convictions or reputation for veracity) Duty to guard against answer containing inadmissible evidence Duty to avoid presenting false testimony � (must know, rather than merely suspect, testimony is false) Fed. Court � prosecutors may not call a witness soley for purpose of impeaching witness with prior inconsistent statement that would otherwise be inadmissible