Team Presentations - Law 16 - Spring 2015

Impeachment Case

 Read the excerpt below from the U.S. v. Murray case below and summarize what legal principle you learned from that case.

From the authors of our textbook:

"This chapter (on Impeachment) introduced the notion that a witness’s character for truthfulness may be impeached with either reputation or opinion testimony. However, an opinion without basis in personal knowledge is inadmissible as incompetent testimony. Ordinarily, the witness must be able to testify about how long they’ve known the witness and under what circumstances, and provide other general information about their knowledge of the witness and his or her character for truthfulness. The following case goes a little farther in establishing a foundation for such an opinion."

U.S. v. McMurray 420 F.2d 831 (8th Cir., 1994)

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McMurray…argues that the district court erred in allowing the governments’ rebuttal witness, Marjorie Carper, to express a negative opinion as to McMurray’s truthfulness after he had testified in his own behalf at trial. We disagree. The credibility of a defendant who testifies may be attacked in the same manner as that of any other witness. [citations] Fed.R.Evid. 608(a) expressly provides that “[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion…[that] refer[s] only to character for truthfulness.” Rule 608(a) allows opinion as well as reputation testimony because “witnesses who testify to reputation seem in fact often to be giving their opinions, disguised somewhat misleadingly as reputation.” [citations] The prosecutor asked Mrs. Carper whether she would believe McMurray’s testimony under oath, based upon her opinion as to his truthfulness. The questioning is consistent with Rule 608(b). [citations] Of course, before a witness may express such an opinion, there must be an adequate showing “that the opinions were more than bare assertions.” [citations] That is a question committed to the trial court’s discretion.

In this case, Mrs. Carper testified that McMurray had persuaded her to apply for a credit card in his name so that he could buy Christmas presents for his children, after which McMurray and his wife charged large travel and other expenses to the card that Mrs. Carper eventually was forced to pay. We agree with the district court that Mrs. Carper had sufficient dealing to provide a rational basis for her opinion as to McMurray’s truthfulness.

* * * Note that under the facts of this case, had prosecution called Mrs. Carper specifically to ask about her experience with Mr. McMurray and the credit card, this evidence would have been excluded pursuant to FRE 608(b). Had the prosecutor asked the defendant about his dealings with Mrs. Carper pursuant to 608(b) for impeachment purposes under cross-examination, the prosecution would not have been able to call Mrs. Carper as a witness to rebut any denial made by defendant. This would be extrinsic and inadmissible.

However, by being called as a character witness, Mrs. Carper was able to testify as to her opinion of defendant’s veracity, and she was allowed to support her opinion by testifying about the past encounter with the credit card. In other words, evidence of the past conduct wasn’t admitted to prove the defendant’s lack of veracity. It was admitted to prove that Ms. Carper had a basis for her opinion regarding the defendant’s veracity. This was an unusual result, (and one not usually allowed by the court) but of interest to the paralegal who may be interviewing witnesses who will provide impeachment evidence.

Now post your work.