Impeachment

JurisdictionColorado,United States
CitationVol. 22 No. 6 Pg. 1207
Pages1207
Publication year1993
22 Colo.Law. 1207
Colorado Lawyer
1993.

1993, June, Pg. 1207. Impeachment




1207


Vol. 22, No. 6, Pg. 1207

Impeachment

by Donna A. Salmon

Under the Colorado Rules of Evidence ("CRE"), to impeach generally means to call into question the veracity of a witness. This article divides impeachment into seven categories or modes, which apply to all cases, and then discusses impeachment issues peculiar to criminal cases.

It should be noted that this article covers only rules of law applicable to Colorado state courts, and that the federal rules and law may differ. The Colorado Rules of Evidence which most frequently play a role in impeachment are: CRE 403, 607, 608(a) and (b), 609-611, 613 and 801(d) (1)(a).


IN GENERAL

Depending on the circumstances, the potential modes of impeachment of a witness' credibility, as found in both the CRE and case law, are (1) partiality (interest, bias, prejudice and motive for testifying); (2) character and reputation for truth and veracity; (3) prior conviction; (4) prior act of misconduct; (5) contradiction by other evidence; (6) use of alcohol and drugs; and (7) self-contradiction with one's own prior inconsistent statement.

Impeachment by reference, to matters of religion is not allowed.(fn1) Leading questions may be employed in the process of attacking the witness' credibility in any of the foregoing modes.(fn2)

Counsel may not properly propound to a witness questions that can cause doubt as to the witness' credibility when there is no reasonable basis in fact for such interrogation.(fn3) This "good faith basis" requirement applies to all modes of impeachment. In the absence of an objection, lack of good faith will not be presumed on appeal.(fn4)

A matter is considered collateral when it has no independent significance to the case and would not be independently provable regardless of impeachment.(fn5) A witness may not be contradicted by extrinsic evidence, including evidence of the conduct of the witness, if the matter is collateral.


POTENTIAL MODES OF IMPEACHMENT

Partiality

The Colorado Rules of Evidence do not explicitly allow for impeachment for bias, prejudice and motivation for testifying. Nevertheless, though the scope and limits of cross-examination on these matters are within the trial court's discretion, the parties are afforded wide latitude for this mode of impeachment.(fn6)

There is an endless variety of matters which may give rise to untrustworthy partiality, including love, hate, fear, family relationship, financial interest in the outcome, business relationship, employment, membership in an organization(fn7) and racial prejudice.(fn8)

In criminal cases, additional factors include whether witnesses have been charged with or threatened with criminal prosecution for alleged offenses not connected with the case in which they testify; whether the testimony against the defendant might be influenced by a promise of, or hope or expectation of, immunity or leniency with respect to charges pending against the witnesses; or concern for possible jeopardy to their probationary status if on probation.(fn9) In addition to the circumstances of the witnesses' situation, conduct and feelings, counsel also may inquire into statements by witnesses relating to possible partiality.

Matters in this area are not considered collateral within the general common law that precludes contradiction on collateral matters. Therefore, a party who inquires into partiality on cross-examination is not bound by the denial of the witness.(fn10) The cross-examiner may contradict the witness by extrinsic evidence.(fn11) Colorado takes the more liberal view that to show partiality by extrinsic evidence, it is not necessary to lay a foundation by asking about these extrinsic facts first on cross-examination.(fn12) Nevertheless, introduction of the extrinsic evidence is subject to judicial discretion with respect to other concerns expressed in CRE 403, regarding relevance,(fn13) and the


[Please see hardcopy for image]

Donna A. Salmon, Denver, is a partner in the firm of McMichael, Burlingame, Multz & Lipton.



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protection of the witness from harassment or undue embarrassment [CRE 611 (a)]. Moreover, the trial court must see "that the sideshow does not take over the circus."(fn14)

As a practical matter, the party calling the witness may wish to bring out on direct examination any factors which may go to partiality (e.g., "Would the fact that you are a friend of the Plaintiff cause you to lie or color your testimony in any way?"), so as to dispel the unjustified impression of concealment. In a criminal case, the prosecution has an "unqualified right" to question the witness about the matter of promises or deals in an effort to dispel any unfavorable innuendo of partiality to the prosecution.(fn15)


Character and Reputation for Untruthfulness

Opinion and Reputation as to Untruthfulness

A witness may be impeached by an opinion as to his or her untruthfulness.(fn16) The foundation for such an opinion requires a showing that a witness knows the witness to be impeached and the circumstances under which that knowledge arose.(fn17)

A witness also may be impeached by testimony as to his or her reputation in the community for untruthfulness.(fn18) The foundation for such reputation evidence is acquaintance with the witness to be impeached and the community.(fn19) A sample foundation for both opinion and reputation evidence is as follows:

Q. Do you know the defendant John Jones?

A. Yes.

Q. How long have you known Mr. Jones?

A. About ten years.

Q. In what circumstances have you known him?

A. We've lived in the same neighborhood for ten years and I've worked with him at the same plant for the last five years.

Q. How often do you see him?

A. Several times a week, either at work or around town.

Q. Do you have an opinion as to his truthfulness?

A. Yes.

Q. What is that opinion?

A. In my opinion, he's an untruthful person.

Q. Do you know other people who know Mr. Jones?

A. Yes.

Q. Have you had occasion to discuss his reputation for truthfulness or untruthfulness in your neighborhood and at the plant where you both work?

A. Yes.

Q. Does Mr. Jones have a reputation for truthfulness or untruthfulness in your neighborhood and at the plant?

A. Yes.

Q. What is that reputation?

A. It's bad. He's known as an untruthful person.


Impeachment of Opinion and Reputation as to Truthfulness

When a party introduces testimony concerning his or her own truthfulness, impeachment may be conducted through limited inquiry on cross-examination into "relevant specific instances of conduct."(fn20) However, evidence of specific instances of conduct in these circumstances is generally collateral and may not be proven by extrinsic evidence.(fn21)

When cross-examining concerning specific incidents seemingly at odds with the witness' assessment of another party's truthfulness, the impeaching party may be required to show, out of the presence of the jury, that the acts forming the basis for the questions actually occurred.(fn22) If the attorney has the slightest doubt about the propriety of the question in a jury trial, he or she should raise it at a sidebar to prevent introducing unnecessary prejudice into the case.(fn23) The court should then determine whether there is a substantial basis for the cross-examination.(fn24)


Prior Felony Convictions

By statute,(fn25) in a civil case, the prior felony conviction of a witness may be utilized to impeach credibility where the witness was convicted within five years of the time he or she testifies. In a criminal case, the witness may be impeached by a felony conviction no matter how long ago the conviction was sustained.(fn26) The trial court does not have discretion to foreclose use of a witness' prior felony conviction for impeachment purposes.(fn27)

The issue of what constitutes a felony conviction for purposes...

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