21. If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit?

At a defendant's trial for a gang-related murder, the prosecution introduced, as former testimony, a statement by a gang member who testified against the defendant at a preliminary hearing and has now invoked his privilege against self-incrimination.

Evidence that the gang member had three misdemeanor convictions for assault
Testimony by a psychologist that persons with the gang member’s background have a tendency to fabricate
Testimony by a witness that, at the time the gang member testified, the gang member was challenging the defendant’s leadership role in the gang
Testimony by a witness that the gang member is a cocaine dealer

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C is correct. This is evidence of «bias.» It shows that the declarant had a motive to implicate the defendant falsely, because by doing so he would remove the defendant from the position that he wanted to have. Evidence of bias is considered important and, generally speaking, it is liberally admitted. Note that the gang member can be impeached even though he is not at trial to testify. Federal Rule of Evidence (FRE) 806 allows parties to impeach a hearsay declarant in the same ways that would be permitted if the declarant were to testify. This is because a hearsay declarant is essentially a witness in the case.

A is incorrect. Under FRE 609(a)(2), misdemeanor convictions are not admissible to impeach a witness unless they involved dishonesty or a false statement. Assault convictions do not involve dishonesty or false statement. If the misdemeanor convictions had been for, say, lying to a government official, then they would have been admissible to impeach the declarant.

B is incorrect. Expert testimony on credibility is usually found inadmissible because credibility issues are for the jury, not for an expert. There have been a few cases in which expert testimony on credibility has been permitted, but the question asks for the most likely evidence to be admitted, and this is not the best answer.

D is incorrect. This is «bad act» evidence and to be admissible to impeach a witness under FRE 608, it must tend to prove that the witness is an untruthful person. If its probative value is substantially outweighed by the risk of prejudice, confusion, and delay, then it must be excluded under FRE 403. Courts have ruled that evidence of drug activity is only minimally probative of truthfulness, and therefore is usually inadmissible to impeach the witness. While it is probably within the trial court's discretion to admit this evidence in some cases, the question asks for the most likely evidence to be admitted, and this is not the best answer. Additionally, impeachment by prior bad acts may not be proved up by extrinsic evidence.

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