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49. How should the judge rule on the prosecutor's objection?
Thereafter, the defendant seeks to call the bartender from the nightclub to testify that the eyewitness had consumed a large amount of alcohol before the shooting and that the music in the nightclub at the time of the shooting was extremely loud. The prosecutor objects that the bartender's testimony would be improper impeachment.
A defendant is charged with murder after allegedly shooting a victim during an argument in a crowded nightclub. At trial, the defendant claims self-defense, testifying that he shot the victim only after the victim lunged at him with a knife. In rebuttal, the prosecutor calls an eyewitness to testify that she observed the argument from a short distance away and that she heard a gunshot before the victim lunged at the defendant.
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B is incorrect. Although courts are cautious about allowing a witness's general alcohol use or alcoholism to be used to impeach, it is permissible when it is connected directly to the time of the witness's observation. Here, the eyewitness's consumption of large amounts of alcohol just before she observed the incident in question would undermine her ability to perceive. Therefore, evidence about that consumption would constitute proper impeachment.
C is incorrect. The testimony about the music would be proper impeachment evidence. The eyewitness reported that she heard a gunshot, and very loud music in a crowded nightclub could affect a person's ability to perceive such a sound.
D is incorrect. Extrinsic evidence may be admitted to impeach a witness's ability to perceive. However, under Federal Rule of Evidence 608(b), such evidence is not admissible to prove a witness's prior acts of dishonesty. The evidence here relates to the eyewitness's ability to perceive accurately and not to any prior acts of dishonesty. Both items of extrinsic evidence should be admitted.