Rehabilitation of impeached witness - Next Generation Bar Exam

1. What forms of attack generally open the door to evidence of truthful character?

   Opinion or reputation evidence of untruthfulness, prior convictions, and specific acts of untruthfulness. Prior inconsistent statements may open the door depending on the nature of the attack.

2. A witness is impeached by evidence of a prior perjury conviction. The proponent calls a neighbor to testify to the witness's reputation for honesty. What is the status of the neighbor's testimony?

   It is admissible under FRE 608(a), because character for truthfulness was attacked. A conviction involving dishonesty is an attack on truthful character.

3. Under the 2014 amendment to FRE 801(d)(1)(B)(ii), when may prior consistent statements be admitted substantively?

   When they rehabilitate the declarant's credibility as a witness after an attack on another ground. Such statements must have a genuine rehabilitative effect on the attack made.

4. A witness is accused of fabricating after a leniency promise last month. She told a friend the same account a year ago. What is the status of that statement?

   It is admissible as substantive evidence under FRE 801(d)(1)(B). It predates the alleged motive to fabricate.

5. Under FRE 801(d)(1)(B), when is a testifying witness's prior consistent statement admissible as substantive evidence?

   When offered to rebut a charge of recent fabrication or improper influence, or to rehabilitate after another attack. The declarant must testify and be subject to cross-examination.

6. A witness testifies without impeachment, and the proponent then offers opinion evidence of the witness's honesty. How should the court rule?

   Exclude it, because truthful character evidence is admissible only after an attack. Bolstering an unimpeached witness is improper.

7. What is the status of a witness's explanation on redirect after impeachment?

   It is permitted to clarify or explain the impeaching matter. Redirect is limited to matters raised on cross-examination.

8. What is the general rule on bolstering a witness's credibility before any attack?

   It is prohibited, because supporting evidence is admissible only in response to an attack. A party may not introduce supporting credibility evidence until credibility is impeached.

9. Under FRE 608(a), when may evidence of a witness's truthful character be offered?

   Only after the witness's character for truthfulness has been attacked. Attacks by bias evidence alone do not ordinarily open the door.

10. Under Tome v. United States, when must a prior consistent statement offered to rebut a charge of recent fabrication have been made?

    Before the alleged motive to fabricate arose. A statement made after the motive arose does not rebut the charge.

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