Examination of a Witness

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Who may be impeached, ect.

Rule 607. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness's credibility.

What does it mean to impeach?

1. To impeach a witness means to attack the witness' credibility or believability. This can be accomplished by showing that the testimony is either untrue or inaccurate.

Intrinsic Impeachment:

Comes from the witness on the stand; from the witness' own mouth. Six types of intrinsic methods of impeachment: Example of Intrinsic: Contradiction, bias, criminal convictions (subject to 609), bad "untruthful" acts (subject to 608(b)), testimonial capacities, and prior inconsistent statements (subject to 613).

Extrinsic Impeachment

Comes from something other than the witness on the stand; needs verification from outside evidence such as another witness or from a document. Collateral matter rule.

Examples of Extrinsic: bias, a fact at issue, testimonial capacities, convictions, and reputation or opinion witness, who has knowledge of another's truthfulness.

Rule 608a. A Witness's Character for Truthfulness or Untruthfulness

a. Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

608B. Specific Instances of Conduct

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
1. the witness; or
2. another witness whose character the witness being cross-examined has testified about.>

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.>

Rule 609a. Impeachment by Evidence of a Criminal Conviction

a. In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:>
1. for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:>

A. must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and>
B. must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and>
2. for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement.

609b. Scope of Cross-Examination.

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.>

Rule 612. Writing Used to Refresh a Witness's Memory

a. Scope.This rule gives an adverse party certain options when a witness uses a writing to refresh memory:>
1. while testifying; or>
2. before testifying, if the court decides that justice requires the party to have those options.>
b. Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
c. Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or--if justice so requires--declare a mistrial.>

Rule 611a. Mode and Order of Examining Witnesses and Presenting Evidence; Control by Court

a. Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

1. make those procedures effective for determining the truth;
2. avoid wasting time; and
3. protect witnesses from harassment or undue embarrassment.


c. Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:>
1. on cross-examination; and>
2. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.>

Rule 613a. Witness's Prior Statement>

a. Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.

Rule 613b. Extrinsic Evidence of Prior Inconsistent Statement

b. Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision b does not apply to an opposing party's statement under Rule 801(d)(2).

Rule 614. Court's Calling or Examining a Witness

a. Calling. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.
b. Examining. The court may examine a witness regardless of who calls the witness.
c. Objections. A party may object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present

Rule 615. Excluding Witnesses

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
a. a party who is a natural person;
b. an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;
c. a person whose presence a party shows to be essential to presenting the party's claim or defense; or
d. a person authorized by statute to be present.

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