Chapter 9 - § 9.6 • REHABILITATION AFTER IMPEACHMENT BY CONTRADICTION

• Jurisdiction: Colorado

§ 9.6 • REHABILITATION AFTER IMPEACHMENT BY CONTRADICTION

§ 9.6.1—Introduction and Foundation

Impeachment by contradiction consists of counterproof that something said by the witness is not accurate. Contradiction may be achieved, as pertinent here, through the "use of extrinsic evidence." People v. Wilson, 356 P.3d 956, 965 (Colo. App. 2014). In general, impeachment with extrinsic evidence on collateral issues is disfavored. People ex rel. K.N., 977 P.2d 868, 876 (Colo. 1999). A collateral matter is one which has "no independent significance and thus would not be independently provable regardless of the impeachment." Id. (quotations and citations omitted).

In this straightforward example, the testimony of an impeaching witness (IW) is offered to contradict the proponent's witness (PW) on an issue of substance in the trial, i.e., of consequence to the determination of the action. The subsequent rehabilitation is offered to rehabilitate the credibility of PW on the substantive issue, but is not itself substantive evidence. In the following series of examples taken from a hypothetical intersection collision, there was only one piece of evidence that the light was red — PW's original testimony.

PLAINTIFF ATTY: What color was the light?

PW: Red.

* * *

DEFENSE ATTORNEY: What color was the light?

IW: Green.

PW is now impeached on a material question — the color of the light. Some form of evidence is then offered to restore the credibility of the proponent's witness. The key foundational element to rehabilitate a proponent's witness here...