MBE Tip of the Day: Evidence

Answer to the Evidence MBE Question

Subject: Evidence

Legal Issue: What is a permissible method of impeachment?

Legal Rule and Analysis: There are numerous limitations on the methods by which one can be impeached.  One method of impeachment is the use of prior inconsistent statements.  If a party or witness has previously made a statement that is inconsistent with their trial testimony, this can be used by the opposing party to impeach the party or witness.  Under limited circumstances, the prior inconsistent statement can also be used as substantive evidence.  The statement must fall into a hearsay exception for this to be allowed.  Extrinsic evidence can be used to prove the inconsistency only if the witness is given a chance to explain or deny the statement at some point (with limited exceptions).

In this case, if the defense’s witness had previously made a statement that contradicted her testimony at trial, the prosecution can try to impeach the witness using this inconsistency.  Since the witness is still on the stand and therefore has the opportunity to deny or explain, the prosecution can use extrinsic evidence of the prior statement.  A copy of the police report in which it was recorded that the witness made that statement would be considered extrinsic evidence.  We do not have a hearsay problem because the prosecution only seeks to impeach the witness, not offer the report into substantive evidence.  Therefore the police report is not hearsay at all since it is not being offered to prove the truth of the matter asserted.  The prosecution’s only goal is to demonstrate that the witness contradicted herself and cannot be trusted.  Thus, this would be the prosecution’s best strategy.

Conclusion: The prosecution should offer the police report containing the witness’ prior inconsistent statement.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (A) is therefore correct. (B) is incorrect because this is an impermissible method of introducing evidence of prior bad acts.  While a party may inquire during cross-examination about specific acts of misconduct that are probative of untruthfulness, the party must accept the witness’ answer.  Extrinsic evidence is not allowed for this impeachment method.  A copy of the false tax return itself would be considered extrinsic evidence.  Thus, the prosecution could ask the witness about the tax return, but it could not introduce a copy of the return. (C) is incorrect because if the party wants to introduce evidence of a misdemeanor conviction in an attempt to impeach, the misdemeanor crime must include an element of dishonesty or false statement.  A misdemeanor for driving under the influence (DUI) does not involve dishonesty, and thus a conviction for a misdemeanor DUI is not admissible to impeach. (D) is incorrect because a character witness in this case would not be allowed to testify about specific facts.  The prosecution would be allowed to call a character witness in an attempt to impeach the other party’s witness, but the character witness can only testify about reputation or opinion regarding the other witness’ truthful character.  Testimony regarding specific facts is not allowed.

MBE Tip: When you see an impeachment or character evidence issue, you should ask yourself two questions: (1) what purpose is the evidence being offered for; and (2) how is the party going about accomplishing this purpose?  This will help you identify what set of rules you need to consider.  The first question is simple enough, but you can’t stop there.  Remember that certain methods can only be utilized in certain instances.  Further, remember that the use of extrinsic evidence is even more limited.  If you can correctly answer these questions, you should have an easier time identifying the proper rule that will lead you directly to whether the evidence is admissible or not.