Impeachment
Who may impeach
• Any party, including the party that called the witness, may attack the witness's credibility.
• Rule 607 makes clear that a witness's credibility may be attacked by any party, including the one who called the witness.
Ingram v. State, 715 N.E.2d 405 (Ind. 1999)
Ways to impeach
• [In Indiana, there are five primary ways to attack a witness’s credibility:]
(1) through a showing the witness has made statements inconsistent with his testimony; (2) through a showing the witness is biased or prejudiced for or against a party; (3) through a general or specific attack upon the witness's character; (4) through a showing of a defect in the witness's capacity to observe and recall the events about which testimony is given; (5) contradiction of the witness's testimony by other evidence.
Ellyson v. State, 603 N.E.2d 1369, 1375 (Ind. Ct. App. 1992)
Limitations
• Pursuant to Indiana Evidence Rule 607, a party may impeach the credibility of its own witnesses. However, evidence admitted only for impeachment may not be used as substantive evidence.
Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App. 2012)
• [A witness may not be called under the guise of impeachment for the primary purpose of getting inadmissible evidence before a jury.]
• [A] party is forbidden from placing a witness on the stand when the party's sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment.
Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001)
• It would be an abuse of [Rule 607], in a criminal case, for the prosecution to call a witness that it knew would not give useful evidence, just so it could introduce [inadmissible] evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence--or if it didn't miss it, would ignore it.
Rafferty v. State, 610 N.E.2d 880 (Ind. Ct. App. 1993)
• If the State has a legitimate basis to call the witness, then the placement of otherwise inadmissible evidence before the jury is proper.
Impson v. State, 721 N.E.2d 1275 (Ind. Ct. App. 2000)
Collateral matters
• Collateral matters cannot be made the basis for impeachment.
Hobbs v. State, 548 N.E.2d 164, 166-67 (Ind. 1990)(citing Smith v. State, 455 N.E.2d 346, 354 (Ind. 1983))
• The determination of whether a matter is collateral depends upon whether the offering party would be entitled to prove it as part of the case in chief, apart from the contradiction it supplies…. A party may inquire into a collateral matter on cross-examination, but the questioner is bound by the answer he or she receives and may not impeach the witness with extrinsic evidence unless the evidence would be independently admissible.
Shriner v. State, 829 N.E.2d 612, 621 (Ind. Ct. App. 2005)(quoting Kien v. State, 782 N.E.2d 398, 409 (Ind. Ct. App. 2003), reh’g denied)
Character, in general
• 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.
• A witness may not be impeached by specific acts of misconduct that have not resulted in criminal convictions.
Rhodes v. State, 771 N.E.2d 1246, 1254 (Ind. Ct. App. 2002)
Reputation evidence
• 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.
Norton v. State, 785 N.E.2d 625 (Ind. Ct. App. 2003)
• The tendency has been to exclude "prior" reputation testimony only if it ‘relates to a time or place so remote as to afford no reasonable ground of information….’”
Johnson v. State, 419 N.E.2d 232 (Ind.Ct. App. 1981)
• 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.
Dynes v. Dynes, 637 N.E.2d 1321 (Ind. Ct. App. 1994), trans. denied
Opinion Evidence
• Estranged familial relationship for a decade did not preclude opinion evidence on honesty; “honesty is more like climate than like weather: it is a stable attribute even though subject to daily variability.
United States v. Tedder, 403 F. 3d 836 (7th Cir. 2005)
Impeachment by evidence of conviction of crime
• For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
• Rule 609 situations do not require a balancing test similar to Rule 403.
See McCarthy v. State, 751 N.E.2d 753 (Ind. Ct. App. 2001), trans. denied("[I]n Rule 609(a) situations, a trial court need not conduct the Rule 403 analysis.")
• Crimes reflecting on a perpetrator’s credibility:
Second degree burglary.
Garner v. State, 413 N.E.2d 584 (Ind. 1980)
Assault and battery with intent to robbery.
Roseberry v. State, 402 N.E.2d 1248 (Ind. 1980)
Assault and battery with intent to commit rape.
Foster v. State, 526 N.E.2d 696 (Ind. 1988)
False informing.
Miles v. State, 591 N.E.2d 642 (Ind. Ct. App. 1992)
Theft
Theft encompasses a wide variety of factual situations, some of which have been held not to indicate a witness's lack of truthfulness or veracity…In order to avoid the presumption that theft is a Rule 609(a)(2) crime, the defendant must make the ameliorating facts known to the court through a pre-trial motion in limine, supported by appropriate affidavits, thereby allowing the court the opportunity to exclude, in its discretion, any reference to such prior conviction.
Brown v. State, 703 N.E.2d 1010 (Ind. 1998)(citations and quotation marks omitted)
• However, certain offenses are inadmissible:
Drug offenses
Johnson v. State, 517 N.E.2d 397 (Ind. 1988)
Prostitution
Belcher v. State, 453 N.E.2d 214 (Ind. 1983)
Possession of a gun without a permit
Fassoth v. State, 525 N.E.2d 318 (Ind. 1988)
Ten Year Limit
• “Rule 609(b) creates a rebuttable presumption that convictions over 10 years old are inadmissible for impeachment purposes. Thus, the burden is on the proponent of the evidence to demonstrate that the probative value of the evidence supported by specific facts and circumstances substantially outweighs its prejudicial effect.”
Giles v. State, 699 N.E.2d 294 (Ind. Ct. App. 1998)
• In weighing admissibility, “the trial court is to consider the following five factors, but this list is not exclusive: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness' subsequent history; (3) the similarity between the past crime and the charged crimes; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.”
Scalissi v. State, 759 N.E.2d 618 (Ind. 2001)
• Effect of a Pardon, Annulment, or Certificate of Rehabilitation: “Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”
Nunn v. State, 601 N.E.2d 334 (Ind. 1992)
• Juvenile Adjudications: In a criminal case, a court may “allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.”
Logan v. State, 729 N.E.2d 125 (Ind. 2000)
Pendency of Appeal: Guilty Pleas not yet reduced to judgment constitute a conviction for impeachment purposes
• Prior to the adoption of the Indiana Rules of Evidence, we held that it did, stating, "when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant. . . . The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.”
Specht v. State, 734 N.E.2d 239 (Ind. 2000)
• If a witness denies having been convicted, then the witness may be “impeached by other evidence reflecting the convictions.”
Beach v. State, 512 N.E.2d 440 (1987)
• A record of the witness's conviction is to be introduced only if the witness denies being convicted or claims not to remember.
Boyd v. State, 564 N.E.2d 519 (Ind. 1991)
• Opening the door on convictions other than those permitted by 609(a): “By volunteering information about his prior conviction, appellant had opened the door to further questioning concerning that subject.”
Moffatt v. State, 542 N.E.2d 971 (1989)
• When, in direct examination, a party leaves the trier of fact with a false or misleading impression of the facts related, the direct examiner may be held to have "opened the door" to the cross examiner to explore the subject fully, even if the matter so brought out on cross examination would otherwise have been inadmissible.
Stokes v. State, 908 N.E.2d 295 (Ind. Ct. App. 2009)
Religious beliefs or opinions
• Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.
• Rule 610 “operates only to bar the use of such testimony if it is offered for the purpose of buttressing or impugning the credibility of a witness.”
See Pawlik v. Pawlik, 823 N.E.2d 328 (Ind. Ct. App. 2005)(“We are satisfied that the questioning concerning Mary Ann's religious beliefs was not intended to buttress or impugn her credibility, but was instead aimed at gathering facts relevant to child custody and visitation matters to be decided by the trial court.”)