601: General Rule of Confidence
602: Lack of Personal Knowledge
Rule 607: Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.
Who May Impeach? And Problems Impeaching Your Own Witness.
– this rule provides that a party may impeach their own witness id they have to. This is in contravention of the old rule, the “voucher rule” that prevented a party from impeaching their own witness.
– Ways to attack witness credibility: 1) self contradiction 2) contradiction 3) specific acts of dishonesty 4) criminal convictions 5) propensity for lack of veracity 6) bias 7) mental incapacity
– Less purposeful ways: 1) witness misspoke 2) witness cant remember 3) witness misperceived ( however these are subject to a rule 402 relevancy test)
– 607 Concerns: the rule enables the utilization of a party to contradict its own witness by using prior statements that was substantively inadmissible. (now a party can abuse the rule by getting inadmissible evidence in front of a jury when impeaching their own witness.
– Problem: when out of court evidence is used to contradict a witness, although solely used for impeachment purposes, the jury can consider it the statement for its truth even when it is not supposed to because it will be accompanied by a limiting instruction.
– Solution: The court can by its own accord or by inquisition of the adversary be asked to disallow a party to impeach its own witness under rule 403.
– How to asses 403 under 607: court considers: 1) the extent to which the evidence is probative of the witness’s credibility. 2) the truthfulness of the evidence if used as prejudicial but substantive
Conclusion: if the relevancy is low and its potential prejudicial impact high, the court is justifiable in disallowing the witness. When a party is damaged or surprised on direct, it may be considered in a 403 balancing test whether the party should be allowed to impeach its own witness. Therefore, using this to circumvent other rules of evidence, or to have an ulterior motive of the evidence used to impeach for another purpose such as to prejudice the jury will disa
evidence to impeach a witness on a collateral matter. Substantive issues are clearly not collateral. They are relevant to impeach a witness and are also admissible as proof.
[1] Evidence offered to impeach a witness after that witness has left the stand. E.g. if you want to show that the witness is the brother of someone, you can introduce other witnesses to testify to the relationship.
[2] b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
[3] Prior statements of a witness.
