• "Impeachment" is defined as "[t]he act of discrediting a witness, as by catching the witness in a lie or by demonstrating that the witness has been convicted of a criminal offense."
Indiana Evidence Rule 607: Any party may impeach a witness
• Any party, including the party calling the witness, may attack the credibility of a witness.
• The Indiana Evidence Rules provide that the credibility of a witness may be attacked by any party. Evid. R. 607; Ingram v. State, 715 N.E.2d 405, 407 (Ind.1999). For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible. Ind. Evidence Rule 616; Ingram, 715 N.E.2d at 407.
By the same token, “[a] witness may be rehabilitated on redirect examination if he was discredited by his testimony on cross-examination.” 6 Terrance L. Smith & Adrian P. Smith, Indiana Practice: Trial Handbook for Indiana Lawyers § 24:4 (2009). “[W]hen there has been evidence of impeaching facts, the witness's proponent may present contradictory evidence disproving the alleged impeaching facts.”
• The credibility of witnesses is for the trial court to determine.
• [E]vidence admitted only for impeachment may not be used as substantive evidence.
• [On cross-examination in murder trial of state's eyewitness, defense counsel was properly precluded from stating, “your mother believes that you are a stone cold liar,” as statement was not allowable as an inquiry into eyewitness's reputation for truthfulness, which required defendant to call a witness, but rather was a statement of fact and an attempt by counsel to testify in the guise of asking questions. Rules of Evid., Rules 607, 608(a).]
Indiana Evidence Rule 608: A witness’s character for truthfulness or untruthfulness
(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of another witness whose character the witness being cross-examined has testified about.
More on Indiana Evidence Rule 608(a): Reputation or opinion evidence
• The Indiana rules of evidence allow impeachment of a witness only by evidence of reputation or character. The rule prohibits impeachment of a witness by evidence of prior bad acts unless the act is an “infamous” crime or a crime probative of credibility.
• The reason for the “Bad Acts” rule is to prevent the jury from inferring that the witness must be a liar merely because he has done bad things. In other words, the rule seeks to prevent unfair prejudice to a witness where the evidence does not make it any more likely than not that he is untruthful.
Note on Ashton crimes [more information under IRE 609]
• In Indiana, there are nine infamous crimes which may be used to impeach a witness. These are: treason, murder, rape, arson, burglary, robbery, kidnapping, forgery, and perjury. Ashton, supra, 279 N.E.2d at 213. Fed.R.Evid. 609(a), recently adopted effective January 1, 1994, as Ind.Rule 609(a), includes the crime of criminal confinement.
[The Indiana Supreme Court draws a distinction between opinion/reputation evidence and evidence of specific instances of conduct]:
• [Defendant] attempted to delve into specific instances of [Witness’s] conduct, namely, whether [Witness] had lied to his mother on prior occasions; Rule 608(b) specifically prohibits inquiring into or proving specific instances by extrinsic evidence.
• It is true this Court has held that the evidence rule preventing evidence of specific acts of untruthfulness must yield to a defendant's Sixth Amendment right of confrontation and right to present a full defense. See State v. Walton, 715 N.E.2d 824, 827 (Ind.1999). However, the Court limited this exception to very narrow circumstances—specifically prior false accusations of rape—that do not apply here.
Legal standard for admissibility under Indiana Evidence Rule 608(a)
• Like most jurisdictions, Indiana requires that an impeaching witness speak only about the impeachee's reputation within the ‘community’ at the time of the impeachee's testimony or within a reasonable time prior to trial.
• To be admissible, the evidence concerning a witness' reputation for truthfulness “must embody the collective judgment of the community and be derived from a group whose size constitutes an indicium of inherent reliability.” Evidence of reputation is considered reliable only if the community holding the opinion of reputation is sufficiently large. Id. If the group is too insular, its opinion of the witness' reputation for truthfulness may not be reliable because it may have been formed with the same set of biases.
While it may be that a child's community is smaller than an adult's community, the child's community must be sufficiently numerous for the opinion of reputation to be reliable, and the members of that community must have had sufficient contacts with the child to justify an opinion of reputation.
• [Trial Court has discretion to determine whether the ‘community’ at issue is large enough for rule 608. It is conceivable that a single family could be determined to be large enough to meet the requirements.]
• [Trial court did not err in excluding reputation testimony offered by a witness for the Defense, under Rule 608(a), where the ‘community’ was a group of 8-11 people, and 3-4 of the ‘community’ members were family members of the child witness]
• As to place of reputation, the traditional inquiry is as to general reputation for veracity “in the community where he lives.” The object of this limitation of place is obviously to restrict evidence of repute, to reputation among the people who know him best.
• [E]vidence of reputation for veracity should not necessarily be limited to that within the person's community of residence, but should include any community or society in which he or she has a well-known or established reputation. That reputation must be a general reputation, held by an identifiable group of people who have an adequate basis upon which to form an opinion, and the witness testifying to reputation must have sufficient contact with that community or society to qualify as knowledgeable of the general reputation of the person whose character is attacked or supported.
• We note that the nature of the community for purposes of 608(a) is not limited to the community at large. Some groups may be sufficiently large to provide the requisite reliability, while others may not. There may be cases where the community of one's family is deemed to be of sufficient size to provide the requisite reliability for an impeaching witness's testimony. However, we are not the proper arbiter of such decisions in the first instance. Trial courts are in a far better position to decide whether the foundational requirements for the admissibility of impeachment evidence have been met given the discretion they possess concerning evidentiary matters, the gatekeeping role they serve, and their unique ability to judge the credibility of the witnesses.
• We conclude that evidence of reputation for veracity should not necessarily be limited to that within the person's community of residence, but should include any community or society in which he or she has a well-known or established reputation. That reputation must be a general reputation, held by an identifiable group of people who have an adequate basis upon which to form an opinion, and the witness testifying to reputation must have sufficient contact with that community or society to qualify as knowledgeable of the general reputation of the person whose character is attacked or supported.
More on Indiana Evidence Rule 608(b): Specific instances of conduct
• [Defendant sought to impeach a witness/victim in a D.V. case about a prior incident where witness/victim alleged spousal abuse and then recanted. Trial court did not allow the testimony, because evidence of specific instances of conduct – used to impeach the credibility of a witness – is forbidden by Rule 608(b)]
• [Defendant tried to introduce evidence at trial that the child who claimed that he had molested her had made a false accusation of misconduct on another occasion. The trial court found that the evidence was inadmissible under Evid. R. 608(b) as evidence of a specific instance, and the Court of Appeals affirmed.]
• [Witnesses' rebuttal testimony, as to murder defendant's statements about killing people, was relevant to defendant's testimony that it was “not in my nature to talk about killing people” and thus not unduly prejudicial as evidence of prior bad acts; the challenged testimony was introduced to contradict the defendant's own unsolicited testimony, the defendant opened the door to the evidence when he gave the jury the misleading impression that it was not in his nature to talk about killing people, and the trial court instructed the jury that they could consider the challenged testimony for impeachment purposes only.]