§ 22.11 SPECIFIC CONTRADICTION

• Jurisdiction: United States

§ 22.11. SPECIFIC CONTRADICTION

Although there is no rule on the subject, the Federal Rules permit impeachment by specific contradiction.¹⁹⁴ For example, witness A may testify that he saw the defendant shoot the victim, but witness B, who was also present, may testify that she saw a different person shoot the victim.¹⁹⁵

Example. In State v. Eddy,¹⁹⁶ an alibi witness (Labelle) testified that neither defendant nor his confederate (Ritchie) committed burglary because they were both with her at the time. The prosecution called the confederate who admitted pleading guilty to the crime. The court held: "Ritchie's guilty plea was introduced not to show that Labelle was generally untrustworthy, but rather to contradict Labelle's assertion that neither Ritchie nor defendant could have committed the crime. Rule 609 simply does not address the use of a prior conviction for the purpose of impeachment by contradiction."¹⁹⁷ Specific contradiction involves present conduct (e.g., lying at trial), while Rule 608(b) concerns prior conduct (e.g., lying on an earlier occasion). Specific contradiction would also apply if the witness was simply mistaken at trial.

Extrinsic evidence. In the above hypothetical, witness B's testimony as an eyewitness would be admissible on the merits even in the absence of the impeachment effect on witness A's testimony. A problem arises when the only purpose of B's testimony is to contradict A's testimony, especially if the contradiction relates to a minor point. Because we all make mistakes, the impeachment value is minimal. This situation gave rise to the so-called "collateral matters" rule, which prohibited the introduction of extrinsic evidence on collateral issues. The policy underlying this rule is to avoid the dangers of surprise, jury confusion, and wasted time.

The same issue arises with prior inconsistent statements,¹⁹⁸ and the same result should apply here — Rule 403 should govern.

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Notes:

^[194] See United States v. Fonseca, 435 F.3d 369, 375 (D.C. Cir. 2006) ("And evidence that would contradict Williams' trial testimony, even on a collateral subject, would have such a tendency because it would undermine her credibility as a witness regarding facts of consequence. The technique that defense counsel wished to employ, known as 'impeachment by contradiction,' is a well-recognized tool for exposing a witness' lack of credibility,"; Rule 403 governs); United States v. Castillo, 181 F.3d 1129, 1133 (9th Cir. 1999) ("Castillo's...