§22.16 KEY POINTS

• Jurisdiction: United States

§22.16. KEY POINTS

Credibility may be viewed in three stages: (1) bolstering, (2) impeachment, and (3) rehabilitation. Impeachment involves attempts to diminish or attack a witness's credibility. There are also rules regulating attempts to support credibility. For example, as a general matter, a witness's credibility may not be bolstered (supported) prior to impeachment. Under certain circumstances a witness's credibility may be rehabilitated (supported) after impeachment. Thus, bolstering and rehabilitation both involve efforts to support credibility; the difference is one of timing.

Bolstering

Generally, a witness's credibility may not be bolstered or supported with evidence relevant only for that purpose, until after impeachment. Consumption of time and confusion of issues are the principal reasons for this rule. There are two prominent examples: (1) Evidence of a witness's truthful character is not admissible in the absence of an attack on that character; (2) Prior consistent statements are inadmissible before a witness's credibility is attacked.

There are three common exceptions to the bolstering prohibition: (1) pretrial identifications (e.g., lineups), (2) fresh complaints in rape cases, and (3) cooperation agreements.

Voucher Rule

At common law, a party could not impeach its own witnesses. This was known as the voucher rule and was based on the theory that, when a party calls a witness, that party vouches for the witness's veracity — i.e., a party cannot hold the witness out as worthy of belief when the testimony is favorable and impeach credibility when it is adverse. Rule 607 abolishes the "voucher rule." The rationale for the rule was never persuasive because the firsthand knowledge rule requires percipient witnesses, and thus parties often have no choice concerning which witnesses to call.

The abolition of the voucher rule created one problem, which concerns impeachment with prior inconsistent statements: Rule 607 could be employed to circumvent the hearsay rule. Some federal courts address this problem by focusing on whether the proffer is a subterfuge to get hearsay before the jury, while other courts apply Rule 403 in this context in determining admissibility.

Methods of Impeachment

Numerous factors may be considered in evaluating credibility, including a witness's demeanor while testifying. There are, however, five principal methods of impeachment: (1) bias or interest, (2) sensory or mental defects, (3) untruthful character, which includes impeachment by reputation, opinion, prior convictions, and prior untruthful acts, (4) specific contradiction, and (5) prior inconsistent statements (self-contradiction). Moreover, Rule 610 prohibits the impeachment use of a witness's religious beliefs, and a special impeachment rule on learned treatises applies to experts. Fed. R. Evid. 803(18).

Bias

Although there is no rule on bias in the Federal Rules,²⁰⁶ in United States v. Abel the Supreme Court held that impeachment of a witness for bias was proper. Most jurisdictions require that a foundation be laid on cross-examination before extrinsic evidence of bias is admissible; some courts have indicated that this is the federal position. At common law, bias was not considered a "collateral matter," and thus extrinsic evidence of bias was always admissible. However, an Advisory Committee Note (dealing with another type of...