§607 Impeachment

• Library: Evidence Restated Deskbook (2021 Ed.)

§607 Impeachment

A. Purpose and methods of impeachment. Impeachment provides a tool to test a witness's perception, credibility, and truthfulness, which is essential, because a jury is free to believe any, all, or none of a witness's testimony. A party impeaches a witness to discredit the witness in the eyes of the fact-finder.

B. Most common methods of impeachment. The most commonly recognized methods of impeaching a witness include admission of evidence of:

1. the witness's incapacity or problems in the witness's ability to perceive or memory;

2. prior convictions;

3. the witness's bias, interest, or prejudice;

4. prior inconsistent statements of the witness;

5. the witness's character for truthfulness and veracity; and

6. contradiction.

C. Who may impeach

1. General rule. A party may not impeach the party's own witness.

2. Exceptions. A party may impeach the party's own witness:

a. in a civil or criminal case when the party is surprised by harmful testimony of the witness;

b. in a civil case with a prior inconsistent statement;

c. in a criminal case with a prior inconsistent statement; or

d. in a civil case with a conviction of a crime when the witness is an adverse party.

3. Exclusions. The general rule does not prevent:

a. a party from anticipating possible bases for impeachment and exposing them on direct examination, such as:

(i) revealing inconsistencies appearing in prior statements of the witness;

(ii) revealing plea agreements or promises made to a witness by the State; or

(iii) in the case of a defendant in a criminal case, testimony on direct about the defendant's own prior criminal convictions; or

b. a party from offering evidence that contradicts a witness's testimony.

Notes

A. Purpose and methods of impeachment

The purpose and methods authorized and most commonly used for the impeachment of a witness were presented and discussed in the Supreme Court of Missouri's opinion in Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010). An outline of its presentation, omitting quotation marks and internal citations, intended to serve as a practice aid, follows:

Impeachment Outline Practice Aid

[The topics are covered with more specificity in this deskbook.]

A. Purpose

Impeachment provides a tool to test a witness's perception, credibility, and truthfulness, which is essential because a jury is free to believe any, all, or none of a witness's testimony. A party impeaches a witness to discredit the witness in the eyes of the fact-finder.

B. Methods

The most commonly recognized methods of impeaching a witness include admission of evidence of:

1. the witness's incapacity or problems in the witness's ability to perceive or memory;

2. prior convictions;

3. the witness's bias, interest, or prejudice;

4. prior inconsistent statements of the witness;

5. the witness's character for truthfulness and veracity; and

6. contradiction.

C. Specific procedures and rules regarding cross-examination and the admissibility of extrinsic evidence for each method of impeachment

1. Cross-examination. Cross-examination of a witness on the stand for the purpose of impeaching that witness through each of the methods has been permitted in Missouri, subject to the court's discretion in limiting or, in rare instances, precluding the evidence entirely so as to avoid undue prejudice:

a. The witness's incapacity or problems in the witness's ability to perceive or memory. For example, cross-examination regarding drug use and intoxication is allowed as it goes to a witness's very capacity and competence as a witness to perceive.

b. Prior convictions. Cross-examination about prior convictions is allowed, even though the prior convictions do not involve similar facts, because when persons choose to testify, they place their credibility in issue, and they may be impeached by prior criminal convictions. Section 491.050, RSMo 2016.

c. Prior inconsistent statements. Cross-examination about a prior inconsistent statement is allowed provided that the prior statement is about a material issue. The cases broadly define materiality to include statements affecting credibility.

d. Interest or bias. Cross-examination regarding the interest or bias of a witness and the witness's relation to or feeling toward a party, which are never irrelevant matters, is allowed.

e. Character for truth and veracity. Cross-examination regarding character for truth and veracity is allowed provided that it is directed toward the ultimate issue of a witness's credibility. Thus, a witness may not be impeached by evidence that the witness's "general moral character is bad" or "general reputation for morality" is bad. Therefore, this form of impeachment must be confined to the witness's character for truthfulness and veracity.

Limitations on cross-examination impeachment of character for truth and veracity depend on whether the one whose character for truth and veracity being impeached is (1) the person on the stand or (2) someone else about whom the person on the stand is being questioned:

(1) The person on the stand. Cross-examination is allowed regarding specific instances of conduct that speak to that person's own character for truth and veracity, even when the issue inquired about is not material to the substantive issues in the case.

(2) Someone else. This someone else is a different witness in the case, about whose character for truth and veracity the person on the stand is being called to testify. The person on the stand may be asked on direct only about the other person's general reputation in the community for truth and veracity. Only once the witness has testified to the other's reputation may the witness be cross-examined in good faith about specific instances of conduct, and even then only as a means of testing the accuracy of the witness's testimony about the other's reputation for truthfulness, by asking whether the person on the stand has "heard about" a particular matter.

f. Contradiction. Evidence contradicting a witness's testimony by its nature is extrinsic evidence.

2. Use of extrinsic evidence. Subject to the trial court's discretion to avoid undue prejudice by not admitting extrinsic evidence if more prejudicial than probative:

a. Allowed. Regardless of whether the subject of the extrinsic evidence is independently material to the case, parties are permitted to introduce extrinsic evidence to impeach a witness by showing:

(1) incapacity or problems in the witness's ability to perceive or memory;

(2) prior convictions; or

(3) bias, prejudice, or interest.

b. Limited. Extrinsic evidence is limited when the form of impeachment concerns the witness's:

(1) prior inconsistent statements; or

(2) character for truth and veracity.

Parties may introduce extrinsic evidence of a prior inconsistent statement when:

(1) the witness denies the prior statement; and

(2) the subject of the prior inconsistent statement is material to the issues rather than collateral.

Parties may introduce extrinsic evidence of specific instances of conduct probative of truth and veracity when:

(1) the witness denies the specific instance of conduct; and

(2) the admission of the extrinsic evidence is more probative than prejudicial.

c. Contradiction. Although not technically called impeachment, this evidence also inherently affects credibility, undermining confidence in the reliability of a witness's testimony. It ordinarily is not permitted as to a collateral matter.

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