Learning Outcomes
After reading this article, you will be able to identify and apply the rules governing impeachment, contradiction, and rehabilitation of witnesses in MBE-style questions. You will understand the main methods of attacking a witness’s credibility, the limits on using extrinsic evidence, the rules for prior inconsistent statements, and how a witness may be rehabilitated after impeachment.
MBE Syllabus
For the MBE, you are required to understand the rules and procedures for challenging and restoring witness credibility. This includes knowing when and how a witness may be impeached, the use of prior inconsistent statements, the admissibility of extrinsic evidence, and the methods for rehabilitating a witness. You should be able to:
- Recognize the main grounds and methods for impeaching a witness, including bias, prior inconsistent statements, and character for truthfulness.
- Distinguish between impeachment by contradiction and other forms of impeachment.
- Apply the rules on the use of extrinsic evidence for impeachment.
- Identify when and how a witness may be rehabilitated after impeachment.
- Understand the limits on bolstering a witness’s credibility before impeachment.
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.
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Which of the following is NOT a proper ground for impeaching a witness?
- Bias or interest
- Prior inconsistent statement
- Prior consistent statement
- Sensory deficiency
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When may extrinsic evidence of a witness’s prior inconsistent statement be introduced?
- Always, regardless of the statement’s importance
- Only if the statement concerns a collateral matter
- Only if the statement concerns a material issue and the witness is given a chance to explain or deny
- Never
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After a witness has been impeached for bias, which of the following is a proper method of rehabilitation?
- Calling a character witness to testify to the witness’s truthfulness
- Introducing a prior consistent statement made before the alleged bias arose
- Introducing evidence of the witness’s prior criminal conviction
- Offering extrinsic evidence of a collateral fact
Introduction
Impeachment, contradiction, and rehabilitation are central to the presentation of evidence at trial. The credibility of witnesses is often challenged, and the rules governing how and when this may occur are tested frequently on the MBE. Understanding these rules is essential for answering questions on witness examination, the use of prior statements, and the limits of extrinsic evidence.
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: Impeachment The process of challenging the credibility of a witness by showing bias, prior inconsistent statements, character for untruthfulness, or other grounds.
Methods of Impeachment
The principal methods of impeachment are:
- Showing bias or interest (e.g., relationship to a party, financial stake)
- 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
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.
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.
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.
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 or good character for truthfulness.
Main Methods of Rehabilitation
- Introducing a prior consistent statement made before the alleged motive to lie or bias arose (if impeachment was by bias or prior inconsistent statement)
- Calling a character witness to testify to the witness’s good reputation or opinion for truthfulness (if impeachment was by character attack)
- Allowing the witness to explain or clarify the circumstances of the impeachment on redirect examination
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, and the witness is given an opportunity to explain or deny the statement.
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 lawsuit) arose.
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.
Revision Tip
If a question asks whether extrinsic evidence is admissible to impeach, first determine whether the impeachment concerns a material issue or a collateral matter.
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.
- Main impeachment methods: bias, prior inconsistent statements, character, convictions, specific acts, sensory deficiencies.
- Extrinsic evidence is allowed only for material issues, not collateral matters or specific acts (other than convictions).
- Contradiction by extrinsic evidence is not permitted for collateral matters.
- Rehabilitation is allowed only after impeachment and must directly address the type of impeachment.
- Prior consistent statements may rehabilitate 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
- Prior Inconsistent Statement
- Collateral Matter
- Extrinsic Evidence
- Rehabilitation
