83 rd ANNUAL MEETING

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1 THE STATE BAR OF CALIFORNIA 83 rd ANNUAL MEETING Program #129 Impeachment Evidence 101: Did I Really Say That or Do That? Saturday, September 25, :15 PM - 5:15 PM Sponsored by Criminal Law Section The State Bar of California and the Office of Section Education and Meeting Services are approved State Bar of California MCLE providers. Points of view or opinions expressed in these pages are those of the speaker(s) and/or author(s). They have not been adopted or endorsed by the State Bar of California s Board of Governors and do not constitute the official position or policy of the State Bar of California. Nothing contained herein is intended to address any specific legal inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice regarding specific legal situations State Bar of California All Rights Reserved

2 The 83 rd Annual Meeting of The State Bar of California Present IMPEACHMENT EVIDENCE 101: Did I Really Say That or Do That? SPEAKERS/ASSISTANT BEVERLY BOURNE, Deputy Alternate Public Defender Los Angeles County Alternate Public Defender s Office TAMARA HALL, Deputy District Attorney Los Angeles County District Attorney s Office MICHAEL FERN, Deputy District Attorney Los Angeles County District Attorney s Office September 23-26, 2010 Monterey, California 1

3 I. THE LAW A) What is Impeachment Evidence? Impeachment Evidence 101 Caught in the Act Impeachment evidence is a dramatic trial technique in a lawyer s arsenal that involves attempts to diminish or attack a witness s credibility. (ft Nt- Trial Techniques, 7 th Edition, Thomas A. Mauet) Calif Evid Code Section 780: Credibility Generally o Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: Demeanor while testifying and the manner in which he testifies. The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. The extent of his opportunity to perceive any matter about which he testifies. His character for honesty or veracity or their opposites. The existence or nonexistence of bias, interest, or other motive. A statement previously made by him which is consistent with his testimony at the hearing. The existence or nonexistence or any fact testified to by him. His attitude toward the action in which he testifies or toward the giving of testimony. His admission or untruthfulness. B) Who May Impeach? Calif Evid Code Section 785: Parties May Attack Credibility o The Credibility of a witness may be attacked by any party, including the party calling him. o Voucher Rule No Longer Law Can & Should Impeach Own Witness ie. Criminal Street Gang prosecution ie. Turncoat witnesses 2

4 C) When to Impeach? Impeachment is a cross-examination technique that discredits the witness or his testimony. Dramatic Weapon to be Selective Used Overuse dilute effectiveness NOT Refresh Recollection Technique D) Impeachment Requirements: Must have Good Faith Must Raise on Cross-examination Must Prove up if Required E) Five Basic Impeachment Techniques (Ft Note: Understanding Evidence, 3 rd Edition, Paul C. Giannelli) 1) Bias Impeachment A witness s bias, interest, partiality/motive or corruption is always relevant for impeachment. a. Three categories i. Relationship between Witness and Parties Ie. Familial, employment, business, sexual, and/or hostile relationship 3

5 ii. Relationship between witness and litigation Ie. Civil law - financial interest in outcome, Criminal law- Prosecution witness offered immunity Alibi witness iii. Fear or Racial bias ie. Gang witness fear of retaliation b. Foundational Requirement bit by bit c. Extrinsic Evidence i. Denial or equivocate => Prove up witness/complete the impeachment ii. Admit => No EE 2) Sensory & Mental Defects Impeachment Sensory or Mental defect that affect a witness s capacity to a. Calif Evid Code Section 780 1) To perceive, 2) to recollect, or 3) to communicate about which he testifies. b. Extrinsic Evidence 1) Sensory & Mental defects effectively disclosed on cross. 2) Prove up Witness Discretion of Court, Calif Evid Code Section 352 c. Example- 3) Untruthful Character Impeachment, Calif Evid Code Sections 786, 787, 788 Generally, there are four Methods of Methods of Proving Untruthful Character: (a) Reputation Evidence- * Use to show a witness s untruthful character * Foundation Requirement- 4

6 Before Reputation Evidence is admissible Character witness must be acquainted with principal witness reputation in community Ie. Principal witness lives, works, attends school Cross- Can Exceed Witness s Knowledge o Ie Well, Did you know? (b) Opinion Evidence- * Use to show a witness s untruthful character * Foundation Requirement- Before Opinion Evidence is admissible Character witness must be personally familiar with principal witness Cross Can exceed witness s knowledge (c) Specific Acts/Prior Bad Act- Use to show a witness s untruthful character Requirements o Conduct reflects untruthful character Fraud, forgery, perjury, etc o Probative value outweighs danger of unfair prejudice o Good faith basis for the inquiry exist o Evidence is introduced in cross examination Not through Extrinsic Evidence (d) Prior Convictions- (1) Two types of Convictions a. Felony Conviction b. Any Conviction involves dishonesty or false statements i. Ie. Crimes of moral turpitude 5

7 (2) Whose Convictions a. The Accused: i. Discretionary: 1. Admissibility Not Automatic 2. EC 352: Probative Value of prior conviction substantially outweighs the unfair prejudicial effect to the accused if admissible ii. 5 Factors for Court to Consider: (ft note- United States vs. Alexander, 48 F.3d 1477, (9 th Circuit 1995) 1. Impeachment value of prior crime 2. Remoteness age of prior conviction 3. Similarity between the prior and charged offense 4. Importance of Accused testimony 5. Centrality of credibility at trial iii. Burden of Proof- 1. Prosecution 2. EC 402/ Motion in limine- avoid Mistrial b. Other Witnesses: i. Discretionary: 1. Admissibility Not Automatic 2. EC 352 Balance Test ii. 3 Factors for Court to Consider 1. Impeachment value of prior crime 2. Remoteness 3. Centrality of credibility at trial iii. Burden of Proof- 1. Prosecution 2. EC 402/Motion in limine- avoid Mistrial c. Juvenile Adjudications: i. Juvenile adjudications are NOT admissible for impeachment - see People v. Renko 44 Cal.App.4 th 620 (1996) ii. Exception: Open door Some jurisdictions - see People v. Harris (Ill, 2008) 901 N.E.2d 367 (3) Extrinsic Evidence & Scope a. Witness denial or equivocates => Prove up witness b. Witness Admits => No prove up 6

8 c. Scope of Convictioni. Nature of crime ii. Sentence/punishment iii. Date of conviction iv. CANNOT introduce underlying facts v. Drawing the sting 4) Contradictory Facts/Specific Contradictions a. Impeachment by contradiction b. Common sense technique/overlap with sensory mental defect impeachment c. Turns on form of question & response: i. Form of question suggests contradictory fact ii. Ie- You were drinking that night, correct? 1. Rt- perception affected by mental state d. Denial => Prove up/extrinsic Evidence depend on contradictory fact is collateral or noncollateral (important) i. Collateral no/ EC 352: confuse jury/mini trial ii. Noncollateral- Discretionary 5) Prior Inconsistent Statements Calif Evid Code Sec 769, 770, 780 Any prior statement, whether oral, taped, or written and whether sworn or unsworn, may be used to impeach. Must be the witness s statement, not third party Most used Impeachment Technique Technique: 3C s & Simplicity o Confirm- Commit the witness to the fact asserted on direct Note use witness s actual answer given on direct o Credit- Credit the prior statement/ build up the importance of the impeachment statement No disclosure of impeaching statement required For both oral and writing statements. EC 769 7

9 o Confront Confront the witness with the inconsistent statement Different ways of confrontation Use actual words of the of the impeaching statement Witness must be given opportunity to explain/deny statement o Simplicity- essential for jury to understand contrast Breakdown long statements, paragraphs or lengthy sentences Each impeaching statement should be Raised separately and Contradicted separately Types of statements o Prior Testimony- preliminary hearings, depositions, o o Written statements written by witness or narration & signed by witness o Oral statements made to police or private investigator Note- Cannot impeach with report itself/not witness report Extrinsic Evidence Must call witness to complete the impeachment Failure to prove up- testimony stricken! o Omissions- Police officers & reports he told you that? Where is that assertion in report? Special problems o Evasive witnesses- gang cases o Argumentative witnesses 8

10 State bar lecture Monterey, CA 2010 By Beverly Bourne, Defense Attorney, Alternate Public Defenders office Impeachment: (Layperson definition via Webster s dictionary) - to cast doubt on, to challenge the credibility or validity of Practice tip: Review the pertinent jury instructions on impeachment and credibility before trial and these instructions can be used as guideposts for your investigations, for your posture of the case. For example, if you believe a witness might be mistaken about what a person was wearing or the car they drove, you should have an investigation done to have the witness interviewed to pin them down to their discrepancy and then this same witness can be impeached with this statement. All witnesses can be impeached via their credibility see EC 780, see also CALCRIM (if criminal case)..credibility determinations: The demeanor of the witness: Does the witness appear to have an axe to grind just by their demeanor? Are they constantly looking at the defendant, respondent with disdain? Are they sneering, or just the opposite, they seem to be looking lovingly at the defendant, respondent, these subtle observations can be used to impeach the witness. The witnesses capacity to perceive, recollect: By your or opposing counsel s line of questioning, you will be able to determine if there are issues with the witness in this area. Practice tip- you should through your investigation already know if most witnesses have an area to exploit, attack in this regard. Either your investigation would have provided you with details about what actually exists that supports the witnesses information or your information/investigation supports what the witness testified to or told the police or shared in a deposition. Honest witness? Fabrication? Was the witness s testimony fabricated? If so their credibility is called into question. See Evid Code section 791.

11 Does the witness have anything in their background that indicates that they are or have the potential to be dishonest, for example moral turpitude crimes, convictions. Is there the existence of motive, bias? Evid code section 780. Prior statements: consistent or inconsistent with their testimony? If consistent then this will bolster their credibility, if inconsistent- could negatively affect their credibility. Either party can attack credibility, see EC 785. Even the party calling the witness can impeach their own witness! Should review these sections before start of trial and use as a guidepost for every witness And Remember to argue these points in your closing. Impeachment involving visual, tangible issues: The witness identifies someone but you learn that they have visual impairment issues themselves or their vantage point was obstructed in some way). Or- For example co- defendant gang pictures off of Face book, (e.g. Witness denied being in a gang but there are pictures of witness flashing gang signs.) How do you attack this impeachment? The defense would need to bolster the credibility of the defendant though testimony of the defendant to show the lack of intent behind the photo s and other supporting information that would chip away at the damage of the photos. The prosecution would want to show through the gang detective that the Face book account is in the defendant s name, the pictures were authenticated and that the gang detective has knowledge of the signs mean based upon their knowledge of gangs. Mental, emotional impeachment- you learn that they have a challenge in this area and either had a motive to lie (i.e. victim made a police complaint and then the victim kept calling the defendant and leaving incriminating, threatening messages.) This can be supported by either conduct, proof of the witnesses actions, prior convictions, bias, and motive to lie.

12 To surprise or not to surprise? Can t not be underestimated, can be effective. Can impeach with felony convictions, see EC 788 Practice tip: It s important to be aware of the crimes constitute moral turpitude crimes and what convictions a witness can be impeached with. Evid code section 403. Can impeach with- Moral Turpitude.Can impeach witness with convictions, (must know which crimes/convictions constitute moral turpitude convictions). Good resource for a list of moral turpitude convictions is the Criminal Law Procedure and Practice handbook, sections See also crimes that do not constitute moral turpitude (to avoid mistakenly questioning in these areas.) Important: consider EC 352, Trial Court must exercise discretion re: admissibility. 402 issues that you may want to raise. (Decide while preparing for trial which actions, priors, you may want to keep out /or introduce to impeach. Misdemeanor convictions: Must be moral turpitude convictions, not too remote, and only facts of the crime are admissible, not the conviction. Reviewing the list of Moral Turpitude crimes is invaluable! What if the impeachment is a prior conviction and the prosecutor questions the witness first about the conviction? -You can still question, esp. if there are aspects of the prior not addressed by the prosecutor and for emphasis. What if it s your witness on the stand with the prior conviction how do you handle? -Subtlety is king! But you can t avoid it and should not ignore it because your witness will be hammered by it on cross examination! Address it head on.

13 With limits of via 402 issues raised, rulings on misdemeanors vs. felony impeachment how do you still effectively address the misd in front of the jury? Felony convictions, do you still put the witness, client on the stand? How to address this issue? If your witness, client has a bad record and/or the priors are for similar conduct as alleged in the trial then your witness/client must have compelling evidence to share and you must ask yourself can the client/witness convey this evidence to the jury in a compelling manner? Can the evidence come in another way, via another more sanitized witness? Can you get the evidence in through the detective or expert witness? Was testing done on an important piece of evidence? Then consider calling the lab tech, or the Criminalist instead of the impeachable witness. Impeaching the dead guy (decedent): Yes, you can do this especially when issues are raised at trial that support your defense, i.e. self defense, belief in need for self defense, decedent s violent past proven via attempted murder conviction Opinion and Expert testimony: Can you impeach someone s lay opinion? Answer is Yes if you have the arsenal in your possession that disputes what the witness testified too. For example: The witness testified that in their opinion the lighting in the area was good and so that could clearly see what was happening. But based upon your investigation, you have discovered that the lighting was malfunctioning and it was actually very dark and therefore the witnesses opinion has been disputed What is also great about this is that with the witnesses opinion being discredited on this one point you can argue that their entire testimony is now called into question! If you they were mistaken about this one point, then Practice tip: This is where the jury instructions on witness credibility are crucial. Before your closing argument you want to have these ingrained in your mind so that you can make an effective argument in front to the jury! Impeaching the Expert Witness: Your homework has to be done for this, you need to know the basis for the expert s opinion. If your investigation or research shows that the experts opinion is not based upon current information, or

14 the expert is testifying to facts outside of his/her field of study, or you have keenly become aware of the current research, information you can use this information to attack the witnesses credibility thus impeaching them with their own words! Practice tip: You really have to do your homework here and be sure of your facts so that you do not lose your credibility in front of the jury. Commit Evid Code section 780 to memory and let it be your guide for your investigations, research, and case preparation and keep it in mind when you are questioning a witness and especially during closing argument. Can be used to bolster a witness or to show how the witness was impeached. 402 issues: Convictions-felony and misdemeanors need to be brought before the judge in your 402 hearing. Consistent and inconsistent statements- need to know the parameters of what you can and cannot introduce. Opinion testimony: Is the opinion based upon common knowledge, see Evidence Code 800. Expert Testimony: Have you received all of the documents, information that the expert relied upon? Credibility determinations, see Evid Code section 312. Impeachment, See Evid Code 785 but also are you considering character evidence? If so, you should address these issues in a 402 hearing first. How the Criminal Law section can help you! Plus, other good resources

15 Speaker Biography Beverly Bourne Graduated from Pepperdine Law School. While at Pepperdine finalist in their televised moot court competition and chosen best oralist of the competition; the bench for the competition consisted of United States Supreme Court Justice Byron White, California Supreme Court Chief Justice Malcolm Lucas and Ninth Circuit Court of Appeals Justice Stephen Trotter. Published legal author, while a law student; Marshall Law Journal. From 1996 to the present- Criminal defense practice, presently work for the Los Angeles County Alternate Public Defender s office. Have tried over 120 jury trials, including murders, third strike cases, child abuse and gang crimes. Member of the California State Bar Criminal Law section, Executive Committee. Have lectured on various legal topics for the State Bar. Published author; law journal, part time writer (non fiction).

16 Tamara Hall Tamara Hall is a former Deputy District Attorney with the Los Angeles County District Attorney s Office. During her career, she has tried 88 jury trials to verdict. These cases ranged from simple litigation to complex litigation in both line and specialized operations. While assigned to the Automobile Insurance Fraud Division, Ms. Hall vertically prosecuted the infamous People v. Bo Stefan Eriksson, Red Ferrari case. Ms. Hall was recently assigned to the District Attorney s Hardcore Gang Division, where she vertically prosecuted complex gang-related murders, conspiracy to commit murders, and attempted murders. Ms. Hall is also an Adjunct Associate Professor of Law at Southwestern Law School, where she teaches Trial Advocacy, and she is actively involved in community outreach programs for at-risk adolescents. On July 21, 2010, Ms. Hall was appointed to the Los Angeles Superior Court.

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