See also: ARRESTS
BIAS; CHARACTER ; CONVICTIONS–As Impeachment; DEPOSITIONS–As Impeachment
HOMOSEXUALITY—As Impeachment; INCONSISTENT STATEMENTS; INTOXICATION; MEMORY
OTHER ACTS OR OCCURRENCES–Impeachment: Conduct Involving Dishonesty
PROSECUTION—As Impeachment; PUBLICATIONS–As Impeachment; REHABILITATION; TRUTHFULNESS–Witness’ Character

1.  Generally

Impeachment is the introduction of evidence for the purpose of attacking the credibility of a witness.  Impeachment by a party cross-examining a witness is never considered "beyond the scope" of the direct examination.{footnote}See Foster v. United States, 282 F.2d 222 (10th Cir. 1960)(cross-examination which attacks witness’ credibility must be liberally allowed).{/footnote}  Proper impeachment evidence includes evidence showing:

— a prior inconsistent statement (see INCONSISTENT STATEMENTS)
–that the witness’s testimony is incorrect as to a material issue (3 infra)
–the witness lacks sufficient knowledge{footnote}Md. R. Evid. 5-616.{/footnote}
–the witness is biased or prejudiced (see BIAS)
–the witness has engaged in bad acts reflecting on his credibility (see OTHER ACTS OR OCCURRENCES–Impeachment: Conduct Involving Dishonesty)
—  the witness has a poor reputation for truthfulness
–another witness with knopwledge has a poor opinion of the witness’s truthfulness

Impeachment goes to the weight, but not the admissibility of a witness’ testimony.  The trier of fact is generally free to believe the testimony of a witness no matter how badly impeached.{footnote}State v. Elijah, 289 N.W. 575 (Minn. 1940).{/footnote}

2.  Impeaching One’s Own Witness

Traditionally parties have not been allowed to impeach their own witnesses except in certain limited circumstances.  In federal court and in a growing number of states, this rule has been abandoned.{footnote}FRE 607; United States v. Miller, 664 F.2d 94 (5th Cir. 1981)(prosecution may impeach own witness); United States v. Wooldridge, 572 F.2d 1027 (5th Cir. 1978)(same); 89 ALR Fed 13. 

Cal. 785; Ill. Rev. Stat. ch. 110A, & 238 (adopting FRE 607).

But see Balogh’s of Coral Gables, Inc. v. Getz, 798 F.2d 1356 (11th Cir. 1986)(one cannot call witness merely to impeach him and thereby introduce otherwise inadmissible evidence); Chew v. Graham, 122 Ill. App. 3d 461, 461 N.E.2d 574 (1st Dist. 1984)(court in its discretion may refuse to allow party to recall its own witness solely for the purpose of impeachment).{/footnote}  In those jurisdictions which retain the traditional rule, the exceptions to it must be specially noted:

2(a).  Hostile Witnesses

An exception to the traditional rule is recognized for hostile witnesses, such as an adverse party, or someone associated with an adverse party, such as a spouse, relative, employee or partner.{footnote}Smith v. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st Dist. Ct. App. 1981) (insuror could impeach non-party co-insured’s with inconsistent statements even though called as witness by insuror); Sarah E. Nall, Case Note: Evidence — Florida Court Uses Broad Adverse Party Witness Definition For Both Impeachment And Admissions Purposes — Smith V. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st Dist. Ct. App. 1981), 10 Fla. St. U.L. Rev. 277 (1982).
{/footnote}  Some courts recognize an exception for witnesses who are shown to have a bias against the questioning party, or an adverse financial interest in the outcome of the litigation, but many courts hold that this alone is not enough to allow impeachment. 

2(b).  Required Witnesses

Another exception to the traditional rule allows parties to impeach a witness who they were required by a specific law to call as part of their case, such as an attesting witness to a will.  Some courts extend this to allow a party to impeach their own witness if that witness’ testimony is necessary to establish an element of the calling party’s case.  Typically, such persons are the only eyewtinesses to an incident which is material to the case.  Most courts do not extend the exception this far, however.

2(c).  Surprise Testimony

Where the party who called the witness can substantiate that it was actually surprised by the witness’ testimony (through a prior statement by the witness, for example), impeachment will be allowed.{footnote}Marshall v. U.S., 623 A.2d 551, 554-55 (D.C. 1992) (prosecution entitled to impeach its own witness who exonerated the defendant with grand jury testimony identifying defendant as shooter at scene of crime).{/footnote}  The testimony must affirmatively damage the offering party’s case.{footnote}Jefferson v. United States, 558 A.2d 298, 301 (D.C. 1989).{/footnote}  Parties may not use such "impeachment" merely to put inadmissible hearsay before the jury.{footnote}Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979); Hooks v. United States, 375 F.2d 212 (5th Cir. 1967) (prosecution not permitted to call witness it knows to be hostile for purpose of admitting affidavit as impeachment).
State v. Bjelland, 591 P.2d 865 (Wash. App. 1979).{/footnote}  And where the witness simply no longer remebers, impeachment will not be allowed.  Such a witness may have her recollection refreshed, however.  See REFRESHING RECOLLECTION.

2(d).  Due Process Concerns in Criminal Cases

The traditional rule against impeaching one’s own witness may not be applied so as to prevent a criminal defendant from presening impeachment evidence critical to his defense, such as where a defense witness suddenly changes her story.{footnote}Chambers v. Mississippi, 410 U.S. 284 (1973).{/footnote}

3.  Impeaching a Hearsay Declarant

Parties may offer impeachment evidence as to a hearsay declarant, whether or not the declarant is a witness in the case.{footnote}Carver v. United States, 164 US 694 (1897) (G).  Check Lewis v. Ins. Co. of North America, 416 F.2d 1077 (5th Cir. 1969).  {/footnote}  In the case or prior inconsistent statements, there is no requirement that the declarant be given an opportunity to explain the inconsistent statement.{footnote}FRE 806; Cal. § 1202.  {/footnote}  Most courts also permit hearsay declarant to be called as hostile witnesses by the party against which their testimony is offered.{footnote}FRE 806; Cal § 1203.{/footnote} 

4.  Impeachment with Evidence Illegally Obtained

Evidence obtained in violation of a criminal defendant’s constitutional rights which is thereby rendered inadmissible as substantive evidence may nonetheless be introduced to impeach the defendant,{footnote}United States v. Havens, 446 U.S. 620, 64 L.Ed.2d 559, 100 S.Ct. 1912 (1980); Harris v. New York, 401 U.S. 222, 28 L.Ed.2d. 1, 91 S.Ct. 643 (1971)(confession obtained in violation of Miranda rights); Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (heroin obtained through illegal search); United States v. Maddox, 449 F.2d 148 (2d Cir. 1971) (holding?); Weinstein & 607[09].{/footnote} unless the evidence consists of an involuntary statement or confession.{footnote}Mincey v. Arizona, 437 U.S. 385, 57 L.Ed.2d 290, 98 S.Ct. 2408 (1978){/footnote}  Illegally obtained evidence may not be used to impeach defense witnesses other than the defendant.{footnote}James v. Illinois, 493 U.S. 307, 107 L.Ed.2d 676, 110 S. Ct. 648 (1990).{/footnote}  Moreover, illegally obtained evidence may only be used to impeach testimony of the defendant on direct examination or in response to proper cross-examination within the scope of the direct examination.{footnote}United States v. Havens, 446 U.S. 620, 64 L. Ed. 2d 559, 100 S. Ct. 1912 (1980).{/footnote}  See also EXCLUSIONARY RULE.

5.  Unfair Prejudice

If the witness is also a party, a victim [rape exception], or a criminal accused, the impeachment evidence may be excluded on grounds of prejudice.{footnote}Check United States v. Rosenberg, 108 F. Supp. 798 (N.Y.), aff’d 200 F.2d 666, cert.denied, 345 U.S. 965, 73 s.ct. 949, 97 L.Ed. 1384 (1953) (excluding opinion evidence on witness’ credibility).{/footnote} 

6.  Evidence Rebutting Testimony: Collateral Issues

A witness may be impeached with evidence contradicting his or her testimony on a material issue.{footnote}Md. R. Evid. 5‑616.{/footnote}  A witness cannot be impeached by extrinsic evidence that he or she has testified falsely at trial unless that evidence is independently relevant to one of the issues in the case{footnote}United States v. Beauchamp, 986 F.2d 1 (1st Cir. 1993); Martin v. United States , 75 App. D.C. 399, 127 F.2d 865 (D.C. Cir. 1942).
CHECK contra United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963):
CHECK Patterson v. United States, 580 A.2d 1319, 1323 (D.C. 1990) (same).
Cf.{/footnote} or to the witness’ credibility.  In other words, one may not impeach a witness’ testimony with extrinsic evidence as to a collateral matter.{footnote}Walder v. United States, 347 U.S. 52 (1954); Head v. Halliburton Oilwell Cementing Co., 370 F.2d 545 (5th Cir. 1966).  

State v. Larson, 253 N.W.2d 433 (N.D.1977).{/footnote}  Extrinsic evidence as to collateral matters is not permitted because it tends to confuse the issues and consume too much time.  Note however, that evidence which not only is contary to the witness’ testimony at trial but also reflects independently on the witness’ crebility (evidence that the witness lied about not being financially interested in the litigation, for example) is admissible.

Impeachment by evidence of a collateral matter is proper where the collateral matter involves past dishonest misconduct of the witness{footnote}United States v. Whiting, 311 F.2d 191 (4th Cir. 1962).{/footnote} (see above), or a prior inconsistent statement{footnote}United States v. Barash, 365 F.2d 395 (2d Cir. 1966).{/footnote} (see above).

6(a).  Doctrine of Specific Contradiction

This doctrine described:

Where a defendant, in his direct testimony, falsely states a specific fact, the prosecutor will not be prevented from proving, either through cross examination or by calling its own witnesses, that he lied as to that fact . . . . The rationale behind this rule is not difficult to perceive, for even if the issue injected is irrelevant or collateral, a defendant should not be allowed to profit by a gratuitously offered misstatement. {footnote}United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963) (emphasis and citations omitted).  See also CONVICTIONS § 4.  Impeachment.
Accord Patterson v. United States, 580 A.2d 1319, 1323 (D.C. 1990).{/footnote}

This doctrine has been held inapplicable where the prosecution has itself drawn out the false assertion on cross-examination.{footnote}Williams v. U.S., 642 A.2d 1317, 1321 (D.C. App. 1994).{/footnote}

7.  Appeal

Where a criminal defendant moves to exclude impeachment evidence in the event he should take the stand, and the motion is denied, the denial may only raised on appeal if the defendant testifies and is impeached.{footnote}Luce v. United States, 469 U.S. 38 (1984) (impeachment through prior convictions).  Cf. New Jersey v. Portash, 440 U.S. 450 (1979)(reviewing error even though defendant did not testify, since state permitted appeal).
{/footnote}  The same rule has been applied to impeachment evidence as to witnesses other than the defendant.{footnote}United States v. Griffin, 818 F.2d 97 (1st Cir.), cert. den., 108 S.Ct. 137 (1987); United States v. DiPaolo, 804 F.2d 225 (@d Cir. 1986).{/footnote}  It has been held that the defendant does not then waive his objection if the evidence is brought out by the defendant himself during direct examination.{footnote}United States v. Key, 717 F.2d 1206 (8th Cir. 1983).

Contra Jones v. Collier, 762 F.2d 71 (8th Cir. 1985).{/footnote}  The court is not required to rule on the admissibility of prior convictions before the defendant takes the stand.{footnote}United States v. Hood, 748 F.2d 439 (8th Cir. 1984); United States v. Jankowski, 713 F.2d 394 (8th Cir. 1983).{/footnote}

The improper impeachment of the defendant himself is more likley to constitute reversible error than improper impeachment of another defense witness.{footnote}Williams v. U.S., 642 A.2d 1317, 1323 (D.C. App. 1994) (improper impeachment of defense witness held harmless error).{/footnote}