Impeachment

• Library: Objections Guidebook (2022 Ed.)

Impeachment

Bias

Form of Objection

· Improper impeachment (irrelevant, as having insufficient probative force)

· Insufficient foundation (failure to confront a witness with prior declaration manifesting bias)

General Rule

· Evidence that a witness is interested in the result of the action, or is otherwise biased in favor or against a party, is admissible to impeach the witness’s credibility either by cross-examination or extrinsic evidence. Mo. Evidence Restated §616, pp. 305–11 (MoBar 6^th ed. 2021).

Examples and Legal Authority

· Extrinsic proof may be offered to demonstrate bias, but if the proof is a declaration, the witness must be confronted with it. See, e.g., State v. Mitchell, 622 S.W.2d 791, 796–97 (Mo. App. E.D. 1981); State v. Calmese, 541 S.W.2d 349 (Mo. App. E.D. 1976).

· A witness’s interest or bias and the witness’s relation to or feeling toward a party are never irrelevant matters. State v. Johnson, 700 S.W.2d 815, 817 (Mo. banc 1985). Trial court erred in preventing cross-examination of a witness to bring out hatred toward a former employee. Kansas City Assemblage Co. v. Lea, 405 S.W.2d 241, 245 (Mo. App. W.D. 1966). Cf. State v. Blurton, 484 S.W.3d 758, 775 (Mo. banc 2016) (trial court did not err in excluding evidence because the mother was not an “issue or personality” in the case).

· A criminal defendant has the right to cross-examine a prosecution witness about bias to protect
the defendant’s right to confront witnesses. Davis v. Alaska, 415 U.S. 308, 316–18 (1974). If cross-examination is limited on bias, it may violate defendant’s right to due process of law. Giglio v. United States, 405 U.S. 150, 154–55 (1972).

Character (Reputation; Specific Conduct)

Form of Objection

· Improper impeachment (matter relating to general moral character; extrinsic evidence of specific acts; specific acts too similar to the offense charged; specific acts not sufficiently probative of the lack of veracity).

· Insufficient foundation (as to basis for opinion as to reputation; as to relevancy of alleged conduct).

· Impeachment is a “fabrication” of prior specific instances of conduct.

General Rule

· The credibility of a witness may be attacked by:

- evidence of a reputation as to the witness’s character for truth and veracity; and

- an inquiry upon cross-examination about specific instances of conduct manifesting a lack of credibility, although the specific acts are generally more admissible if the witness on the stand is testifying to the witness’s character. If the witness on the stand is testifying to the reputation of another witness for truth and veracity, the cross-examination questions about specific instances of conduct must be asked in good faith, must be asked to test the accuracy of the witness’s testimony, and must be asked in the format of whether the witness “heard about” the particular conduct.

Examples and Legal Authority

· As to...