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41. Is the prosecutor's proposed cross-examination proper?
At a defendant's trial for burglary, the defendant has called a witness who has testified without objection that the defendant said shortly after his arrest, «They've got the wrong person for this, because I have an alibi.» The prosecutor seeks to cross- examine the witness about why she did not mention that statement when the police asked her whether the defendant had said anything to her about having an alibi.
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For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Under Federal Rule of Evidence (FRE) 608(b), an inconsistent statement may be proved by either cross-examination or extrinsic evidence. To prove a statement by extrinsic evidence, certain requirements must first be met: (i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case (i.e., cannot be a collateral matter).
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid.
D is correct. The prosecutor's proposed cross-examination regarding the witness's failure to mention the statement to the police earlier is proper impeachment as a prior inconsistent statement. The prosecution is seeking to show that the witness has, on another occasion, made a statement that is inconsistent with what the witness is now claiming at trial. Specifically, the witness indicated that there was no alibi statement to the police when asked, yet now she is claiming that the defendant did claim to have had an alibi. Because the present testimony includes material facts that were omitted in a prior statement, it is considered inconsistent.
A is incorrect. This is an inaccurate statement of the law. A witness's character for truthfulness may be attacked by specific instances of conduct in some circumstances under the FRE. Prior bad acts may be admissible to attack truthfulness of a witness on cross-examination. Here, the witness's prior omission to the police is inconsistent with her in-court testimony, giving rise to proper inquiry into the discrepancy on cross-examination, as stated above.
B is incorrect. It is true that if a matter is collateral, extrinsic evidence of a prior statement will be excluded. However, the issue about the defendant's alibi is material to his defense, not at all collateral or ambiguous.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the proposed cross-examination is proper, it is not impeachment for bias and interest, but rather, as a prior inconsistent statement. The two categories of bias include a special relationship between the witness and the party or a financial interest in the case. There is nothing in the question to suggest a special relationship between the defendant and the witness. Therefore, this would not be proper impeachment by bias evidence.