Impeachment Methods Illustrated: Movies, Novels, and High Profile Cases

Touro Law Review Touro Law Review

Volume 28 Number 1 Article 5

2012

Impeachment Methods Illustrated: Movies, Novels, and High Impeachment Methods Illustrated: Movies, Novels, and High

Pro6le Cases Pro6le Cases

Martin A. Schwartz

Touro Law Center

, mschwartz@tourolaw.edu

John Nicodemo

Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview

Part of the Evidence Commons

Recommended Citation Recommended Citation

Schwartz, Martin A. and Nicodemo, John (2012) "Impeachment Methods Illustrated: Movies, Novels, and

High Pro6le Cases,"

Touro Law Review

: Vol. 28: No. 1, Article 5.

Available at: https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

This Practising Law Institutes Annual Trial Evidence Symposium is brought to you for free and open access by

Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized

editor of Digital Commons @ Touro Law Center. For more information, please contact lross@tourolaw.edu.

IMPEACHMENT METHODS ILLUSTRATED: MOVIES,

NOVELS, AND HIGH PROFILE CASES

Martin A. Schwartz

& John Nicodemo

I. INTRODUCTION

PROSECUTION FOR MURDER: PEOPLE V. ARMSTRONG

MENARD COUNTY COURTHOUSE, ILLINOIS (1858)

CROSS-EXAMINATION OF PROSECUTION’S EYE WITNESS

CHARLES ALLEN:

Question: Did you actually see the fight?

Answer: Yes.

Question: And you stood near them?

Answer: No, it was a hundred and fifty feet or more.

Question: In the open field?

Answer: No, in the timber.

Professor of Law, Touro Law Center. B.B.A., cum laude, 1966, City College of New York;

J.D., magna cum laude, 1968, Brooklyn Law School; L.L.M., 1973, New York University

School of Law. Professor Schwartz has authored leading treatises including Section 1983

Litigation: Claims and Defenses (4th ed. 2004-2006), Section 1983 Litigation: Federal Evi-

dence (4th ed. 2007) and Section 1983 Litigation: Jury Instructions (2007). He is co-author

of Section 1983 Litigation: Statutory Attorney’s Fees (3d ed. 1991 & Supp. 2011). Professor

Schwartz is also the author of a bi-monthly column for the New York Law Journal entitled

“Public Interest Law.” He is lead author of Section 1983 Litigation, Second Edition (Federal

Judicial Center 2008). He chairs the Practising Law Institute‟s annual program on Section

1983 litigation and Trial Evidence and co-chairs its annual Supreme Court Review program.

This Article is based on a presentation given at the Practising Law Institute‟s Trial Evidence

Symposium held in New York, New York. The author expresses appreciation for the valua-

ble assistance of the editors of the Touro Law Review, especially Issue Editor Katharine

O‟Dette and Editor-in-Chief Ara Ayvazian in the preparation of this Article.

John Nicodemo earned his Juris Doctor from Touro College Jacob D. Fuchsberg Law

Center in December 2011. He served on the Touro Law Review editorial board as Articles

Editor. Working on this Article with the esteemed Martin A. Schwartz has been both an

honor and a pleasure.

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

56 TOURO LAW REVIEW Vol. 28

Question: What kind of timber?

Answer: Beech.

Question: Leaves on it rather thick in August?

Answer: Yes.

Question: What time did all this occur?

Answer: Eleven o‟clock at night.

Question: Did you have a candle?

Answer: No, what would I want a candle for?

Question: How could you see from [the] distance of a hun-

dred and fifty feet or more without a candle at eleven o‟clock

at night?

Answer: The moon was shining real bright.

Question: A full moon?

Answer: Yes, a full moon.

Question: Does the almanac not say that on August twenty-

ninth (the night of the murder), the moon had disappeared, the

moon was barely past the first quarter instead of being full?

[No Answer]

Question: Does the almanac also say that the moon had dis-

appeared by eleven o‟clock?

[No answer]

Question: Is it not a fact that it was too dark to see anything

from fifty feet, let alone one hundred and fifty feet?

[No Answer]

Irving Younger,

the legendary Evidence professor, provided

At this point, the cross-examiner asked the judge to take judicial notice of an

astronomical table contained in an almanac. “[A] court may judicially notice a fact that is

not subject to reasonable dispute because it: (1) is generally known within the trial court‟s

territorial jurisdiction; or (2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b).

Irving Younger, The Art of Cross Examination, 1 SEC. LIT. MONOGRAPH SERIES 1, 29-30

(1976) (additional commentary by Irving Younger omitted).

“Irving Younger [was] a leading scholar on trial techniques. . . . In his 30-year career,

Mr. Younger was a Federal prosecutor, judge, professor, trial lawyer and author. Thousands

of law students have seen or heard him in some of the more than 10,000 video and audio

tapes he made on evidence, trial practice and civil procedure.” Stephen Labaton, Irving

Younger, Lawyer, 55, Dies; Judge, Law Professor, and Author, N.Y. TIMES, Mar. 15, 1988,

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 57

the above example of a cross-examiner‟s attempt to impeach the cre-

dibility of a witness during cross-examination. The attorney

representing the defendant conducting the cross-examination was Ab-

raham Lincoln.

Younger‟s example illustrates the goal of impeach-

ment—to discredit a witness‟s testimony, or, in other words, con-

vince the jury that the witness‟s testimony on direct is not worth

believing. The outcome of many cases may turn on a witness‟s cre-

dibility. If an attorney‟s cross-examination successfully impeaches a

witness by demonstrating to the jury that the witness‟s testimony is

not believable, the attorney may have successfully negated key oppo-

nent testimony. Jurors, of course, are not likely to place much re-

liance, if any, on testimony coming from the mouths of witnesses

with suspect credibility.

This article will review and illustrate the various methods of

impeachment authorized by the law of evidence. The methods fall

under seven categories: (1) physical or mental disability relating to an

attribute to be a competent witness, (2) bias, (3) convictions, (4) bad

or immoral acts, (5) bad character for truth and veracity, (6) prior in-

consistent statements, and (7) specific contradiction.

This article fo-

cuses on the Federal Rules of Evidence, although, in many instances,

state rules of impeachment, with some exceptions and variations, are

http://www.nytimes.com/1988/03/15/obituaries/irving-younger-lawyer-55-dies-judge-law-

professor-and-author.html.

JOHN EVANGELIST WALSH, MOONLIGHT: ABRAHAM LINCOLN AND THE ALMANAC TRIAL

33 (2000). Legend has it that the so-called “blue” almanac was a counterfeit designed by

Lincoln for the purpose of impeaching the witness. WALSH, supra, at 33.

Not all of the several impeachment methods are covered in the Federal Rules of Evi-

dence. Impeachment by attacking the credibility of a witness by introducing reputation or

opinion evidence relating to a witness‟s truth and veracity and immoral acts is covered by

Federal Rule of Evidence 608 (Evidence of Character and Conduct of Witness); Federal

Rule of Evidence 609 (Impeachment by Evidence of Conviction of Crime) allows the intro-

duction of evidence of a witness‟s conviction in prescribed circumstances to attack his or her

character; Federal Rule of Evidence 613 (Prior Statements of Witnesses) allows a cross-

examiner to introduce evidence of a witness‟s prior statement which is inconsistent with his

or her in-court statement in an effort to discredit his or her believability. The Federal Rules

do not expressly codify impeachment by showing a witness‟s disability (e.g., poor eyesight,

hearing difficulties, and mental incapacity), bias, or specific contradiction, but these are

well-established impeachment methods and authorized by federal law. E.g., United States v.

Owens, 484 U.S. 554, 559 (1988) (stating that “It is sufficient that the defendant has the op-

portunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his

poor eyesight, and even . . . the very fact that he has a bad memory.”); United States v. Abel,

469 U.S. 45, 49 (1984) (regarding bias); Behler v. Hanlon, 199 F.R.D. 553, 558 (D. Md.

2001) (stating that “evidence that impeaches by contradiction . . . can be both substantively

admissible[, as well as admissible] for its impeachment value”).

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

58 TOURO LAW REVIEW Vol. 28

consistent with the federal impeachment rules.

The impeachment

methods are illustrated with references to movies, novels, and high-

profile trials.

II. WHO MAY IMPEACH?

The novel, Judge and Jury,

by James Patterson and Andrew

Gross, provides a colorful application of Federal Rule of Evidence

607, which allows “[a]ny party including the party that called the

witness,” to “attack the witness‟s credibility.”

In Judge and Jury, a

government witness, Mr. Machia, is on the stand facing direct exami-

nation by the prosecuting attorney.

The direct examination begins

with the prosecutor‟s attempt to reveal the witness‟s rather extensive

criminal past, including a laundry list of felonies, with Mr. Machia

acknowledging that he has been breaking the law “since [he] learned

to use a fork.”

In the poignant 1992 film, Philadelphia,

the plaintiff, And-

rew Beckett (played by Tom Hanks), a former successful trial attor-

ney, sues his former law firm under the Americans with Disabilities

Act.

The plaintiff claims he was fired from the firm because he has

AIDS, and he chose to call his former employer to the stand.

The

plaintiff‟s attorney, played by Denzel Washington, attempts to im-

Compare, e.g., FED. R. EVID. 609(a)(1) (“[F]or a crime that, in the convicting jurisdic-

tion, 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 wit-

ness 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 de-

fendant[.]”), with OHIO R. EVID 609(a)(2) (“[N]otwithstanding Evid. R. 403(A), but subject

to Evid. R. 403(B), evidence that the accused has been convicted of a crime is admissible if

the crime was punishable by death or imprisonment in excess of one year pursuant to the law

under which the accused was convicted and if the court determines that the probative value

of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.”), and IND. R. EVID. 609(a) (“For the purpose of attacking the credibili-

ty of a witness, evidence that the witness has been convicted of a crime or an attempt of a

crime shall be admitted but only if the crime committed or attempted is (1) murder, treason,

rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime

involving dishonesty or false statement.”).

JAMES PATTERSON & ANDREW GROSS, JUDGE AND JURY ( 2006).

FED. R. EVID. 607.

PATTERSON & GROSS, supra note 7, at 58.

Id. at 58-59.

PHILADELPHIA (TriStar Pictures 1993).

Id. See generally 42 U.S.C. § 12101(b)(1) (2006).

PHILADELPHIA, supra note 11.

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 59

peach his own witness, one of Beckett‟s former clients, by showing

that the client, who testified on direct that Beckett‟s work was merely

satisfactory, had testified at an earlier deposition that he was “im-

pressed, and delighted” with Beckett‟s work.

The plaintiff‟s attor-

ney argued, “[F]ive months ago this witness characterized Andrew

Beckett as caviar. Now he‟s [calling him] a bologna sandwich.”

Why might the proponent want to impeach his own witness?

Suppose, as in Judge and Jury, a party is faced with having to call a

witness whose testimony is essential, but whose past misdeeds sub-

jects his credibility to an impeachment attack. The direct examiner

may attempt to mitigate “the sting” of a cross-examiner‟s attack on

the witness‟s credibility by exposing the witness‟s shortcomings on

direct.

The jury then learns of the witness‟s “baggage,” and the di-

rect examiner can proceed with the testimony that may be useful to

his or her case.

It is not a perfect solution for the proponent, but

perhaps less damaging than having the negative baggage brought out

for the first time on cross-examination. Also, in some cases, a direct

examiner, upon realizing that his or her witness appears uncoopera-

tive, recalcitrant, evasive, or hostile, may impeach the witness in an

Id.; see also FED. R. EVID. 801(d)(1):

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness‟s Prior Statement. The declarant testifies and is

subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant‟s testimony and was giv-

en under penalty of perjury at a trial, hearing, or other proceed-

ing or in a deposition;

(B) is consistent with the declarant‟s testimony and is offered

to rebut an express or implied charge that the declarant recent-

ly fabricated it or acted from a recent improper influence or

motive in so testifying; or

lier.

Id.

PHILADELPHIA, supra note 11.

See FED. R. EVID. 609 advisory committee‟s note.

The amendment to Rule 609(a) makes two changes in the rule. The first

change removes from the rule the limitation that the conviction may only

be elicited during cross-examination, a limitation that virtually every cir-

cuit has found to be inapplicable. It is common for witnesses to reveal

on direct examination their convictions to “remove the sting” of the im-

peachment.

Id.

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

60 TOURO LAW REVIEW Vol. 28

effort to discredit the witness‟s unexpected negative testimony.

In Philadelphia, the plaintiff‟s attorney impeached the witness

by introducing the witness‟s prior inconsistent statement.

Rule

801(d)(1)(A) provides that if a statement “is inconsistent with the

declarant‟s testimony and was given under penalty of perjury at a tri-

al, hearing, or other proceeding or in a deposition,” the inconsistent

statement is exempt from the rule against hearsay and thus admissible

both to impeach and to prove the truth of the matter the inconsistent

statement asserts.

Because Beckett‟s attorney impeached his wit-

ness by reiterating his testimony from an earlier deposition, under the

Federal Rules of Evidence, this inconsistent statement is exempt from

the rule against hearsay. In these circumstances, the trial judge

would not give the jury a limiting instruction that the inconsistent

statement may be considered only for the purpose of evaluating the

witness‟s credibility. The judge may, but is not required, explain to

the jury that the inconsistent statement may be considered both for its

truth and in evaluating the witness‟s credibility.

Rule 607 lies in direct opposition to the English common law

rule,

which forbade a party from impeaching his or her own wit-

ness.

The common law rule flowed from the notion that a party

who calls a witness vouches for the credibility of that witness. Fur-

ther, by forbidding the impeachment of one‟s own witness, a party

may be deterred from calling unreliable witnesses.

However, the

common law rule, in some instances, operated to dissuade a party

from calling a necessary witness because of the witness‟s questiona-

ble credibility.

Therefore, because parties sometimes have a press-

FED. R. EVID. 607 (A direct witness‟s hostility, or lack of cooperation, may be countered

with leading questions, which are allowed under FED. R. EVID. 611(c)).

See PHILADELPHIA, supra note 11.

FED. R. EVID. 801(d)(1)(A).

See FED. R. EVID. 607 advisory committee‟s note (“The traditional rule against

impeaching one‟s own witness is abandoned as based on false premises. A party does not

hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them.

Denial of the right leaves the party at the mercy of the witness and the adversary.”).

See RICHARD O. LEMPERT, SAMUEL R. GROSS, JAMES S. LIEBMAN, JOHN H. BLUME,

SPEPHAN LANDSMAN, & FREDRIC I. LEDERER, A MODERN APPROACH TO EVIDENCE 396 (West

Group, eds., 4d ed. 2011) (“[A] party presenting a witness may „impeach‟ any unfavorable

aspect of the witness‟s testimony, even if the bulk of the testimony is friendly.”).

Id. at 395.

Id. The Lempert book rejects the notion that unethical attorneys armed with the ability

to impeach their own witnesses would somehow use this rule to coerce their own witnesses

to “secure falsely favorable testimony” by threatening to expose unsavory information about

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 61

ing need to impeach their own witnesses on direct examination, the

common law in time was modified to allow an exception permitting

direct examiners to impeach their own witnesses if they could show

surprise or prejudice from the testimony given by the witness. The

Federal Rules effectively dispense with the need to demonstrate sur-

prise or prejudice. Although a party may, under Rule 607, impeach

his or her own witness by offering the witness‟s prior inconsistent

statement, most federal courts have not allowed this to occur if the

proponent called the witness in order to introduce the inconsistent

statement to evade the rule against hearsay.

III. THE SEVEN METHODS OF IMPEACHMENT

The evaluation of a witness‟s credibility is solely a question

for the trier of fact.

Courts, therefore, do not allow experts to give

an opinion about the credibility of another witness. Nor are lay wit-

nesses ordinarily allowed to opine about the believability of another

witness‟s credibility. But the law does authorize plentiful methods

for attacking a witness‟s credibility. We have grouped these methods

into seven categories.

The question arises whether the impeaching party is limited to

questioning the witness and accepting the witness‟s answer, or

whether the impeaching party may seek to contradict the witness‟s

testimony with other evidence, i.e., extrinsic evidence.

The answer depends on whether the particular method of im-

peachment is considered as either non-collateral or collateral.

The

them; nothing prevents these unethical attorneys from making the same threats outside of

court. Id. at 395. The authors state that the rule simply prevents ethical attorneys from

presenting a proper case. Id.

See, e.g., United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (recognizing

that the proponent may not impeach his or her own witness with prior inconsistent

statements if the purpose is to obviate the rule against hearsay).

See FED. JURY PRAC. & INSTR. § 15:01 (5th ed. 2011) (“You, as jurors, are the sole and

exclusive judges of the credibility of each of the witnesses called to testify in this case and

only you determine the importance or the weight, if any, that their testimony deserves. After

making your assessment concerning the credibility of a witness, you may decide to believe

all of that witness‟ testimony, only a portion of it, or none of it.”).

See Emily Stern, IMPEACHMENT BY WAY OF EXTRINSIC EVIDENCE § 40:6 (Robert L.

Haig, ed., 3rd ed. 2010) (“As to collateral matters (those matters not related to issues in the

case, but related only to the witness‟s credibility), the examining attorney is bound by the

witness‟s answers and cannot attempt to disprove those answers through extrinsic

evidence.”).

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

62 TOURO LAW REVIEW Vol. 28

“non-collateral” methods are considered the more important im-

peachment methods; for convenience, one may refer to them as the

“vital” methods. When cross-examiners choose to employ a vital

method of impeachment, they are not limited to simply questioning

the witness on cross-examination. The cross-examiner may seek to

contradict the witness‟s testimony by introducing extrinsic evi-

dence—that is, any type of evidence other than the in-court testimony

of the witness being impeached, e.g., documents, photographs, or a

second witness in his or her attempt to discredit the witness.

For

example, if a witness denies on cross-examination that he was bribed

to testify in the case, the cross-examiner may be permitted to intro-

duce the testimony of a second witness, a document, or an audio tape

to demonstrate the bribe. However, the right to introduce extrinsic

evidence is not unlimited and is still subject to Federal Rule 403.

Collateral methods of impeachment, on the other hand, while

authorized under the laws of evidence, are less vital that non-

collateral methods. Unlike the vital methods, collateral methods al-

low a cross-examiner to impeach only by questioning the witness on

cross-examination. In other words, extrinsic evidence may not be in-

troduced to contradict the witness‟s answer.

The only means of impeachment that the Federal Rules expli-

citly state as inadmissible relates to a witness‟s religious beliefs.

Evidence of a witness‟s religious beliefs or opinions is inadmissible

for the purpose of demonstrating that his or her credibility is affected

by the nature of those beliefs.

However, “an inquiry for the purpose

of showing interest or bias because of [religious beliefs or opinions]

is not within the prohibition.”

For example, a witness‟s affiliation

with a church that is a party to the action may be admissible to show

the witness‟s bias.

See, e.g., United States v. Abel, 469 U.S. 45 (1984) (extrinsic evidence admissible to

impeach by showing bias).

FED. R. EVID. 610; see United States v. Sampol, 636 F.2d 621, 666 (D.C. Cir. 1980)

(“The purpose of the rule is to guard against prejudice which may result from disclosure of a

witness‟s faith. The scope of prohibition includes unconventional or unusual religions.”).

FED. R. EVID. 610 (“Evidence of a witness‟s religious beliefs or opinions is not

admissible to attack or support the witness‟s credibility.”).

FED. R. EVID. 610 advisory committee‟s note.

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 63

A. The Vital Methods of Impeachment

1. Impeachment by Disability: A Witness’

Perception, Memory, Ability to Communicate,

and Obligation to Give Truthful Testimony

Under Oath

The 1992 Academy Award-winning comedy, My Cousin

Vinny,

pointedly illustrates the use of impeachment by showing a

witness‟s disability. In the movie, two defendants are charged with

robbery and the murder of a convenience store clerk. In a memorable

courtroom scene, Defense Attorney Vincent Gambini (played by Joe

Pesci) cross-examines an elderly prosecution eyewitness who, on di-

rect, identified the defendants as the perpetrators of the crime. Gam-

bini then asked the witness to put on her eyeglasses, a pair of super-

thick lensed spectacles, which suggest extreme near-sightedness. Af-

ter Gambini established that on the day of the crime the witness wore

those glasses, he asked the witness to tell the court the number of fin-

gers he is holding up; she answered “four,” when he actually dis-

played only two. The comedic moment arrives when the witness, af-

ter having sworn that her current prescription allowed her to see

perfectly, acknowledged that she may need thicker glasses.

The classic scene demonstrates impeachment by disability.

Under the law of evidence, a cross-examiner may impeach a witness

by disability by demonstrating that a witness is deficient in one or

more of the four traditional categories of characteristics required to

be considered a competent witness: (1) perception; (2) memory; (3)

communication; or (4) the ability to understand the obligation re-

quired to give truthful testimony.

The Federal Rules of Evidence

expressly require every witness to affirm under oath or affirmation

that her testimony is truthful and based on personal knowledge.

MY COUSIN VINNY (Twentieth Century Fox Film Corp. 1992).

FED. R. EVID. 603; LEMPERT ET AL., supra note 22, at 440-45.

See FED. R. EVID. 602.

A witness may testify to a matter only if evidence is introduced suf-

ficient to support a finding that the witness has personal knowledge of

the matter. Evidence to prove personal knowledge may consist of the

witness‟s own testimony. This rule does not apply to a witness‟s expert

testimony under Rule 703.

Id.

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

64 TOURO LAW REVIEW Vol. 28

The rules, however, do not set forth express rules regarding im-

peachment by disability. Regardless, impeachment by disability is a

well-established impeachment method used in federal and state courts

to show, for example, a witness‟s mental disabilities, drug dependen-

cy, alcoholism, and recollection deficiencies.

Impeachment by disability is a vital method of impeachment,

allowing an examining attorney to introduce extrinsic evidence to

impeach her witness, subject to Rule 403.

An excellent example of

a cross-examiner‟s use of extrinsic evidence to effectively impeach a

witness by disability occurred in United States v. Accetturo,

which

is the subject of Robert Rudolph‟s “The Boys from New Jersey: How

the Mob Beat the Feds.”

In Accetturo, the defendants were charged

with a laundry list of federal crimes.

The prosecution called its

purported “star witness,” Joseph Alonzo, a life-long friend of the de-

fendants, to testify that he had personally known the defendants and

can attest to their murderous venture.

During cross-examination,

the defense, in an attempt to show that Alonzo was insane, introduced

“psychiatric records showing that [Alonzo] had once been diagnosed

as „schizophrenic‟ and had been given electroshock treatments on at

See, e.g., Sampol, 636 F.2d at 667 (finding that it was proper to impeach a witness by

showing the witness‟s drug influence at the time of the event or while testifying); Roberts v.

Hollocher, 664 F.2d 200, 203 (8th Cir. 1981) (stating that the plaintiff‟s drug use was

relevant to his ability to recall specific incidents in question); Brandon v. Village of

Maywood, 179 F. Supp. 2d 847, 853 (N.D. Ill. 2001) (stating that the plaintiff‟s consumption

of alcohol on the day he was shot by a police officer “may be relevant to his memory and

perception of events”).

FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.”).

623 F. Supp. 746 (D.N.J. 1985).

ROBERT RUDOLPH, THE BOYS FROM NEW JERSEY: HOW THE MOB BEAT THE FEDS

(Rutgers Univ. Press 2009).

Accetturo, 623 F. Supp. at 748-49 (charging “conducting a racketeering enterprise in

violation of 18 [U.S.C. §] 1962(c), which included conspiracy to distribute and possession

with intent to distribute cocaine and marijuana in violation of 18 [U.S.C. §] 2 and 21 [U.S.C.

§] 841; conduct of an illegal gambling business in violation of 18 [U.S.C. §] 1955; mail

fraud in violation of 18 [U.S.C. §§] 1341 and 2; wire fraud in violation of 18 [U.S.C. §§]

1343 and 2; Hobbs Act extortion in violation of 18 [U.S.C. §§] 1951 and 2; extortionate cre-

dit transactions in violation of 18 [U.S.C. §§] 892-894 and 2; and extortion in violation of

N.J.S.A. 2C:20-5.”).

ROBERT RUDOLPH, THE BOYS FROM NEW JERSEY: HOW THE MOB BEAT THE FEDS 151

(Rutgers Univ. Press 2009).

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 65

least six occasions.”

The psychiatrist‟s records constitute an exam-

ple of extrinsic evidence used to impeach by showing disability. As a

result, Alonzo “was forced to admit that he lied to the psychologist

who examined him for the government.”

The much-publicized criminal prosecution against three New

York City detectives for the shooting of Sean Bell provided a text-

book example of the introduction of extrinsic evidence to impeach a

witness‟s credibility by disability.

After the prosecution introduced

the testimony of Trent Benefield, a passenger in Bell‟s car who pur-

portedly witnessed the alleged murder, the defense, on cross-

examination, attempted to impeach his credibility by introducing evi-

dence indicating that he may have been intoxicated or incoherent as a

result of drug use at the time of the shooting.

The defense showed

Mr. Benefield his medical reports from the hospital from the morning

of the shooting in which Benefield admitted to drinking beer and

smoking marijuana each day for the previous six years; Benefield

claimed to have had no recollection of reporting his alcohol and drug

habits to the treating physicians.

Again, introduction of the medical

reports illustrate extrinsic evidence introduced to impeach by show-

ing the witness‟s disability.

2. Bias, Motive, and Interest

Very few cases in recent memory have received the notoriety

and the overwhelming public interest as the 1994 California double

murder prosecution against former National Football League star O.J.

Simpson. During the trial, Police Detective Mark Fuhrman testified

Id. at 151-52, 198.

Id. at 198.

See Sean Bell, N.Y. TIMES, http://topics.nytimes.com/top/reference/timestopics/

people/b/sean_bell/index.html?inline=nyt-per (last updated Dec. 1, 2011) (“In the early

morning hours of Nov. 25, 2006, Sean Bell, a 23-year-old New York City man due to be

married later that day, walked out of a Queens strip club, climbed into a gray Nissan Altima

with two friends who had been celebrating with him—and died in a hail of 50 bullets fired

by a group of five police officers.”).

Michael Wilson, Passenger in Sean Bell’s Car Recounts Shooting, N.Y. TIMES, Apr. 1,

2008, http://www.nytimes.com/2008/04/01/nyregion/01bell.html?scp=1&sq=passenger%

20in%20sean%20bell%20car%20recounts&st=cse (attempting to discredit Mr. Benefield‟s

eyewitness testimony of the incident, the defense also introduced evidence that Mr.

Benefield accepted $10,000 from Al Sharpton‟s National Action Network, possibly creating

a presumptive financial interest in the case‟s outcome.).

Id.

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

66 TOURO LAW REVIEW Vol. 28

for the prosecution that he found a key piece of evidence near Simp-

son‟s residence that linked him to the murders of his former wife and

her friend, specifically the famous “bloody glove” found at the mur-

der scene.

The defense, attempting to discredit Fuhrman‟s testimo-

ny, cross-examined him about his racial biases and use of the term

“nigger,” both of which he denied. The defense was allowed to in-

troduce audiotapes, i.e., extrinsic evidence, of statements in which

Fuhrman used the term “nigger” several times in a conversation with

Laura Hart McKinney.

The defense‟s attempt to impeach the credibility of Detective

Fuhrman by showing his racial bias illustrated effective use of extrin-

sic evidence of bias. Although bias is not codified within the Federal

Rule of Evidence, the Supreme Court has held that this time-honored

method of impeachment remains available under the Federal Rules.

Because bias is a vital method of impeachment, extrinsic evidence

may be used to discredit witness testimony (subject to Rule 403).

In Simpson‟s case, Furman‟s bias was established by the audiotape

on which he was heard using the term “nigger.”

In the federal perjury prosecution against former professional

baseball superstar Barry Bonds, in which he was accused of lying un-

der oath about his steroid use, his defense attorneys sought to discre-

dit the prosecution‟s witnesses by showing their biases.

During the

cross-examinations of the two witnesses, Bonds‟ former girlfriend,

Kimberly Bell, and Bonds‟ childhood friend-turned-business asso-

ciate, Steve Hoskins, the defense introduced evidence that both Bell

and Hoskins not only had personal reasons to testify against Bonds,

but also “benefitted” from the government by agreeing to testify

GERALD F. UELMEN, THE O.J. FILES: EVIDENTIARY ISSUES IN A TACTICAL CONTEXT 170

(1997).

Id. at 169-170.

See Abel, 469 U.S. at 51 (stating that “it is permissible to impeach a witness by showing

his bias under the Federal Rules of Evidence just as it was permissible to do so before their

adoption”).

Id.; 27 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 6095 (2d

ed. 2011) (“Bias usually can be shown through extrinsic evidence. Thus, if a witness does

not admit to the facts establishing bias those facts may be proved with other evidence.”).

Laird Harrison, Evidence Against Bonds from Enemies, Defense Says, REUTERS, Apr. 7.

2011, available at http://www.reuters.com/article/2011/04/08/us-barrybonds-trial-

idUSTRE73668L20110408 (noting that Bonds‟ perjury charge arose from his alleged lying

to officials regarding his use of prohibited performance enhancing drugs while playing

professional baseball).

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 67

against him.

First, the witnesses acrimoniously ended their rela-

tionships with Bonds, calling into question their highly personal mo-

tives.

Additionally, the defense uncovered factual information re-

garding the government‟s leniency of the two witnesses regarding

charges against them (Bell for extortion and Hoskins for embezzle-

ment).

Essentially, each had an interest in testifying against Bonds

that called into question the veracity of their testimony. The de-

fense‟s introduction of the information regarding the government‟s

“leniency” deals presented another example of the use of extrinsic

evidence for the purpose of impeachment by bias.

3. Impeachment by Conviction: Can a Jury

Trust a Witness who has a Record of

Conviction?

Many classic Hollywood films offer dramatic illustrations of

impeachment by conviction. One well-known example is the 1959

motion picture courtroom drama, Anatomy of a Murder.

This vital

method of impeachment is governed by Federal Rule of Evidence

609.

In an unforgettable scene, the noir courtroom drama depicts a

Id.

ANATOMY OF A MURDER (Columbia Pictures 1959). In the film, Lieutenant Manion is

on trial for killing a man whom he believed raped his wife. Id. The excerpted scene here

portrays testimony at trial from “snitch” Mr. Miller, Manion‟s cellmate. Id.

FED. R. EVID. 609 states.

(a) In General. The following rules apply to attacking a witness‟s cha-

racter 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.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b)

applies if more than 10 years have passed since the witness‟s conviction

or release from confinement for it, whichever is later. Evidence of the

conviction is admissible only if:

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

68 TOURO LAW REVIEW Vol. 28

highly charged cross-examination of a key government witness. The

defendant, Lieutenant Manion was accused of killing a man whom he

believed raped his wife. At trial, Mr. Miller, Manion‟s cellmate and

government “snitch,” testified for the prosecution on direct regarding

Manion‟s reputation for brutal violence by offering several state-

ments he claims Manion made to him. On cross, the defense, much

to Miller‟s and the prosecutor‟s chagrin, produced a history of Mil-

ler‟s violent criminal past. After a deft and highly dramatic wearing

down of the witness‟s credibility, the defense attorney, played by

James Stewart, ends the cross stating, “Your Honor, I don‟t think I

can dignify this-creature-with anymore questions.”

Federal Rule 609 is fairly detailed, and the best way to under-

stand its provisions is to follow the category of conviction prescribed

in the rule. Let us start with subdivision (a)(2) of Rule 609, which

pertains to convictions involving an element of deceit or false state-

ment—that is, “if the court can readily determine that establishing the

elements of the crime required proving—or the witness‟s admitting—

(1) its probative value, supported by specific facts and circumstances,

substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the

intent to use it so that the party has a fair opportunity to contest its use.

Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certifi-

cate of rehabilitation, or other equivalent procedure based on a finding

that the person has been rehabilitated, and the person has not been con-

victed of a later crime punishable by death or by imprisonment for more

than 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 a juvenile adjudication is ad-

missible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult‟s conviction for that offense would be admissible to attack

the adult‟s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or inno-

cence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is ad-

missible even if an appeal is pending. Evidence of the pendency is also

admissible.

See ANATOMY OF A MURDER, supra, note 54.

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 69

a dishonest act or false statement.”

Congress intended this specific

category to be relatively narrow,

because the rule requires the cross-

examiner to “have ready proof that the conviction required . . . an act

of dishonesty or false statement.”

These “crimen falsi” convictions

may be used to impeach any witness in both civil and criminal cases,

regardless of whether the conviction was a misdemeanor or a felo-

ny.

Further, these convictions are not subject to Federal Rule of

Evidence Rule 403—that is, an attorney employing impeachment by

one of these convictions need not be concerned that the evidence will

be excluded because its probative value is substantially outweighed

by the risk of “unfair prejudice, confusing the issues, [or] misleading

the jury.”

Because of the convictions‟ high probative value on the

FED. R. EVID. 609(a)(2).

See, e.g., United States v. Kelly, 510 F.3d 433, 438 (4th Cir. 2007) (exemplifying the

narrowness of the precepts of Rule 609(a)(2) by stating that issuing “ „worthless checks

could conceivably involve forgery, false pretenses . . . or [could be as] innocuous as a check

returned for insufficient funds,‟ ” underscoring the fact-specific nature of Rule 609(a)(2)

(quoting United States v. Cunningham, 638 F.2d 696, 699 (4th Cir. 1981))); Medrano v. Los

Angeles, 973 F.2d 1499, 1507 (9th Cir. 1992), cert. denied, 508 U.S. 940 (1993) (holding

that drug use and shoplifting are not considered crimes that involve dishonesty or false

statement); United States v. Brackeen, 969 F.2d 827, 830 (9th Cir. 1992) (citing United

States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978)). “[R]obbery, burglary and theft are

ordinarily considered to be dishonest, but the term as used in Rule 609(a)(2) is more re-

stricted.” Id. We think the legislative history of this provision shows that Congress intended

to limit the term to prior convictions involving some element of deceit, untruthfulness, or

falsification which would tend to show that an accused would be likely to testify untruthful-

ly.” Id.

See FED. R. EVID. 609(a)(2) advisory committee‟s note (“The amendment requires that

the proponent have ready proof that the conviction required the factfinder to find, or the

defendant to admit, an act of dishonesty or false statement. Ordinarily, the statutory

elements of the crime will indicate whether it is one of dishonesty or false statement. Where

the deceitful nature of the crime is not apparent from the statute and the face of the

judgment—as, for example, where the conviction simply records a finding of guilt for a

statutory offense that does not reference deceit expressly—a proponent may offer

information such as an indictment, a statement of admitted facts, or jury instructions to show

that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false

statement in order for the witness to have been convicted.”).

See FED. R. EVID. 609(a)(2) advisory committee‟s note (stating that, once the past

conviction is shown to possess the required elements of either dishonest or false statement, it

is admitted “regardless of punishment”). Further, there is no provision in the rule

distinguishing between use of 609(a)(2) in criminal or civil trials. Id.

Id.; see also FED. R. EVID. 403 (“The court may exclude relevant evidence if its proba-

tive value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.”); United States v. Jefferson, 623 F.3d 227, 234 (5th Cir.

2010) (stating that convictions for bribery constitute crimes of dishonesty); Cree v. Hatcher,

969 F.2d 34, 37 (3d Cir. 1992) (stating that “[u]nlike other crimes evidence of which is ad-

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

70 TOURO LAW REVIEW Vol. 28

issue of credibility, they are automatically admissible to impeach.

The second category of convictions is subdivision (a)(1) of

Rule 609, which governs “other felony” convictions.

The reference

to “other felony” reflects that, unlike the convictions governed by

Rule 609(a)(2), subdivision (a)(1) convictions have no elements of

dishonesty, deceit, or false statement.

When a criminal defendant

testifies on his own behalf, his “other felony” convictions are subject

to a type of “reverse 403” balancing test that presumes inadmissibili-

ty; in other words, the burden is on the prosecutor to show that the

probative value of the conviction on the issue of the defendant‟s cre-

dibility outweighs the danger of unfair prejudice.

The third category, the “other felony” convictions of all other

witnesses—that is, defense and prosecution witnesses in criminal

cases and witnesses in civil cases—are subject to the usual Rule 403

principles that presume admissibility.

The last Rule 609 category, misdemeanors without an element

of false statement or deceit, are inadmissible to impeach.

Addition-

ally, mere arrests are inadmissible for impeachment purposes as

well,

although it should be noted that the conduct underlying an

arrest may be the proper object of “bad” or “immoral act” impeach-

ment under Rule 608(b).

missible for the purpose of impeachment, evidence of crimes involving dishonesty or false

statement is automatically admissible; the district court is without discretion to weigh the

prejudicial effect of admitting the evidence against its probative value”).

See sources cited supra note 61 and accompanying text.

FED. R. EVID. 609(a)(1).

Id.

See, e.g., McDonald v. Hewitt, 196 F.R.D. 650, 652 (D. Utah 2000) (finding that a

conviction of driving under the influence (a misdemeanor) was not admissible for

impeachment by past conviction).

See, e.g., Sanders-El v. Wencewicz, 987 F.2d 483, 485 (8th Cir. 1993) (affirming a

lower court decision that evidence of a witness‟s arrest was not admissible under the Federal

Rules for impeachment purposes).

FED. R. EVID. 608(b).

(b) Specific Instances of Conduct. Except for a criminal convic-

tion under Rule 609, extrinsic evidence is not admissible to prove specif-

ic instances of a witness‟s conduct in order to attack or support the wit-

ness‟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-

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 71

Rule 609(d) allows impeachment by conviction of juvenile

delinquency adjudications only if “(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant; [and]

(3) an adult‟s conviction for that offense would be admissible to at-

tack the adult‟s credibility; and (4) admitting the evidence is neces-

sary to fairly determine guilt or innocence.”

In civil trials, delin-

quency adjudications are inadmissible for impeachment purposes.

Impeachment by conviction is a vital method, and the im-

peaching party may use extrinsic evidence, but only the record of

conviction. When a cross-examiner introduces evidence of a convic-

tion to impeach, the decisional law holds that he or she generally may

show only the name of the crime, and the time and place of the con-

viction; sordid details are prohibited.

Rule 609 additionally pre-

scribes that convictions more than ten years old are presumptively in-

admissible—that is, they may be introduced only if the court

determines that the probative value of the conviction substantially

outweighs its prejudicial effect.

“The ten-year time limit thus runs

from the date of conviction or „the release of the witness from the

confinement imposed for that conviction,‟ whichever is later,” but a

period of parole or probation may not be considered confinement for

the purpose of impeachment by conviction.

Although pendency of

an appeal from the conviction does not render evidence of the convic-

tion inadmissible to impeach, “[e]vidence of the pendency [of the ap-

examined has testified about.

By testifying on another matter, a witness does not waive any privi-

lege against self-incrimination for testimony that relates only to the wit-

ness‟s character for truthfulness.

Id.

FED. R. EVID. 609(d).

See, e.g., Powell v. Levit, 640 F.2d 239, 241 (9th Cir. 1981), cert. denied, 454 U.S. 845

(1981) (finding that the lower court, in allowing in evidence regarding a witness‟s past

convictions to impeach in a civil case, violated Rule 609(d), and that Congress specifically

added “in a criminal case” when drafting the Rule).

Wilson v. City of Chicago, 6 F.3d 1233, 1236-37 (7th Cir. 1993) (noting that unless the

details of a crime bear directly on a witness‟s credibility, a cross-examiner “[cannot be]

permitted to elicit the details of the crimes underlying [the witness‟s] conviction”).

FED. R. EVID. 609(2)(b). This Rule invokes a “Reverse 403”—that is, the introduction

of evidence is presumed to be inadmissible unless the proponent can show that its probative

value substantially outweighs its prejudicial effect. Id.

United States v. Rogers, 542 F.3d 197, 200 (7th Cir. 2008) (quoting the language of

Rule 609(2)(b) to determine both the calculation of the ten-year period and the fact that the

text of 609(2)(b) makes no “mention of periods of probation or parole”).

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

72 TOURO LAW REVIEW Vol. 28

peal] is also admissible.”

A party may introduce prior conviction evidence to impeach

his or her own witness in an effort to “remove the sting” and avoid a

potential assault on cross-examination.

This direct examination tac-

tic, however, carries with it two potential consequences. First, if a

defendant testifies about his or her own past convictions on direct, he

or she waives the right to challenge its admissibility on appeal.

Ad-

ditionally, once a party testifies about his or her own conviction(s), it

“opens the door” for opposing counsel to present further evidence re-

garding the conviction(s).

B. Impeachment by Collateral Methods

1. Impeachment of a Witness by Evidence of

Bad or Immoral Acts—You Can Ask, But

That’s All You Can Do

Federal Rule of Evidence 608(b) governs the introduction of

evidence of a witness‟s prior “bad or immoral” acts for the purpose of

impeachment.

Author Shana Alexander in her book, The Pizza

Connection,

illustrates the use of this method of impeachment. The

Pizza Connection recounts the 1985 federal trial of twenty-two Mafia

defendants accused of running a billion dollar drug-smuggling and

money-laundering enterprise. Nearly all of the defendants were in

the pizza business. At one point, defense attorney Lee Ginsberg fe-

FED. R. EVID. 609(e); see Wilson, 6 F.3d at 1237 (stating that, pursuant to Rule

609(a)(1), a convicted criminal‟s conviction was admissible for impeachment purposes

regardless of the fact that the conviction was pending appeal).

Ohler v. United States, 529 U.S. 753, 757-58 (2000).

Id. at 760 (concluding that “a defendant who preemptively introduces evidence of a

prior conviction on direct examination may not on appeal claim that the admission of such

evidence was error”).

See Ohler, 529 U.S. 753. See also Gee v. Pride, 992 F.2d 159, 161 (8th Cir. 1993). “At

trial, [the defendant] testified on direct examination that he had previously been convicted of

possession of a concealed weapon and that he was appealing three robbery convictions.” Id.

at 160. On cross-examination, opposing counsel introduced evidence of the three

convictions, which the trial court allowed. Id. at 160-61. On appeal, the Eight Circuit

affirmed, holding that “[the defendant] „opened the door‟ to evidence regarding his prior

robbery convictions by volunteering on direct examination that he was appealing the

convictions,” as well as his concealed weapon conviction. Id. at 161.

See FED. R. EVID. 608.

SHANA ALEXANDER, THE PIZZA CONNECTION (1988).

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 73

verishly grilled prosecution witness, Mafia turncoat Tomasso Buscet-

ta, on cross-examination about a history of less-than truthful beha-

viors including, lying to the Immigration and Naturalization Service,

lying about his age, and lying about his residency status. For each of

these attacks on his moral character for truth-telling, he answered in

the affirmative, admitting to having previously lied to authorities.

Ginsberg then asked Mr. Buscetta if he lied when he said he “spoke

only Spanish,” to which he defiantly answered, “si.”

Buscetta, after

having testified for several days, told Ginsberg, “I speak English to

live, but not well enough to get along in this courtroom.”

Rule 608(b) sets forth the governing principles. First, the

conduct described under this rule did not result in a conviction; the

rule plainly pertains to “specific instances of a witness‟s conduct.”

The conduct must be “probative of the character for truthfulness or

untruthfulness . . . .”

Rule 608 is subject to Rule 403; therefore,

specific act evidence may be excluded if its “probative value is sub-

stantially outweighed by a danger of . . . unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or need-

lessly presenting cumulative evidence.”

Additionally, a witness

may assert his or her Fifth Amendment right against self-

incrimination when asked about the conduct that may incriminate

him or her.

Because Federal Rule of Evidence 608(b) other act evidence

is a collateral method of impeachment, if the witness denies having

engaged in the particular conduct extrinsic evidence may not be in-

troduced to prove that the witness in fact engaged in the conduct.

Id. at 65-66.

Id. at 65-66, 68.

See FED. R. EVID. 608 (emphasis added). When the conduct did result in a conviction,

the operative impeachment rule is FED. R. EVID. 609.

Id.; see also United States v. Weeks, 611 F.3d 68, 71 (1st Cir. 2010) (allowing

testimony pertaining to a witness‟s use of false social security numbers because it “went to

credibility and was therefore admissible under Federal Rule of Evidence 608(b)”).

See FED. R. EVID. 403.

FED. R. EVID. 608(b); see FED. R. EVID. 608(b) advisory committee‟s note (“While it is

clear that an ordinary witness cannot make a partial disclosure of incriminating matter and

then invoke the privilege on cross-examination, no tenable contention can be made that

merely by testifying he waives his right to foreclose inquiry on cross-examination into

criminal activities for the purpose of attacking his credibility.”); see also U.S. CONST. amend

V (stating that no person “shall be compelled . . . to be a witness against himself”).

FED. R. EVID. 608; see, e.g., Deary v. City of Gloucester, 9 F.3d 191, 197 (1st Cir.

1993) (“The purpose of the ban on extrinsic evidence is „to avoid holding mini-trials on

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

74 TOURO LAW REVIEW Vol. 28

However, the cross examiner need not necessarily accept the wit-

ness‟s initial denial of the conduct. In other words, the cross-

examiner may continue to press the witness to acknowledge commit-

ting the act until, of course, the judge determines that “enough is

enough.” The following example from the federal criminal prosecu-

tion of Senator Harrison A. Williams, illustrates this trial tactic of

“pressing” the witness:

Q: Mr. Weisberg, would you agree with me, yes or

no[,] that you would describe yourself as having

[spent] most of your life living by your wits end living

off money you got from other people under false pre-

tenses; yes or no?

A: Yes.

Q: Would you also agree with me, sir, that a confi-

dence man such as yourself would lie, cheat, swindle

whenever it serves your purpose to do so?

A: That‟s not correct.

Upon Mr. Weisberg‟s denial, the cross-examiner pressed the

witness who ultimately acknowledged that he previously testified

“that a confidence man would lie, cheat, swindle, whenever it serves

his purpose to do so.”

Unless the court determines that the cross-

examiner‟s repeated probing violates that tenets of Rule 403, the

cross-examiner may continue to attempt to “wear down” a witness in

an effort to elicit an affirmative response.

2. Impeachment by Evidence of Bad Reputation

for Truthfulness

In the highly-celebrated case of State v. Von Bulow,

defen-

dant Clause von Bulow was on trial for the attempted murder of his

irrelevant or collateral matters‟ ” (quoting United States v. Beauchamp, 986 F.2d 1, 3 n.1

(1st Cir. 1993))).

IRVING YOUNGER ET AL., PRINCIPLES OF EVIDENCE 317 (3rd ed. 1997). In the

prosecution of United States Senator Harrison A. Williams, Jr., for “conspiracy, bribery,

receipt of unlawful gratuities, and conflict of interest,” key government witness Melvin

Weisberg, a co-operating government witness, was grilled by defense counsel on cross

concerning his prior acts pertaining to truthfulness. Id. at 317-18.

Id. at 318.

475 A.2d 995 (R.I. 1984).

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 75

heiress wife, Martha.

The prosecution alleged that Clause injected

Martha with insulin, causing a coma and, eventually, her death.

an attempt to damage the prosecution‟s theory, the defense called Joy

O‟Neill, one of Martha‟s fitness instructors to testify that after Joy

complained to Martha about her weight problem, Martha suggested

Joy take a shot of insulin. Martha explained that insulin consumed

sugar in one‟s system. The prosecution then called Nancy Raether, a

rather pleasant, intellectual and poised woman. After testifying that

she knew O‟Neill, when asked about O‟Neill‟s reputation for truth-

fulness, Ms. Raether “lowered her head and said softly, „I‟m afraid it

wasn‟t very good.‟ ”

An examining attorney may introduce evidence to show a

witness‟s bad character for truth and veracity, pursuant to Federal

Rule of Evidence 608(a).

We have placed this method of im-

peachment in the collateral category, mainly for convenience in orga-

nizing the material pertaining to the various impeachment methods.

In fact this is the only impeachment method that requires the im-

peaching party to call a second witness. In order to impeach a wit-

ness‟s credibility under this method, the attorney must call a second

“character” witness, who may testify in the form of either an opinion

or reputation of the prime witness‟s character for truth or veracity.

Evidence of specific conduct of the prime witness is not permissible

for this purpose. Prior to the introduction of either opinion or reputa-

tion testimony, the examining attorney must lay a proper foundation

Id. at 999.

Id.

WILLIAM WRIGHT, THE VON BULOW AFFAIR 305 (1983); see also REVERSAL OF

FORTUNE (Sovereign Films 1990).

FED. R. EVID. 608(a).

A witness‟s credibility may be attacked or supported by testimony about

the witness‟s reputation for having a character for truthfulness or un-

truthfulness, or by testimony in the form of an opinion about that charac-

ter. But evidence of truthful character is admissible only after the wit-

ness‟s character for truthfulness has been attacked.

Id.

Id.; see also FED. R. EVID. 405(a).

When evidence of a person‟s character or character trait is admissible, it

may be proved by testimony about the person‟s reputation or by testimo-

ny in the form of an opinion. On cross-examination of the character wit-

ness, the court may allow an inquiry into relevant specific instances of

the person‟s conduct.

Id.

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

76 TOURO LAW REVIEW Vol. 28

establishing that the character witness knows the prime witness to the

extent that the character witness is in a position to know either the

prime witness‟s reputation or to offer an opinion.

For matters of

reputation evidence, the attorney must first establish that the charac-

ter witness belongs to the same community as the prime witness in

order for the character witness to readily know the “bad” reputation

at issue.

The “community” at issue must be “sufficiently numer-

ous” to comprise a community for the purpose of this impeachment

method

and must include both the prime and character witnesses as

members.

For example, the community may consist of the area in

which they reside, work, or attend school.

Once the examining attorney establishes that the character

witness both knows the primary witness and belongs to the same

community as the primary witness, the examining attorney may in-

quire about the reputation or opinion of the primary witness.

100

Rule

405(a), which governs the admissibility of character evidence, limits

questions about reputation or opinion on direct examination, but on

cross-examination, an attorney may inquire into relevant instances of

the prime witness‟s conduct.

101

The rationale is that if the character

witness does not know about these specific acts, she may not be in a

position to testify about the prime witness‟s reputation or offer an

opinion. On the other hand, if she acknowledges the specific acts,

See Wilson, 6 F.3d at 1239 (holding that a journalist‟s opinion testimony regarding a

witness‟s character for untruthfulness to be relevant because the journalist spent a great deal

of time with the witness and became accustomed to his lack of veracity).

See Michelson v. United States, 335 U.S. 469, 478 (1948) (“[This testimony] is

accepted only from a witness whose knowledge of defendant‟s habitat and surroundings is

intimate enough so that his failure to hear of any relevant ill repute is an assurance that no

ugly rumors were about.”).

People v. Fernandez, 950 N.E.2d 126, 127-28 (N.Y. 2011) (holding that the County

Court erred when it precluded reputation testimony by finding that an extended family was

not large enough to be considered a community).

See United States v. Augello, 452 F.2d 1135, 1140 (2d Cir. 1971) (finding that “[the

character witness] probably was not a member of the communities in which [the primary

witness] lived or worked and it is unclear whether his categorical answer „poor,‟ based on

interviews of [twelve] members of those communities, referred to [the primary witness‟s]

community reputation or to his reputation with the particular individuals interviewed”); see

also Maine v. Ricker, 770 A.2d 1021, 1024 (Me. 2001) (noting that the “community must be

sufficiently numerous for the opinion of reputation to be reliable”); People v. Bouton, 405

N.E.2d 699, 704 (N.Y. 1980) (“A reputation may grow wherever an individual‟s associations

are of such quantity and quality as to permit him to be personally observed by a sufficient

number of individuals to give reasonable assurance of reliability.”).

100

FED. R. EVID. 405(a).

101

Id.

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 77

there may be a question about the accuracy of her opinion as to the

character witness‟s reputation.

We reemphasize that while the authors have placed this me-

thod of impeachment in the collateral category, in fact it is not impor-

tant where it is placed. The impeachment method requires a specific

method of proof, namely testimony, of a character witness who testi-

fies in the form of reputation or opinion.

a. In New York, It’s All About

Reputation: Keep Your Opinions to

Yourself

The rule of evidence in New York State regarding impeach-

ment by evidence of character differs from the federal rule in that

New York courts allow the introduction only of reputation evi-

dence.

102

Much like the federal rules, the New York rule allows a

character witness who “resides, moves, circulates or does business

within the natural radius of repute of the witness who has previously

testified” to proffer evidence of bad reputation.

103

However, unlike

the federal rules, the New York rule prohibits testimony of the wit-

ness‟s opinion and limits the character witness to testify solely on the

primary witness‟s bad reputation for veracity within a particular

community.

104

C. Hybrid Methods

1. Impeachment by Showing a Prior

Inconsistent Statement

Few Hollywood courtroom classics have been able to match

the intensity of the scene in the 1957 classic, Witness for the Prosecu-

tion,

105

in which Leonard Vole, played by Tyrone Power, is prosecut-

102

See GARY SHAW, CANUDO ON EVIDENCE LAWS OF NEW YORK 154-55 (2010).

103

Id. at 155.

104

See People v. Hanley, 833 N.E.2d 248, 250 (N.Y. 2005) (“The trial court must allow

[reputation] testimony, once a foundation has been laid, so long as it is relevant to contradict

the testimony of a key witness and is limited to general reputation for truth and veracity in

the community.”).

105

WITNESS FOR THE PROSECUTION (MGM Studios 1957).

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

78 TOURO LAW REVIEW Vol. 28

ed for the murder of a wealthy widow, Emily French.

106

Defense at-

torney Sir Wilfred Roberts, played by Charles Laughton, impeaches

the beautiful, but sinister Christine Helm Vole, memorably played by

screen legend Marlene Dietrich. In the film, Christine testified that

her husband, Leonard Vole, after returning home on the night of the

murder with blood on his clothes, confessed to murdering the victim.

A letter that Christine wrote to her lover that evening, which stated

that she planned to lie on the witness stand in order to send her hus-

band to prison and to be free of playing the part of a loving, grateful

wife, came into defense counsel Sir Wilfred‟s possession.

107

The

next day, upon re-calling Christine to the stand, he read the letter

aloud into the record, forcing Christine, with an icy stare, to admit

writing it. Finally, Vole went free.

Federal Rule of Evidence 613 covers prior inconsistent state-

ments of witnesses for purposes of impeachment.

108

Oral as well as

written inconsistent statements, or even silence, may be admissible,

provided the out-of court statement in some way contradicts the wit-

ness‟s in-court testimony.

109

A testifying witness‟s out-of-court in-

consistent statement is not hearsay when offered solely to impeach,

because the out-of-court statement is not being offered for its truth,

but only to prove that the inconsistent statement was made.

110

The

106

Id.

107

Id.

108

FED. R. EVID. 613.

(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 re-

quest, show it or disclose its contents to an adverse party‟s attorney.

(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 oppos-

ing party‟s statement under Rule 801(d)(2).

Id.

109

See FED. R. EVID. 613 advisory committee‟s note; see also United States v. DeSimone,

488 F.3d 561, 572 (1st Cir. 2007) (“Although „statements need not be directly contradictory

in order to be deemed inconsistent within the purview of Rule 613(b),‟ . . . the decision

whether an inconsistency exists „lies within the sound discretion of the district court.‟ ”

(quoting Udemba v. Nicoli, 237 F.3d 8, 18 (1st Cir. 2001))).

110

See FED. R. EVID. 801(c) (“ „Hearsay‟ means a statement that: (1) the declarant does

not make while testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.”); see also, Fed. R. Evid. 801(d)(1)

(“The declarant testifies and is subject to cross-examination about a prior statement, and the

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 79

mere making of the inconsistent statement, apart from its truth or fal-

sity, bears relevance to the credibility of the witness‟s testimony. An

inconsistent statement introduced for the sole purpose of impeach-

ment should be followed by limiting instructions to the jury that the

statement was introduced not to prove the truth of the matter asserted,

but solely for the mere fact that it was formerly made by the witness

in order to assess his or her credibility.

111

Impeachment by prior inconsistent statement may be either a

collateral or vital method, depending on whether it relates to an im-

portant or tangential fact in the case.

112

Rule 613 explicitly prescribes

that once extrinsic evidence of the inconsistent statement is intro-

duced, the witness must be “afforded an opportunity to explain or de-

ny the same and the opposite party is afforded an opportunity to inter-

rogate [the witness] thereon . . . .”

113

Whether the witness‟s

opportunity to explain or mitigate the inconsistency occurs prior to

the introduction of the statement or after, or whether the opportunity

is provided on cross-examination or redirect examination, is irrele-

vant; the rule simply prescribes that the witness must be afforded the

opportunity at some point to explain or deny the inconsistent state-

ment.

114

The Advisory Committee note to Federal Rule of Evidence

613(a) refers to the common law rule established by The Queens

Case, also referred to as the case of Queen Caroline, that a witness

statement: (A) is inconsistent with the declarant‟s testimony and was given under penalty of

perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the

declarant‟s testimony and is offered to rebut an express or implied charge that the declarant

recently fabricated it or acted from a recent improper influence or motive in so testifying; or

111

See FED. R. EVID. 105 (“If the court admits evidence that is admissible against a party

or for a purpose—but not against another party or for another purpose—the court, on timely

request, must restrict the evidence to its proper scope and instruct the jury accordingly.”).

112

See United States v. Int‟l Bus. Machines Corp., 432 F. Supp. 138, 139-40 (S.D.N.Y.

1977) (noting that Rule 613 does not explicitly prohibit the introduction of extrinsic

evidence, but, according to 613(b), “[e]xtrinsic 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”).

113

Id. at n.7; see also United States v. Hudson, 970 F.2d 948, 955 (1st Cir. 1992) (quoting

the advisory committee‟s note to Rule 613(b), “ „the traditional insistence that the attention

of the witness be directed to the statement on cross[-]examination is relaxed in favor of

simply providing the witness an opportunity to explain and the opposite party an opportunity

to examine the statement, with no specification of any particular time or sequence . . . .‟ ”).

114

Hudson, 970 F.2d at 955.

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

80 TOURO LAW REVIEW Vol. 28

first be shown a written inconsistent statement before being cross-

examined about it.

115

The case was a scandalous divorce proceeding

brought by King George IV of Wales and Queen Caroline. The King

had many love affairs and drank heavily, while the Queen had her

own sexual affairs. One individual described her as a “sensual wan-

derer.”

116

Federal Rule of Evidence 613 (a) abolished the English

common law rule that required the cross-examiner first to show the

witness a written inconsistent statement, or tell the witness about the

time, place, and circumstance of an oral inconsistent statement, be-

fore questioning the witness about the statement. According to the

Advisory Committee Note to Rule 613, Rule 613 “abolishes this use-

less impediment to cross-examination. Both oral and written state-

ments are included.”

117

The example provided from Witness for the Prosecution pro-

vides a dramatic cinematic turn of events. In the film, the cross-

examining defense attorney offered the letter written by Christine not

only for the purpose of discrediting her prior statement, but also for

the truth of the letter‟s contents.

118

Christine not only lied on the wit-

ness stand, but the words contained within the letter to her lover stat-

ing that she would lie served to free the defendant. It may be as-

sumed that the jurisdiction in which the diabolical Christine was

subject to cross-examination allowed introduction of evidence of

prior inconsistent statements for their truth. Under Federal Rule of

Evidence 801(d)(1)(A), a witness‟s prior inconsistent statement is ex-

empt from the rule against hearsay if the inconsistent statement was

made under oath at some type of judicial or quasi-judicial proceed-

ing, or deposition.

119

Note that Rule 801(d)(1)(A) does not require

115

The Queen‟s Case, 129 Eng. Rep. 976 (1820).

116

See Marcelle Mouledoux, The Divorce Trial of Queen Caroline: Contemporary

Responses and Social Attitudes, http://www.loyno.edu/history/journal/mouledoux.htm.

117

FED. R. EVID. 613 advisory committee‟s note.

118

WITNESS FOR THE PROSECUTION, supra note 105.

119

FED. R. EVID. 801(d)(1)(A).

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness‟s Prior Statement. The declarant testifies and is

subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant‟s testimony and was giv-

en under penalty of perjury at a trial, hearing, or other proceed-

ing or in a deposition.

Id.

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 81

that there be a right of cross-examination at the proceeding.

120

As a

result, a witness‟s inconsistent statement made during grand jury tes-

timony is exempt from the rule against hearsay and thus admissible

both for impeachment purposes and for its truth.

2. Impeachment by Contradiction

During his direct examination [in United States v Gilmore,

121

the criminal defendant] and his attorney had the following ex-

change:

Q: After you were indicted in this case, you got a chance to

go through the evidence?

A: Uh-huh.

Q: That they had against you to show that you were a drug

dealer, correct?

A: Yes.

Q: And we went through that evidence, didn‟t we?

A: Yes, we did.

Q: And you see any evidence in this case that you‟re a drug

dealer, sir?

A: No, I didn‟t sell no drugs. I never did.

Before beginning its cross-examination, the Gov-

ernment advised the District Court that it intended to

ask [the defendant] about two prior felony drug distri-

bution convictions in order to contradict his sworn

statement that he never sold drugs. [The defendant]

objected. The District Court overruled the objection,

stating that it was “going to permit the government to

cross examine [the defendant] on that conviction, to

contradict his statement that he‟s never sold drugs.”

The District Court, however, would not allow the

Government to offer the certified judgments into evi-

dence unless Gilmore denied the convictions. The

District Court also informed the parties that it would

120

Id. (referring to “a trial, hearing, or other proceeding or in a deposition . . . .”).

121

553 F.3d 266, 269-70 (3d Cir. 2009).

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

82 TOURO LAW REVIEW Vol. 28

issue a limiting instruction to the jury to use the con-

victions only for credibility purposes and not as evi-

dence of guilt.

Pursuant to the District Court‟s ruling, the Gov-

ernment cross-examined Gilmore about his prior drug

convictions:

Q: Mr. Gilmore, you testified on direct that you never

sold drugs, correct?

A: Yes, I did.

Q: Isn‟t it a fact, Mr. Gilmore, that you were con-

victed here in the Superior Court of Camden County

on May 22nd, 1992 of possession with intent to distri-

bute [controlled dangerous substances]? And posses-

sion of [controlled dangerous substances] with intent

to distribute within a thousand feet of a school?

A: That was a long time ago.

Q: But you were convicted of selling drugs?

A: Yes, I was, a long time ago, and I changed my life

around when I got out.

122

Although not expressly set forth in the Federal Rules of Evi-

dence, federal courts permit the use of specific contradiction for the

purposes of impeachment.

123

Under this method of impeachment, the

cross-examiner attempts to show that a fact or facts testified to on di-

rect is inaccurate, making all or part of the witness‟s direct testimony

not believable. Some federal courts, in determining whether to allow

specific contradiction evidence, apply Federal Rule of Evidence

403,

124

while others allow extrinsic evidence of impeachment by con-

122

Id. at 269-70 (footnote omitted).

123

See, e.g., id.; see also Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1456-57 (10th Cir.

1997).

124

See, e.g., United States v. Kincaid-Chauncey, 556 F.3d 923, 932 (9th Cir. 2009) (stat-

ing that “when making the decision whether to permit impeachment by contradiction, trial

courts should consider the Rule 403 factors, such as confusion of the jury or the cumulative

nature of the evidence”); see also United States v. Gilmore, 553 F.3d 266, 271 (2009) (stat-

ing that “the Government may impeach a defendant‟s testimony with contradictory evidence

unless the „probative value [of the evidence] is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of un-

due delay, waste of time, or needless presentation of cumulative evidence.‟ ” (alterations in

the original)).

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5

2012 IMPEACHMENT METHODS ILLUSTRATED 83

tradiction on non-collateral, or vital matters only—that is, the courts

will allow it if “ „the matter itself is . . . relevant in the litigation to es-

tablish a fact of consequence, i.e., . . . relevant for a purpose other

than mere contradiction of the in-court testimony of the witness.‟ ”

125

Further, because evidence of specific contradiction is not provided

for in the federal rules, the evidence must “satisf[y] the Rule 403 ba-

lancing test and is not barred by any other rule of evidence.”

126

It is

unlikely that the application of one of these methods rather than

another will lead to a different result because if the issue is tangential

or collateral, the probative value of the extrinsic evidence is likely to

be quite low, leading to exclusion under Rule 403. Essentially,

“[i]mpeachment by contradiction is a means of „policing the defen-

dant‟s obligation to speak the truth in response to proper

questions.‟ ”

127

IV. IN TYPICAL HOLLYWOOD STYLE . . . THE END

Impeachment plays a vital role in so many trials. Because

impeachment presents numerous possibilities for high drama scena-

rios and sometimes even a few laughs, Hollywood screenwriters and

crime fiction novelists have come to employ impeachment methods

throughout film scenes and book excerpts, both fiction and non-

fiction. Crime reporters for high-profile trials anxiously await possi-

ble page-turning real-life dramas in which witnesses are attacked by

keen defense attorneys. Moviegoers‟ eyes remained glued to the

screen when Marlene Dietrich, as the femme fatale Christine in Wit-

ness for the Prosecution, admitted her malicious lies. Avid crime

drama enthusiasts have turned the pages awaiting trial scenes in

James Patterson novels in which the cross-examiner nabs the perjur-

er. And no one alive in the 1990‟s can forget the furor over discover-

ing Detective Mark Fuhrman‟s racist tendencies during the notorious

O.J. Simpson murder trial. These tactics were seen and witnessed by

millions, and they were all examples of impeachment.

Law students, law professors, and legal practitioners take

notice. The study of the rules of impeachment is not simply limited

125

Beauchamp, 986 F.2d at 4.

126

Id.

127

Gilmore, 553 F.3d at 271 (quoting United States v. Greenidge, 495 F.3d 85, 99 (3d Cir.

2007)).

Schwartz and Nicodemo: Impeachment Methods Illustrated

Published by Digital Commons @ Touro Law Center, 2012

84 TOURO LAW REVIEW Vol. 28

to the Federal or State evidence rule volumes, or judicial decisional

law. The rules spell out the recurring evidentiary principles for pur-

poses of trial practice. The cases in reported decisions amplify the

meaning of the rules, fill in the details, and apply the rules on an on-

going basis. However, we must not overlook that there exists another

resource, one that is also right within our reach. The next time you

purchase a movie ticket, pick up the remote control, begin flipping

through the pages of a great crime novel, or peruse the newspaper,

remain aware of the evidentiary educational possibilities that lie with-

in the realm of entertainment.

Touro Law Review, Vol. 28, No. 1 [2012], Art. 5

https://digitalcommons.tourolaw.edu/lawreview/vol28/iss1/5