Restricting Proof of Bias Parties are entitled to reasonable latitude in showing the bias of a witness Latitude extends to bias impeachment via cross or extrinsic evidence Undue restriction on proving bias may constitute error In criminal cases, the accused is entitled to impeach prosecution witnesses for bias Accused can develop the relevant points sufficient to let the fact finder make an informed evaluation on witness credibility Judges have discretion to limit attempts to establish bias in order to prevent Harassment; confusion of issues; waste of time; unfair prejudice Impeachment by Impairment (Mental or Sensory Defect) Introduction Involves showing a defect in sensory or mental capacity if it… Affected ability of the witness to observe and understand at the time of events; or Affects her memory and ability to recount the events Examples include bad eyesight, poor hearing, faulty memory, etc… Impaired capacity usually does not make a person incompetent as a witness, but impairments are relevant in assessing the credibility of the witness and testimony CL addresses this method of impeachment, but it is still commonly used/accepted US v. Abel: Approved impeachment by bias in federal courts even though it is not mentioned in the FRE; bias is relevant, and FRE do not end w/ CL tradition Under reasoning in Abel, any challenge to impeachment via impairment would be rejected as well Forms of Proof Attacking party can inquire on cross about sensory or mental defects that affect a witness and bear on his testimony Attacking party may also call other witnesses to testify to such points (rare) The calling party may also bring out sensory or mental impairments on direct Try to show that despite these problems, witness should still be believed Alcohol or Drug Use Attacking party may go into the matter of intoxication or drug influence at the time of the events about which the witness testifies If the witness is under the influence of drugs or alcohol at time of trial, this matter can be explored as well Generally, evidence of drug addiction or alcoholism is excluded unless it bears on the ability of the witness to perceive or recall the events at issue Mental Illness or Disability Impeaching a Witness: Attacking party may show by cross or extrinsic evidence that the witness suffers (or once did) from a mental illness that could affect her ability to perceive or recall events at issue Evidence of an unrelated mental illness and medical records indicating treatment for relevant impairment are excluded for privacy reasons
Restricting Proof of Bias Parties are entitled to reasonable latitude in showing the bias of a witness Latitude extends to bias impeachment via cross or extrinsic evidence Undue restriction on proving bias may constitute error In criminal cases, the accused is entitled to impeach prosecution witnesses for bias Accused can develop the relevant points sufficient to let the fact finder make an informed evaluation on witness credibility Judges have discretion to limit attempts to establish bias in order to prevent Harassment; confusion of issues; waste of time; unfair prejudice Impeachment by Impairment (Mental or Sensory Defect) Introduction Involves showing a defect in sensory or mental capacity if it… Affected ability of the witness to observe and understand at the time of events; or Affects her memory and ability to recount the events Examples include bad eyesight, poor hearing, faulty memory, etc… Impaired capacity usually does not make a person incompetent as a witness, but impairments are relevant in assessing the credibility of the witness and testimony CL addresses this method of impeachment, but it is still commonly used/accepted US v. Abel: Approved impeachment by bias in federal courts even though it is not mentioned in the FRE; bias is relevant, and FRE do not end w/ CL tradition Under reasoning in Abel, any challenge to impeachment via impairment would be rejected as well Forms of Proof Attacking party can inquire on cross about sensory or mental defects that affect a witness and bear on his testimony Attacking party may also call other witnesses to testify to such points (rare) The calling party may also bring out sensory or mental impairments on direct Try to show that despite these problems, witness should still be believed Alcohol or Drug Use Attacking party may go into the matter of intoxication or drug influence at the time of the events about which the witness testifies If the witness is under the influence of drugs or alcohol at time of trial, this matter can be explored as well Generally, evidence of drug addiction or alcoholism is excluded unless it bears on the ability of the witness to perceive or recall the events at issue Mental Illness or Disability Impeaching a Witness: Attacking party may show by cross or extrinsic evidence that the witness suffers (or once did) from a mental illness that could affect her ability to perceive or recall events at issue Evidence of an unrelated mental illness and medical records indicating treatment for relevant impairment are excluded for privacy reasons
Evidence_Orenstein_unknown-semester.docx