Black-letter propositions
- 01
Bias, interest, motive, incapacity, and qualifying contradiction may permit extrinsic proof.
- 02
Reputation or opinion for untruthfulness is allowed; truthful character becomes admissible only after attack.
- 03
On cross, the court may allow specific dishonest acts probative of truthfulness, but extrinsic proof is barred for that character purpose.
- 04
Felony convictions and crimes involving dishonest act use separate admissibility, balancing, and timing rules.
- 05
Prior inconsistent statements impeach and are substantive when sworn at a trial, hearing, proceeding, or deposition.
- 06
Qualifying prior consistent statements and prior identifications can be substantive when the witness testifies and is subject to cross.
Use this attack sequence under time
Frame the issue
Name the credibility theory.
Resolve the next checkpoint
Choose method and determine whether extrinsic proof is allowed.
Resolve the next checkpoint
Lay foundation and apply conviction rules.
Resolve the next checkpoint
Separate impeachment from substantive use.
Finish the conclusion
Rehabilitate only the attack made.
Common wrong turns
- Arrest is not conviction.
- Extrinsic proof of a collateral contradiction is generally barred.
- A prior consistent statement is not admissible merely because inconsistency was shown.
Worked example
A witness denies receiving payment from a party, but bank records prove the payment.
Payment shows bias, a noncollateral theory. Extrinsic proof is generally allowed after appropriate examination because the purpose is not merely character for dishonesty.
Practice this topic
Who may impeach, and how
Rule 607 says any party, including the party that called the witness, may attack the witness's credibility. Rule 608(a) allows reputation or opinion testimony about truthful or untruthful character, but evidence of truthful character is admissible only after that character has been attacked. Rule 608(b) says extrinsic evidence is not admissible to prove specific instances of conduct to attack or support truthfulness, though the court may allow inquiry on cross-examination if probative of truthfulness.
Rule 609 governs convictions. A crime punishable by death or more than one year's imprisonment must be admitted, subject to Rule 403, in a civil case or a criminal case where the witness is not the defendant. It must be admitted against a testifying defendant only if probative value outweighs prejudicial effect. Any crime requiring proof or admission of a dishonest act or false statement must be admitted.
Time limits and prior inconsistent statements
Rule 609(b) adds a limit once more than 10 years have passed since the conviction or release: the conviction is admissible only if its probative value, supported by specific facts, substantially outweighs its prejudicial effect and the proponent gives reasonable written notice. Rule 613(b) says extrinsic evidence of a prior inconsistent statement may not be admitted until the witness has had an opportunity to explain or deny it, and this does not apply to an opposing party's statement under Rule 801(d)(2).
Frequently asked questions
What is the controlling rule for bias, contradiction, truthfulness, convictions, and prior statements?+
Impeachment requires a defined credibility theory, a permitted method, and correct treatment of extrinsic evidence and substantive use.
How should I analyze bias, contradiction, truthfulness, convictions, and prior statements on the bar exam?+
Name the credibility theory. Lay foundation and apply conviction rules. Separate impeachment from substantive use. Rehabilitate only the attack made.
When is evidence of truthful character admissible?+
Only after the witness's character for truthfulness has been attacked, according to Rule 608(a).
Can I prove a specific lie with extrinsic evidence?+
Generally no. Rule 608(b) bars extrinsic evidence of specific instances of conduct to attack or support truthfulness, though the court may allow inquiry on cross-examination.
Which convictions may impeach under Rule 609?+
Crimes punishable by death or more than one year in prison, subject to balancing, and any crime whose elements required proving or admitting a dishonest act or false statement.
What is the 10-year rule for convictions?+
Once more than 10 years have passed since conviction or release, Rule 609(b) allows the conviction only if probative value substantially outweighs prejudicial effect and reasonable written notice is given.