Presentation of evidence - Impeachment, contradiction, and r...

Learning Outcomes

This article explains impeachment, contradiction, and rehabilitation of witnesses for MBE-style Evidence questions, including:

• Identifying and distinguishing the principal grounds for attacking a witness’s credibility—bias, prior statements, character, convictions, specific acts, and capacity.
• Comparing impeachment by contradiction with other impeachment methods and recognizing when a contradiction concerns a collateral versus material fact.
• Applying FRE 608, 609, 613, and 806 to determine when extrinsic evidence is permitted and when the examiner must accept the answer.
• Evaluating when prior inconsistent statements are admissible, whether they are hearsay or non-hearsay, and when they may be used substantively.
• Determining when prior consistent statements can rehabilitate a witness and operate as substantive evidence by rebutting charges of bias or recent fabrication.
• Selecting the appropriate rehabilitation method—character evidence, prior consistent statements, explanation on redirect, or capacity evidence—tailored to the specific form of impeachment.
• Spotting improper bolstering and premature rehabilitation, and recognizing MBE answer choices that mistakenly permit support for credibility before any attack.
• Using these doctrines to choose between close answer options on Evidence questions by focusing on the exact method and scope of impeachment.

MBE Syllabus

For the MBE, you are required to understand the rules and procedures for challenging and restoring witness credibility, with a focus on the following syllabus points:

• Grounds and methods for impeaching a witness, including bias, prior inconsistent statements, character for truthfulness, convictions, and specific acts
• Impeachment by contradiction and the concept of collateral matters
• Admissibility and limits of extrinsic evidence for impeachment
• Use of prior inconsistent and prior consistent statements, including when they are substantive evidence
• Rehabilitation of witnesses after impeachment and the bar on premature bolstering
• Impeachment and rehabilitation of hearsay declarants

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a proper ground for impeaching a witness?
   1. Bias or interest
   2. Prior inconsistent statement
   3. Prior consistent statement
   4. Sensory deficiency
2. When may extrinsic evidence of a witness’s prior inconsistent statement be introduced?
   1. Always, regardless of the statement’s importance
   2. Only if the statement concerns a collateral matter
   3. Only if the statement concerns a material issue and the witness is given a chance to explain or deny
   4. Never
3. After a witness has been impeached for bias, which of the following is a proper method of rehabilitation?
   1. Calling a character witness to testify to the witness’s truthfulness
   2. Introducing a prior consistent statement made before the alleged bias arose
   3. Introducing evidence of the witness’s prior criminal conviction
   4. Offering extrinsic evidence of a collateral fact

Introduction

Trials often turn on credibility. The Federal Rules of Evidence devote substantial attention to how a party may attack (impeach) or restore (rehabilitate) a witness’s credibility, and these rules are a regular feature of MBE questions. To answer these questions accurately, you must know:

• What kinds of attacks on credibility are allowed
• When those attacks may be proven with extrinsic evidence (other witnesses or documents)
• How and when a witness may be rehabilitated after impeachment

Key Term: Impeachment
The process of challenging the credibility of a witness by showing bias, prior inconsistent statements, character for untruthfulness, defects in perception or memory, or other grounds.

Key Term: Extrinsic Evidence
Evidence introduced to impeach a witness that comes from a source other than the witness being impeached, such as another witness, a document, or a physical record.

Under FRE 607, any party may impeach any witness, including the party who called the witness. The rules are less about whether impeachment is permitted and more about how it must be done and what limits apply.

Impeachment: Challenging Credibility

Impeachment is the process of attacking a witness’s credibility. Any party, including the party who called the witness, may impeach. The main grounds for impeachment are bias or interest, prior inconsistent statements, character for untruthfulness, prior convictions, specific acts of dishonesty, and sensory or mental deficiencies.

Key Term: Bias
A relationship, motive, or interest that gives a witness a reason to slant, fabricate, or shade testimony in favor of or against a party.

Key Term: Character for Truthfulness
A person’s general reputation or opinion in the community for being truthful or untruthful, as opposed to specific acts.

Key point: Bias and interest go to motive; character attacks and convictions go to general honesty; sensory and mental defects go to the ability to perceive, remember, or narrate; prior inconsistent statements and contradiction aim to show the witness’s story is unreliable.

Methods of Impeachment

The principal methods of impeachment are:

• Showing bias or interest (e.g., relationship to a party, financial stake, plea agreement)
• Demonstrating a prior inconsistent statement
• Attacking the witness’s character for truthfulness (by reputation or opinion)
• Introducing evidence of prior convictions for certain crimes
• Inquiring into specific acts of dishonesty (on cross-examination)
• Revealing sensory or mental deficiencies affecting perception or memory
• Impeachment by contradiction with other evidence

Each method has its own rules on how you may prove it and whether extrinsic evidence is allowed.

Key Term: Prior Inconsistent Statement
A statement made by a witness at another time that is inconsistent with the witness’s current testimony, used to impeach credibility. In some circumstances, it is also substantive evidence.

Bias and Interest

Bias is one of the most important impeachment tools and is always relevant.

• Examples:
  • A witness is the plaintiff’s sibling or close friend
  • A witness is on probation and has a cooperation agreement with the prosecution
  • A witness has a financial stake in the outcome

Bias is never a collateral matter, so:

• You may inquire into bias on cross-examination, and
• You may prove bias with extrinsic evidence (other witnesses or documents), subject only to FRE 403 balancing.

Character for Truthfulness and Specific Acts

Under FRE 608:

• A witness’s character for truthfulness or untruthfulness may be attacked or supported by:
  • Opinion testimony, or
  • Reputation testimony
• Evidence of specific instances of conduct that are probative of truthfulness/untruthfulness:
  • May be inquired into on cross-examination in the court’s discretion
  • May not be proven by extrinsic evidence (no documents or additional witnesses just to prove the act)

Examples of specific acts that may be inquired into:

• Lying on a job application
• Falsifying records
• Committing fraud (if no conviction is offered)

But:

• Arrests alone are not admissible to impeach (they are not acts of dishonesty and have low probative value)
• Extrinsic evidence is barred: if the witness denies the specific act, you must “take the answer” and move on.

Impeachment by Prior Conviction

Under FRE 609, certain convictions may be used to impeach:

• Crimes involving a dishonest act or false statement (e.g., perjury, fraud, embezzlement):
  • Admissible to impeach any witness, subject to a stricter 10-year limit and limited balancing tests
• Other felonies (punishable by more than one year):
  • For non-defendant witnesses: admissible subject to FRE 403 (probative value not substantially outweighed by unfair prejudice)
  • For a criminal defendant: admissible only if probative value outweighs prejudicial effect (more protective standard)

Key limits:

• Generally inadmissible if more than 10 years have passed since the later of conviction or release, unless:
  • Advance notice is given, and
  • The court finds probative value substantially outweighs prejudicial effect
• Juvenile adjudications are sharply limited.
• Pardoned or annulled convictions may not be used if the pardon was based on rehabilitation and no later serious crime was committed, or if based on innocence.

Sensory or Mental Deficiencies

A witness may be impeached by showing:

• Poor eyesight or hearing
• Intoxication at the time of events
• Memory problems or mental illness affecting perception or recall

Extrinsic evidence (e.g., medical records, other witnesses) is allowed because these matters directly affect the witness’s capacity and are not collateral.

Prior Inconsistent Statements

Impeaching a witness with a prior inconsistent statement is heavily tested.

Basic rule:

• You may impeach any witness by showing that they previously made a statement that conflicts with their testimony at trial.

Procedures under FRE 613:

• You need not show the statement to the witness before questioning, but on request must show it to opposing counsel.
• Extrinsic evidence of the prior statement is admissible only if:
  • The statement is not about a purely collateral matter, and
  • The witness is given an opportunity at some point to explain or deny the statement, and the opposing party can question the witness about it.

Key Term: Impeachment by Contradiction
Showing, through the witness or other evidence, that a witness’s specific factual testimony is wrong, thereby undermining credibility.

Key MBE wrinkles:

• A prior inconsistent statement made under oath at a trial, hearing, or deposition and subject to penalty of perjury is non-hearsay under FRE 801(d)(1)(A).
  • It may be used both to impeach and as substantive evidence.
• All other prior inconsistent statements:
  • Are admissible to impeach
  • Are hearsay if offered for their truth and must fit a hearsay exception to be substantive evidence

Contradiction and Collateral Matters

A witness may be impeached by showing that their testimony is contradicted by other evidence. However, if the contradiction concerns a collateral matter (not directly relevant to the issues in the case), extrinsic evidence is generally not permitted.

Key Term: Collateral Matter
A fact not directly relevant to the issues in the case, introduced only to contradict a witness and not to prove a substantive issue.

Key Term: Impeachment by Contradiction
Impeachment that occurs when other evidence shows that a witness’s testimony about a specific fact is wrong, undermining credibility.

Rules:

• You may always attempt contradiction on cross-examination.
• If the fact is material (relevant to the elements or defenses), extrinsic evidence is allowed.
• If the fact is purely collateral (e.g., a trivial detail offered only to make the witness look careless or dishonest), you may not use extrinsic evidence; you are stuck with the witness’s answer.

Example of a collateral matter:

• Whether the witness drove to court or took the bus, when that detail affects nothing in the case.

Extrinsic Evidence for Impeachment

Extrinsic evidence (evidence other than the witness’s own testimony) may be used to impeach a witness on certain grounds, such as bias, prior convictions, or material prior inconsistent statements. However, extrinsic evidence is not permitted to impeach a witness on collateral matters or for specific acts of dishonesty (other than convictions).

Key Term: Extrinsic Evidence
Evidence introduced to impeach a witness that comes from a source other than the witness being impeached, such as another witness or a document.

In summary:

• Bias, interest, and motive: extrinsic evidence allowed.
• Sensory or mental defect: extrinsic evidence allowed.
• Prior convictions (FRE 609): extrinsic evidence (the record of conviction) allowed.
• Prior inconsistent statements:
  • Extrinsic evidence allowed if the matter is material and procedural requirements are met.
  • No extrinsic evidence for inconsistent statements on collateral points.
• Specific acts of dishonesty (FRE 608(b)): no extrinsic evidence; cross-examination only.
• Impeachment by contradiction:
  • Extrinsic evidence allowed for material facts, not for collateral ones.

On the MBE, a common trap is an answer that allows extrinsic evidence to prove a specific instance of dishonesty or a trivial contradiction. Remember: no extrinsic evidence for 608(b) acts or purely collateral contradictions.

Impeaching Hearsay Declarants

If hearsay is admitted (for example, a witness recounts what someone else said, and the statement comes in under an exception), the declarant’s credibility may still be attacked.

Under FRE 806:

• You may impeach the hearsay declarant with any evidence that would be allowed if the declarant had testified as a live witness.
• This includes prior inconsistent statements, bias, convictions, and character for truthfulness.
• The impeaching party does not have to call the declarant to the stand.

This is another MBE trap: many answers wrongly suggest you cannot impeach a non-testifying declarant.

Rehabilitation: Restoring Credibility

Once a witness has been impeached, the party who called the witness may attempt to rehabilitate their credibility. Rehabilitation is generally allowed only after impeachment and must directly address the type of impeachment used.

Key Term: Rehabilitation
The process of restoring a witness’s credibility after impeachment, usually by showing prior consistent statements, good character for truthfulness, or by explaining the supposed inconsistency or bias.

Key Term: Prior Consistent Statement
A statement made by a witness at another time that is consistent with the witness’s current testimony, offered to rebut a charge of recent fabrication, improper influence, or bias, or to otherwise rehabilitate the witness.

Key Term: Character for Truthfulness
Opinion or reputation evidence that a witness is generally truthful, offered after the witness’s character for truthfulness has been attacked.

Limits on Bolstering

You may not “bolster” a witness’s credibility before it has been attacked.

• No prior consistent statements just to show the witness is truthful.
• No character witness to say “this witness is honest” until there has been an attack on character for truthfulness.

Main Methods of Rehabilitation

The appropriate rehabilitation depends on how the witness was impeached:

1. After impeachment by prior inconsistent statement or bias

   • You may introduce a prior consistent statement if:
     • It was made before the alleged motive to lie, bias, or improper influence arose, and
     • It rebuts a claim of recent fabrication or improper motive.
   • Under FRE 801(d)(1)(B), this prior consistent statement is not hearsay and is admissible substantively and for rehabilitation.

2. After attack on character for truthfulness

   • You may call a character witness to testify to the witness’s good reputation or opinion for truthfulness.
   • You may not use specific instances of truthful conduct to rehabilitate (except in narrow contexts on cross-examination of the character witness).

3. After impeachment based on faulty memory or sensory deficiency

   • You may rehabilitate with evidence that the witness’s perception or memory is actually reliable, such as:
     • Prior consistent statements made closer in time to the events
     • Evidence of the witness’s good eyesight, sobriety at the time, etc.

4. After impeachment by contradiction

   • You may offer evidence showing the allegedly contradicting evidence is itself mistaken or limited.
   • Or show that the inconsistency involves a minor detail that does not undermine the core of the witness’s testimony.

5. Explanation on redirect

   • The witness may explain or clarify the circumstances of the impeachment, such as:
     • Why the prior statement appears inconsistent
     • Why they had a motive to say something different earlier

This is often the first and simplest form of rehabilitation.

Worked Example 1.1

A witness testifies for the plaintiff. On cross-examination, the defense asks about a prior inconsistent statement the witness made to police. The witness denies making the statement. The defense seeks to introduce the police report containing the statement.

Answer:
The police report may be introduced as extrinsic evidence only if the prior inconsistent statement concerns a material issue (not a purely collateral matter), and the witness is given an opportunity at some point to explain or deny the statement. If those conditions are met, the report is admissible to impeach. If the statement was given under oath at a prior proceeding, it may also be substantive evidence under FRE 801(d)(1)(A).

Worked Example 1.2

During trial, a witness is impeached by evidence that he is the plaintiff’s brother and stands to benefit financially from the outcome. On redirect, the plaintiff’s attorney offers a prior consistent statement made by the witness before the lawsuit was filed.

Answer:
The prior consistent statement is admissible to rehabilitate the witness, as it was made before the alleged bias (the financial stake arising from the lawsuit) arose. Under FRE 801(d)(1)(B), it may also be considered as substantive evidence, not just for credibility.

Worked Example 1.3

In a criminal trial, the defendant testifies. The prosecution seeks to impeach him with a 12-year-old conviction for a non-dishonesty felony, offering a certified copy of the judgment.

Answer:
The conviction is extrinsic evidence of impeachment by prior conviction. However, because more than 10 years have passed, it is presumptively inadmissible. It may be admitted only if the prosecution gives reasonable written notice and the court finds that its probative value substantially outweighs its prejudicial effect. On MBE facts, that high standard is rarely met, so the conviction is likely inadmissible.

Worked Example 1.4

A hearsay statement by X is admitted against the defendant under the excited utterance exception. X does not testify. The defense wants to show that X was biased against the defendant due to a longstanding business rivalry.

Answer:
The defense may introduce extrinsic evidence of X’s bias under FRE 806, even though X did not testify. The declarant’s credibility may be attacked in any way that would be allowed if X were on the stand, including bias shown by extrinsic evidence.

Worked Example 1.5

A witness testifies for the prosecution. On cross, the defense asks: “Isn’t it true that you lied on a loan application last year?” The witness denies it. The defense then offers the loan application to prove the lie.

Answer:
The initial question is proper impeachment by specific act of dishonesty under FRE 608(b), in the court’s discretion. However, extrinsic evidence (the application) is not allowed to prove the specific act. The court should exclude the document, and the defense is stuck with the witness’s denial.

Exam Warning

Impeachment by contradiction is limited: Extrinsic evidence is not allowed to contradict a witness on collateral matters. Attempting to do so is a common MBE trap. Also beware answer choices that improperly allow extrinsic evidence to prove specific acts of dishonesty (other than convictions).

Revision Tip

If a question asks whether extrinsic evidence is admissible to impeach, first determine:

• What method of impeachment is being used (bias, prior inconsistent statement, conviction, specific act, contradiction), and
• Whether the point is material or collateral.
  Then apply the specific rules of FRE 608, 609, 613, and 806.

Key Point Checklist

This article has covered the following key knowledge points:

• Impeachment challenges a witness’s credibility and may be done by any party under FRE 607.
• Main impeachment methods: bias, prior inconsistent statements, character for truthfulness, convictions, specific acts of dishonesty, sensory or mental deficiencies, and contradiction.
• Bias is never collateral; extrinsic evidence is permitted to prove it.
• Prior inconsistent statements may be proved by extrinsic evidence only if they concern a material issue and the witness has a chance to explain or deny.
• Specific acts of dishonesty (FRE 608(b)) may be inquired into on cross, but extrinsic evidence is barred.
• Prior convictions are governed by FRE 609, with different rules for crimes of dishonesty, other felonies, and convictions more than 10 years old.
• Contradiction by extrinsic evidence is not permitted for collateral matters.
• Hearsay declarants may be impeached in the same ways as testifying witnesses under FRE 806.
• Rehabilitation is allowed only after impeachment and must directly address the type of impeachment used.
• Prior consistent statements may rehabilitate and be substantive evidence only if made before the alleged motive to lie or bias arose.
• Bolstering a witness’s credibility before impeachment is not permitted.

Key Terms and Concepts

• Impeachment
• Bias
• Character for Truthfulness
• Prior Inconsistent Statement
• Prior Consistent Statement
• Impeachment by Contradiction
• Collateral Matter
• Extrinsic Evidence
• Rehabilitation