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Impeachment and Rehabilitation - Chapter 8 - Fundamentals of Texas Trial Practice - 3rd Edition

Author: Robert R. Barton
Page Count: 22
Published: July 2009
Media Desc: PDF from "Fundamentals of Texas Trial Practice - 3rd Edition"
File Size: 102 KB

 Originally from: Fundamentals of Texas Trial Practice - 3rd Edition - Electronic

Chapter 8  - Preview Page
Robert R. Barton
§ 8.01.1. Meaning
Impeachment is an attack on credibility. It involves a subject and a technique usually employed on cross-examination to discredit testimony given by an opposing witness on direct examination, or to discredit the witness who gave the testimony. Refreshing recollection is not a technique for discrediting an opposing witness’s testimony on cross-examination. It is a technique for accrediting your own forgetful
witness during direct examination. The rule, then, is refresh the recollection of your witnesses, and impeach the credibility of opposing witnesses. Even if an opposing witness might admit that a prior statement is correct and his or her trial testimony is incorrect, that admission should be achieved by impeaching the witness with the prior inconsistent statement, rather than by attempting to refresh the recollection of the witness with the prior statement.
Two forms of attack may be made on credibility: (1) an attack upon the testimony to show that the testimony is not reliable, and (2) an attack upon the witness to show that he or she  is a person who is not a reliable source of evidence.
There are two types of impeachment: (1) intrinsic, i.e., the witness admits the impeaching fact on cross-examination, and (2) extrinsic, i.e., evidence of the impeaching fact is presented from a source other than the cross-examined witness.


Table of Contents

     8.01. IMPEACHMENT
     8.01.1. Meaning
     8.01.2. Requirements
                 (a) Good Faith
                 (b) Raise on Cross-Examination
                 (c) Extrinsic Evidence of Noncollateral Fact
                 (d) When Extrinsic Evidence May Be Presented
     8.01.3. Fundamental Considerations
                 (a) Determine Need
                 (b) Focus on Mistakes
                 (c) Get Favorable Testimony First
     8.01.4. Bases of Impeachment
                 (a) Impaired Perception or Recall
                 (b) Bias or Interest
                 (c) Prior Conviction
                 (d) Prior Bad Acts
                 (e) Prior Inconsistent Statements
                 (1) Suggested Technique
                 (2) Forms of Prior Inconsistent Statements
                 (a) Oral
                 (b) Written
                 (c) Pleadings and Discovery of Party Witness
                 (d) Prior Testimony of Witness
                 (f) Omissions
                 (g) Reputation or Opinion Testimony of Character
                 (h) Impeachment of Expert With Learned Treatise
                 (i) Impeachment by Contradiction
                 (j) Impeachment by Prior Inconsistent Conduct
     8.01.5. Extrinsic Evidence of Impeaching Fact
     8.02.1. Have Witness Give Explanation
     8.02.2. Prior Consistent Statement
     8.02.3. "Rule of Completeness"
     8.02.4. Character Evidence for Truthfulness
     8.02.5. Avoid Bolstering

Author Detail

  About the Author: 
Judge Robert R. Barton 
 is a Senior District Court Judge in both Civil and Criminal cases and retired Hardy Professor of Trial Advocacy at St. Mary’s University School of Law. Judge Barton was a civil trial attorney and prosecutor for sixteen years, a District Judge for twelve years, Professor of law at St. Mary’s for nine years, including six years as the Hardy Professor of Trial Advocacy. He is the author of Texas Rules of Evidence Manual (8th Ed.) and the author of Texas Search and Seizure (5th Ed., 2009).

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