Under the law of evidence, witness impeachment is the process of calling into question the credibility of a person serving as a witness. Federal Rules of Evidence (FRE) govern witness testimony in Federal courts. State Rules of Evidence govern witness testimony in state courts.
State laws are based on the common law of England, except for Louisiana, where the law is based on French law, which comes from Roman law. Common law remains in effect, except where it has been revised or replaced by enacted legislation or court case law. In Colorado, the Common Law of England was adopted in 1861 when Colorado Territory was formed.
An eyewitness may be called to serve as a fact witness. A fact witness may testify about what he/she personally observed by the use of his/her senses (sight, sound, taste, touch, smell).
Traditional common law prohibits any manner of compensation to a fact witness.
A party may discredit a witness by evidence that impeaches the credibility of the witness. There are several categories that may be used for witness impeachment.
A witness may be impeached due to bias that may taint the testimony, including a relationship by blood or marriage, loyalty, affiliation, prejudice, religious beliefs or opinions, or a financial interest, tip, gift, bribe, favor or other benefit from a transaction or the outcome in a court case.
A witness may also be biased due to fear, threats or intimidation.
2. Inconsistent statement
Witness impeachment may occur when prior statements, made under penalty of perjury, are inconsistent with current statements made by the witness.
If a witness makes contradictory statements during testimony, the credibility may be impeached.
Lack of mental capacity is another way to impeach a witness. Or, evidence that the senses of the witness were obstructed or impaired, such as hearing or vision problems, or a witness who was intoxicated.
Witness impeachment may occur by demonstrating “bad” character regarding truthfulness. The witness may have a reputation as a liar, or a prior conviction of a crime involving dishonesty or false statement.
If a witness is required to sign a document, it is wise to choose an honest, credible, competent witness, with no financial or beneficial interest, to avoid any appearance of bias, impropriety or risk witness impeachment. The motivation of the witness must be to tell the truth, not personal gain.
A notary must be a neutral, impartial witness to a notarized document or notarial act, and may receive the notary fees allowed by law. A notary is not responsible for locating a witness if needed to sign a document. The customer should locate a witness, if needed.
[Disclaimer: This article is for educational use only and shall not be used or considered as legal advice. Read the Federal and state laws and Rules of Evidence. For legal advice, consult with a licensed, competent attorney.]
Colorado Notary Training teaches required elements to help the notary avoid errors and omissions and provide good customer service to the public.