- In a personal injury trial, the defendant testifies that he was driving carefully. On cross-examination, the plaintiff's attorney seeks to ask the defendant about a guilty plea he entered one month ago to felony mail fraud. The defendant has not yet been sentenced for the mail fraud conviction.
Answer: Yes, because mail fraud is a crime of dishonesty, and a guilty plea is sufficient to constitute a conviction for impeachment.
The correct answer is C. For the purposes of FRE 609, a conviction is established upon a guilty plea or verdict, even if sentencing or appeal is pending. Mail fraud is a crime whose elements require proving a dishonest act or false statement. Therefore, under FRE 609(a)(2), its admission for impeachment is mandatory and not subject to a balancing test. Choice A is incorrect; sentencing is not required for a conviction to be used for impeachment. Choice B is incorrect because there is no special rule precluding the use of financial crimes in personal injury cases. Choice D is incorrect because as a crime of dishonesty under FRE 609(a)(2), admission is mandatory, and the balancing test of FRE 609(a)(1)(B) for defendant-witnesses does not apply.
- In a civil trial for breach of contract, a key witness for the plaintiff testifies about the contract negotiations. On cross-examination, the defense attorney asks the witness, "Isn't it true that you intentionally submitted a false insurance claim three years ago?" The witness denies it. The defense attorney then seeks to call an insurance adjuster to testify that the witness did, in fact, submit a fraudulent claim.
Answer: No, because extrinsic evidence is not admissible to prove a specific instance of a witness's conduct to attack their character for truthfulness.
The correct answer is D. FRE 608(b) permits inquiry into specific instances of conduct on cross-examination if they are probative of the witness's character for truthfulness. However, the rule explicitly states that extrinsic evidence is not admissible to prove such conduct. The defense attorney was permitted to ask the question, but once the witness denied it, the attorney cannot prove the act by calling another witness (the adjuster). This is often referred to as being "stuck with the witness's answer." Choice A is incorrect because even if relevant, it is barred by a specific rule. Choice B is incorrect because the Rule 403 balancing test does not override the specific prohibition in Rule 608(b). Choice C is incorrect because the evidence need not be related to the underlying dispute to be relevant for impeachment.
- At a criminal trial for fraud, a key witness testifies for the defense. On cross-examination, the prosecutor asks, "You and the defendant are both devout members of the same church, correct?" The defense attorney objects to the question.
Answer: Sustain the objection, because FRE 610 prohibits any inquiry into a witness's religious beliefs to attack credibility.
The correct answer is A. FRE 610 provides that evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility. While a party may inquire into bias, courts are extremely reluctant to allow questions about shared religion to show bias because of the high risk of prejudice and the explicit prohibition in Rule 610. The rule is designed to prevent juries from judging a witness's credibility based on their religion. Therefore, the objection should be sustained based on the specific prohibition in FRE 610. Choice C presents the most plausible counterargument, but the strong policy behind FRE 610 makes it the less likely ruling. The question is a direct inquiry into religious affiliation for the purpose of suggesting the witness will lie for a fellow member, which is what the rule aims to prevent. Choice B is incorrect because bias is always relevant. Choice D is incorrect because calling a witness does not open the door to impermissible impeachment methods.
- You are representing a plaintiff in a medical malpractice action against a surgeon. The surgeon is expected to testify. Your investigation revealed two facts: (1) three years ago, the surgeon was formally sanctioned by the state medical board for altering patient records to conceal a mistake, and (2) four years ago, the surgeon was a defendant in a different malpractice case that ended in a confidential settlement.
Answer: The sanction is admissible as a specific act probative of untruthfulness, but the settlement is inadmissible.
The correct answer is B. The sanction for altering patient records is a specific instance of conduct that is highly probative of the surgeon's character for untruthfulness. Under FRE 608(b), you can cross-examine the surgeon about this sanction, though you cannot introduce extrinsic evidence of it if the surgeon denies it. The prior settlement, however, is inadmissible under FRE 408, which bars evidence of compromise offers and negotiations to prove liability or the amount of a claim. Choice A is incorrect because the settlement is inadmissible under FRE 408. Choice C incorrectly applies both rules; the settlement cannot be used to show a pattern of negligence (propensity evidence barred by FRE 404), and the sanction is admissible for impeachment inquiry. Choice D is incorrect because impeachment is not limited to criminal convictions; FRE 608(b) allows cross-examination about specific acts probative of untruthfulness.
- In a contract dispute, the defendant calls his accountant to testify about the company's financial records. The plaintiff's attorney wishes to attack the accountant's credibility. The attorney plans to call a second witness, a former colleague of the accountant, to testify that, in his opinion, the accountant is an untruthful person.
Answer: Admissible, because a witness's character may be attacked by opinion evidence regarding their untruthfulness.
The correct answer is A. FRE 608(a) explicitly allows a witness's credibility to be attacked by testimony in the form of an opinion about the witness's character for having a character for truthfulness or untruthfulness. The plaintiff's attorney is permitted to call a character witness to give an opinion that the accountant is an untruthful person. Choice B is incorrect; this rule describes how a witness's truthful character may be supported (i.e., only after it has been attacked). A party can initiate an attack on an opposing witness's character for untruthfulness at any time. Choice C is incorrect; this type of character evidence is permissible in both civil and criminal cases. Choice D is a misstatement of the law under FRE 608(a).
- A plaintiff sued a trucking company after a collision. The company's driver testified that he had inspected his truck's brakes that morning and they worked perfectly. On cross-examination, the plaintiff's attorney wants to ask the driver if he was fired from his previous two truck driving jobs for falsifying his driving logs. The driver was not convicted of any crime for this conduct.
Answer: Yes, because falsifying driving logs is a specific act of dishonesty that is probative of the driver's character for truthfulness.
The correct answer is C. Under FRE 608(b), the court may allow a witness to be cross-examined on specific instances of conduct if they are probative of the witness's character for truthfulness. Falsifying official logs is an act of deceit and is highly probative of the driver's character for truthfulness. Therefore, the question is a permissible method of impeachment. Choice A is incorrect because the evidence is not being offered to prove the condition of the brakes, but to attack the credibility of the witness testifying about the brakes. Choice B is incorrect because FRE 608(b) specifically allows inquiry into such acts on cross-examination even without a conviction. Choice D is incorrect because this line of reasoning constitutes forbidden propensity evidence under FRE 404; the proper purpose is for impeachment of credibility, not to prove negligent conduct.
- In a murder trial, the prosecution's star witness is the defendant's former business partner. The defense has discovered that the witness was convicted of felony perjury 12 years ago, and has provided proper written notice to the prosecution of its intent to use the conviction for impeachment.
Answer: Only if the court specifically finds that the conviction's probative value substantially outweighs its prejudicial effect.
The correct answer is C. FRE 609(b) governs the admissibility of convictions that are more than 10 years old. Such evidence is generally inadmissible. However, it can be admitted if the proponent gives adverse party reasonable written notice and the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. This is a reverse balancing test that is difficult to meet. Choice A is incorrect because it states the general rule but ignores the exception. Choice B is incorrect because the 10-year rule applies to all convictions, including crimes of dishonesty. Choice D is incorrect because the admissibility of the conviction itself is the issue, not the procedure for introducing it if the witness is untruthful about it on the stand.
- A defendant is on trial for robbery. His girlfriend provides an alibi, testifying that the defendant was at her apartment when the robbery occurred. A day after the robbery, police interviewed the girlfriend. The girlfriend told the police she was home alone that night and never mentioned that the defendant had been with her. On cross-examination, the prosecutor asks the girlfriend about her failure to provide this alibi to the police during the initial interview.
Answer: The question is proper, because her prior omission is inconsistent with her trial testimony and probative of its credibility.
The correct answer is C. A witness's prior silence or omission can be treated as a prior inconsistent statement for impeachment purposes if it was natural for the witness to have asserted the fact at the prior time. Here, if her boyfriend were truly with her, it would have been natural for her to tell the police this when they were investigating the crime. Her failure to do so is inconsistent with her current testimony and can be used to impeach her. Choice A is incorrect; an omission can function as a statement for impeachment purposes. Choice B is incorrect; the Fifth Amendment right against self-incrimination is personal and does not protect a witness from being impeached for failing to provide exculpatory information about a third party. Choice D is incorrect because Miranda warnings are relevant to the use of a defendant's post-arrest silence, not the impeachment of a non-defendant witness by omission.
- A witness in a car accident case testifies for the plaintiff. On direct examination, the witness states, "I saw the whole thing clearly; my vision is perfect, and I have never even needed glasses." The defense attorney has obtained the witness's medical records, which indicate the witness has been diagnosed with glaucoma and was prescribed corrective lenses two years ago.
Answer: Yes, because the witness's statement on direct examination opened the door to impeachment by contradiction on a material issue.
The correct answer is C. This is an example of impeachment by contradiction. When a witness makes a specific, factual assertion on direct examination (a so-called "non-collateral" or material matter), the opposing party can introduce extrinsic evidence to prove that assertion is false. Here, the witness's ability to see is directly material to his testimony, and his absolute claim about his vision opens the door to be contradicted by the medical records. Choice A is incorrect because while a physician-patient privilege may exist, it can be waived or may not apply if the witness puts his physical condition at issue, which he did by testifying about his "perfect" vision. Choice B incorrectly characterizes this as an attack on general character under FRE 608(b); it's an attack on the substance of the testimony. Choice D is incorrect because there is no requirement to "ask first" when impeaching by contradiction on a statement made during direct examination.
- In a complex securities fraud trial, the plaintiff testifies. On cross-examination, the defense lawyer spends two hours impeaching the plaintiff with deposition testimony that contains several minor inconsistencies with his trial testimony. The defense lawyer concludes by saying, "So you are asking the jury to believe you today, even though your story has changed?" On redirect, the plaintiff's lawyer seeks to call the plaintiff's longtime pastor to testify that the plaintiff has a community reputation for honesty.
Answer: Yes, because the cross-examination amounted to an attack on the plaintiff's character for truthfulness.
The correct answer is D. Under FRE 608(a), evidence of a witness's truthful character is admissible only after their character for truthfulness has been attacked. While merely pointing out inconsistencies is not always a sufficient attack, an aggressive cross-examination that suggests the witness is deliberately fabricating testimony can open the door to rehabilitation. The defense lawyer's final question, implying the plaintiff is a liar, constitutes such an attack. Choice A states the general rule but misses the exception for rehabilitation after an attack. Choice B is incorrect; while the witness is a pastor, he is testifying about community reputation for honesty, not religious beliefs, so FRE 610 is not violated. Choice C is too broad; while credibility is key, the rule still requires an attack before truthful character evidence is allowed.
- A 22-year-old defendant is on trial for armed robbery. The prosecution's key eyewitness is 19 years old. The defense seeks to impeach the eyewitness with a finding of delinquency from a juvenile court proceeding for felony burglary that occurred when the witness was 16 years old.
Answer: No, because evidence of a juvenile adjudication is presumptively inadmissible against a witness.
The correct answer is D. FRE 609(d) establishes a strong presumption against the admissibility of juvenile adjudications. There is a very narrow exception for a witness other than the defendant in a criminal case, but it requires that the evidence be necessary for a fair determination of guilt or innocence. Courts apply this exception very rarely. The general rule is that juvenile adjudications are not admissible. Therefore, the evidence is presumptively inadmissible. Choice A is incorrect because the fact that the underlying act would be a felony for an adult is just one prerequisite for the narrow exception; it does not make it automatically admissible. Choice B makes a conclusory statement about the exception's requirements without establishing that they are met, which is unlikely. Choice C is incorrect because the narrow exception applies only when the witness is not the defendant.
- A defendant is being prosecuted for embezzling funds from his employer. The company's chief financial officer (CFO) testifies for the prosecution, providing key evidence of the defendant's access to the accounts. On cross-examination, the defense attorney wants to ask the CFO if he is currently the subject of an unrelated criminal investigation by the same district attorney's office.
Answer: Yes, because the questioning is relevant to show the witness's potential bias or motive to cooperate with the prosecution.
The correct answer is C. The evidence is not being offered to show that the CFO has a bad character for truthfulness (FRE 608) or has been convicted of a crime (FRE 609). Instead, it is being offered to show bias. A witness who is under investigation by the same prosecutor's office has a potential motive to curry favor with the prosecution by providing testimony helpful to the government. Evidence of bias is almost always relevant and admissible, and cross-examination is a proper method to expose it. Choice A incorrectly applies the rule for impeachment by conviction (FRE 609) to a situation involving bias. Choice B is incorrect because the purpose is to show bias, not to attack general character for truthfulness. Choice D is incorrect because an investigation, by itself, is not probative of character; the purpose of the inquiry is to expose a motive to lie in this specific case.
- Which impeachment is barred by Rule 610?
Answer: Lack of religious belief
Rule 610 bars using a witness's religious beliefs or opinions, including a lack of belief, to attack credibility, so you cannot use lack of religious belief to impeach. The tempting wrong answer is prior perjury conviction, but Rule 609 allows convictions for dishonest crimes. Bias and reputation for untruthfulness are also permissible.
- In a trial for arson, a defense alibi witness testifies. On cross-examination, the prosecutor asks, "Isn't it true that you were convicted last year of misdemeanor shoplifting for switching the price tags on a piece of merchandise?" The relevant statute defines this act as theft by deception. The defense objects.
Answer: Overrule the objection, because the conviction was for a crime involving a dishonest act.
The correct answer is C. Under FRE 609(a)(2), a conviction for a crime must be admitted for impeachment, regardless of whether it is a felony or misdemeanor, if the elements of the crime required proving a dishonest act or false statement. While simple shoplifting may not qualify, shoplifting accomplished by an act of deceit, such as switching price tags (theft by deception), does involve a dishonest act. Therefore, the conviction is admissible. Choice A is incorrect because FRE 609(a)(2) is not limited to felonies. Choice B is incorrect because the relevance is to the witness's general character for truthfulness, not specifically about their ability to testify about arson. Choice D is an overstatement of the law; not all convictions are admissible for impeachment (e.g., misdemeanors not involving dishonesty).
- The prosecution calls an eyewitness in a bank robbery case. The witness, who previously gave a detailed statement to police, gives vague and hesitant testimony on the stand, failing to identify the defendant. Believing the witness is being intimidated, the prosecutor asks, "You're afraid of the defendant's family, aren't you?" The defense objects.
Answer: Overrule the objection, because the question is relevant to show the witness's bias or motive for changing his testimony.
The correct answer is C. The prosecutor's question is designed to elicit evidence of bias or motive—specifically, that the witness is testifying in a particular way out of fear. This is a permissible way to explain the witness's change in testimony and to attack or explain his current credibility. Choice A is incorrect because leading questions are often permitted on direct examination when a witness is hostile, evasive, or an adverse party, which this witness appears to be. Choice B is incorrect because FRE 607 allows any party, including the party that called the witness, to impeach them. A formal finding of hostility is not required. Choice D is incorrect because the question is aimed at bias/motive, not the witness's general character for truthfulness.
- Witness is impeached by bias. May her party offer her reputation for truthfulness?
Answer: No; bias is not character
Bias impeachment attacks the witness's motive, not her character for truthfulness. Under the rule, reputation for truthfulness is admissible only after character for truthfulness itself has been attacked. The tempting wrong answer is 'Yes; any attack opens the door,' but bias and character are distinct grounds of impeachment.
- In a civil case, the plaintiff's primary witness is her brother. On cross-examination, the defendant's attorney asks, "You would do anything to help your sister win this case, wouldn't you?" The witness responds, "I am only here to tell the truth. My relationship with my sister has nothing to do with it." On redirect, the plaintiff's attorney seeks to ask the witness about a well-known and bitter dispute he had with his sister over an inheritance last year.
Answer: Yes, to rebut the implied charge of bias raised during cross-examination.
The correct answer is C. This is a form of rehabilitation. The defense attorney impeached the witness by implying he was biased due to his familial relationship. The plaintiff is now entitled to rebut that specific implication. Evidence that the witness and his sister recently had a bitter dispute tends to rebut the inference that he would automatically lie to help her. This is permissible rehabilitation because it directly responds to the attack on credibility. Choice A is incorrect because FRE 607 allows a party to impeach its own witness, and this is more accurately characterized as rehabilitation anyway. Choice B is incorrect because while the dispute is not relevant to the merits of the case, it is highly relevant to the witness's credibility and bias, which were put at issue. Choice D is too broad; the door was opened only to the issue of bias stemming from the relationship, not all aspects of it.
- You are a prosecutor in a case where the defendant is charged with assaulting a police officer. The defendant claims the officer was the initial aggressor. You learn that the defendant's sole eyewitness has a prior felony conviction for filing a false tax return from six years ago and a misdemeanor conviction for disorderly conduct from two years ago.
Answer: Only the felony conviction for filing a false tax return is admissible.
The correct answer is B. The felony conviction for filing a false tax return is admissible under two potential rationales. First, as a felony less than 10 years old, it is admissible under FRE 609(a)(1)(A), subject to Rule 403 balancing. Second, and more directly, filing a false tax return is a crime requiring a dishonest act or false statement, making its admission mandatory under FRE 609(a)(2). The misdemeanor conviction for disorderly conduct is inadmissible. Under FRE 609, a misdemeanor is only admissible if it is a crime of dishonesty. Disorderly conduct does not have an element of dishonesty or false statement. Therefore, only the tax conviction is admissible.
- Witness denies bias. May the proponent prove bias extrinsically?
Answer: Yes; bias is never collateral
Bias is always relevant to credibility, so a denial does not make the matter collateral. You may introduce extrinsic evidence to show bias even after the witness denies it. The tempting mistake is treating the denial as conclusive, but bias affects the witness's motive and can always be explored.
- Your client is a defendant in a civil battery lawsuit. The plaintiff's sole eyewitness testified on direct examination. On cross-examination, you wish to ask the witness if he was fired from his last job for padding his expense reports. The witness was never criminally charged for this conduct. The plaintiff's attorney objects before you can ask the question.
Answer: The question is permissible because padding expense reports is a specific act probative of the witness's character for untruthfulness.
The correct answer is A. Under FRE 608(b), a witness may be cross-examined about specific instances of conduct, even if they did not result in a conviction, provided they are probative of the witness's character for truthfulness or untruthfulness. Padding expense reports is an act of deceit and is therefore highly probative of character for untruthfulness. The court has discretion to allow the question. Choice B is incorrect because the facts do not support a logical link between this act and bias against your client. Choice C is incorrect because FRE 608(b) specifically allows inquiry into such acts even without a conviction. Choice D is incorrect because a witness's character for truthfulness is never considered a collateral matter.
