Top Law Schools

I thought that no extrinsic evidence is allowed for impeachment? Is this correct? But look at this question:

A plaintiff sued a defendant for damages arising out of an automobile collision. At trial, the plaintiff called an eyewitness to the collision. The plaintiff expected the eyewitness to testify that she had observed the defendant's automobile for five seconds prior to the collision and estimated the defendant's speed at the time of the collision to have been 50 miles per hour. Instead, the eyewitness testified that she estimated the defendant's speed to have been 25 miles per hour. Without finally excusing the eyewitness as a witness, the plaintiff then called a police officer to testify that the eyewitness had told him during his investigation at the accident scene that the defendant "was doing at least 50." The police officer's testimony is

Correct Answer: admissible to impeach the eyewitness.

swtlilsoni wrote:I thought that no extrinsic evidence is allowed for impeachment? Is this correct? But look at this question:

A plaintiff sued a defendant for damages arising out of an automobile collision. At trial, the plaintiff called an eyewitness to the collision. The plaintiff expected the eyewitness to testify that she had observed the defendant's automobile for five seconds prior to the collision and estimated the defendant's speed at the time of the collision to have been 50 miles per hour. Instead, the eyewitness testified that she estimated the defendant's speed to have been 25 miles per hour. Without finally excusing the eyewitness as a witness, the plaintiff then called a police officer to testify that the eyewitness had told him during his investigation at the accident scene that the defendant "was doing at least 50." The police officer's testimony is

Correct Answer: admissible to impeach the eyewitness.

The only reason I can see for allowing this is that the question says that the plaintiff called the cop to testify before finally excusing the eyewitness... FRE says you can't use extrinsic evidence unless the witness has a chance to explain or deny, but since the witness wasn't finally excused, she could be brought back to explain or deny the inconsistencies in the statements.

That would be my best guess.

swtlilsoni wrote:I thought that no extrinsic evidence is allowed for impeachment? Is this correct? But look at this question:

A plaintiff sued a defendant for damages arising out of an automobile collision. At trial, the plaintiff called an eyewitness to the collision. The plaintiff expected the eyewitness to testify that she had observed the defendant's automobile for five seconds prior to the collision and estimated the defendant's speed at the time of the collision to have been 50 miles per hour. Instead, the eyewitness testified that she estimated the defendant's speed to have been 25 miles per hour. Without finally excusing the eyewitness as a witness, the plaintiff then called a police officer to testify that the eyewitness had told him during his investigation at the accident scene that the defendant "was doing at least 50." The police officer's testimony is

Correct Answer: admissible to impeach the eyewitness.

Extrinsic evidence is allowed for all impeachment methods, except for bad acts that reflect adversely on w's character for truthfulness. Because this is an impeachment through showing prior inconsistent statement, extrinsic evidence is allowed to impeach the W. In this case, the extrinsic evidence is for impeachment only. But if the prior statement was made under oath, and the W was still subject to cross, like here, was not finally excused, extrinsic evidence would have been admissible to impeach, and as a substantive evidence.

Again, extrinsic evidence is admissible for all impeachment methods except for bad acts related to truthfulness.

NY_Sea wrote:

swtlilsoni wrote:I thought that no extrinsic evidence is allowed for impeachment? Is this correct? But look at this question:

A plaintiff sued a defendant for damages arising out of an automobile collision. At trial, the plaintiff called an eyewitness to the collision. The plaintiff expected the eyewitness to testify that she had observed the defendant's automobile for five seconds prior to the collision and estimated the defendant's speed at the time of the collision to have been 50 miles per hour. Instead, the eyewitness testified that she estimated the defendant's speed to have been 25 miles per hour. Without finally excusing the eyewitness as a witness, the plaintiff then called a police officer to testify that the eyewitness had told him during his investigation at the accident scene that the defendant "was doing at least 50." The police officer's testimony is

Correct Answer: admissible to impeach the eyewitness.

The only reason I can see for allowing this is that the question says that the plaintiff called the cop to testify before finally excusing the eyewitness... FRE says you can't use extrinsic evidence unless the witness has a chance to explain or deny, but since the witness wasn't finally excused, she could be brought back to explain or deny the inconsistencies in the statements.

That would be my best guess.

This is 100% correct.

You can use EE for prior inconsistent statements as long as the witness is given an opportunity, AT SOME POINT, to explain or deny the statement.

So yes, it doesn't matter that she didn't have the opportunity at that moment to explain the statement. Question implies that she will be given the opportunity because like you said, she wasn't excused.

The federal rule itself doesn't make this little distinction but the CMR on page 23 does, in both the foundation section, and exam tip below it.

Also, it is definitely not true that you generally cannot use EE to impeach. You can use EE to impeach for all sorts of things: prior inconsistent statements, to show bias, convictions of felonies/crimes of dishonesty, to show a witness's poor senses (like that they can't see/hear/etc.)

.

BrokenMouse wrote: Extrinsic evidence IS admissible for impeachment purposes. Extrinsic evidence is NOT admissible to impeach on collateral matters.

Source? are you citing common law?
rule 613(b) allows impeachment for prior inconsistent statements using extrinsic evidence. sure it's subject to weighing, but the bolded is an overreach I think.

lacrossebrother wrote:

BrokenMouse wrote: Extrinsic evidence IS admissible for impeachment purposes. Extrinsic evidence is NOT admissible to impeach on collateral matters.

Source? are you citing common law?
rule 613(b) allows impeachment for prior inconsistent statements using extrinsic evidence. sure it's subject to weighing, but the bolded is an overreach I think.

Don't know the exact rule number, but this is for contradiction method as impeachment. When the cross-examiner, through confrontation of W, tries to obtain an admission that she lied/was mistaken, but the W sticks to her prior story, if the matter is collateral, you don't use an extrinsic evidence to prove the contradictory fact. If non-collateral, extrinsic evidence is allowed.

.

lacrossebrother wrote:

BrokenMouse wrote: Extrinsic evidence IS admissible for impeachment purposes. Extrinsic evidence is NOT admissible to impeach on collateral matters.

Source? are you citing common law?
rule 613(b) allows impeachment for prior inconsistent statements using extrinsic evidence. sure it's subject to weighing, but the bolded is an overreach I think.

It's not an overreach at all. Under a 403 balancing test, the probative value of collateral matters is substantially outweighed by confusing the issues, misleading the jury, and/or wasting time. I'm not sure collateral matters even relevant under 401 to begin with.