Section 10.2 Impeachment

• Library: Evidence 2017

II. (§10.2) Impeachment

Impeachment is 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. See State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999). In Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010) (quoting Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo. 1970)), the Court recognized the long-standing purpose of impeachment set forth in Sandy Ford Ranch, which states:

It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.

The Court in Mitchell further recognized the five most common methods of impeaching a witness, which are:

1. evidence showing the witness’s incapacity or problems in perception or memory;

2. evidence of prior convictions;

3. evidence of the witness’s bias, interest, or prejudice;

4. prior inconsistent statements of the witness; and

5. evidence of the witness’s character for truthfulness and veracity.

Mitchell, 313 S.W.3d at 675.

In some circumstances, even the prior bad acts or the character of a witness may be used for impeachment purposes. Impeachment is such an important part of the judicial system and the ability to judge credibility that a witness may even be recalled for the sole purpose of being impeached. See State v. Taylor, 486 S.W.2d 239, 243–44 (Mo. 1972). But, as with many issues concerning impeachment, whether a party is allowed to recall the witness for impeachment is within the discretion of the trial court. Id.

Historically, impeaching a witness using prior instances of specific conduct was limited to the reputation of the witness for truth and veracity so as to avoid mini trials on the prior conduct. See State v. Wolfe, 13 S.W.3d 248, 274 (Mo. banc 2000) (“Trial courts are given discretion in determining the scope of cross-examination, principally so that the trial court can keep the examination inquiry focused on relevant issues and to avoid having trials within trials on past conduct that would seem to be collateral.”) But Missouri law distinguishes between impeaching a witness as to the character of a different witness in the case and impeaching the character of the witness on the stand. Mitchell, 313 S.W.3d at 677–78.

When a person, regardless of whether a party, is being questioned on the witness stand, then long-standing Missouri law holds that the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity, even where the issue inquired about is not material to the substantive issues in the case.

Mitchell, 313 S.W.3d at 677.

With respect to witnesses being called to impeach the character of a different witness in the case, then the inquiry should be limited to the other person’s general reputation in the community for truth and veracity. Id. at 677–78 (citing Haynam v. Laclede Elec. Coop., Inc., 827 S.W.2d 200, 205 (Mo. banc 1992), and State v. Trimble, 638 S.W.2d 726, 735 (Mo. banc 1982)).

Trial courts are afforded broad discretion in determining the permissible...