§616 Impeachment by Evidence of Bias

• Library: Evidence Restated Deskbook (2021 Ed.)

§616 Impeachment by Evidence of Bias

A. General rule. Evidence that a witness is interested in the result of the action or is otherwise biased in favor of or against any party is admissible for the purpose of impeaching the credibility of the witness.

B. Form of proof of bias. The existence and extent of any bias of a witness may be elicited in cross-examination or by introduction of extrinsic evidence except that extrinsic evidence of bias manifested from a prior statement of the witness may be introduced only after laying a foundation by asking the witness whether the statement was made.

Notes

A. General rule

Cases discussing bias, interest, or prejudice are too numerous to be presented, and the circumstances from which an inference of bias may arise are varied.

The term "bias" includes "'all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally.'" [State v.] Hedrick, 797 S.W.2d [823,] 825 [(Mo. App. W.D. 1990)] (quoting 3A Wigmore, Evidence §§ 945, 949 (Chadbourn rev. 1970)). Evidence showing bias includes circumstances of the witness's situation that make it probable that he or she has "'partiality of emotion for one party's cause.'" Id. (quoting 3A Wigmore, Evidence §§ 945, 949). Such circumstances should have a "'clearly apparent force'" on the witness "'as tested by [the] experience of human nature.'" Id. (quoting 3A Wigmore, Evidence §§ 945, 949). Common examples include "'those involving some intimate family relationship to one of the parties by blood or marriage . . . or some such relationship to a person, other than a party, who is involved on one or the other side of the litigation, or is otherwise prejudiced for or against one of the parties.'" Id. at 826. (quoting 3A Wigmore, Evidence §§ 945, 949).

State v. J.L.S., 259 S.W.3d 39, 44 (Mo. App. W.D. 2008). "The only question is whether from the conduct or language, a palpable and more or less fixed hostility (to one party) or sympathy (for the other) is inferable." State v. Mooney, 714 S.W.2d 216, 220 (Mo. App. E.D. 1986) (citing 3A John H. Wigmore, Wigmore on Evidence § 950 (Chadbourn rev. 1970)). Some common instances follow:

· Animosity toward a party or witness

- State v. Ofield, 635 S.W.2d 73, 75 (Mo. App. W.D. 1982) (it was error to not allow a defendant to cross-examine a witness about her having asked the defendant to forge her husband's signature on an insurance application and her anger at his refusal to do so or to cross-examine about his refusal of her request to give employment to her son and her resentment of his refusal)

- State v. Allison, 326 S.W.3d 81 (Mo. App. W.D. 2010) (it was proper to allow cross-examination of witnesses for the defendant who rebutted testimony of a detective to show their dislike of the detective and prior drug sales to the detective to show motivation for their bias)

- State v. Richardson, 886 S.W.2d 175, 178 (Mo. App. E.D. 1994) (it was proper to allow the State to inquire about a possible bias of the witness against the prosecutor and the State)

- Kansas City Assemblage Co. v. Lea, 405 S.W.2d 241, 245 (Mo. App. W.D. 1966) (error was found in preventing cross-examination of a witness to bring out hatred toward a former employee)

· Relationships

- Moon v. Hy-Vee, Inc., 351 S.W.3d 279, 284 (Mo. App. W.D. 2011) (it is proper to ask an expert witness on cross-examination how frequently that witness appears on behalf of the defendant and whether that witness had testified for the same defense attorneys in other cases—the questions are a proper attempt to show bias)

- State v. Wren, 317 S.W.3d 111, 124 (Mo. App. E.D. 2010) (the trial court did not abuse discretion in overruling an objection to the cross-examination of a defense witness about his gang affiliation with the defendant because it tended to demonstrate the witness's bias in providing a belated alibi for the defendant)

- Thornton v. Vonallmon, 456 S.W.2d 795, 798 (Mo. App. S.D. 1970) (the trial court committed error in not allowing cross-examination of a witness for the plaintiff to reveal the relationship that existed between her and the plaintiff, including a reasonable inquiry into their sexual relations—"Some of the relationships which may be shown to indicate the favorable bias or partiality of a witness toward the party for whom he testifies are that the witness is a member of the party's family,

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