Seventh Circuit Highlights Five Forms Of Impeachment

Seal of the Seventh Circuit Court of Appeals Useful decision canvasses and distinguishes the common forms of impeachment, including by “(1) attacking the witness’s general character for truthfulness; (2) showing that, prior to trial, the witness has made statements inconsistent with his testimony; (3) showing that the witness is biased; (4) showing that the witness has an impaired capacity to perceive, recall, or relate the event about which he is testifying; and (5) contradicting the substance of the witness’s testimony,” in United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (No. 96-1188)

There are various ways to impeach a witness. A recent Seventh Circuit case cited to an earlier opinion noting five forms of impeachment. See United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996) (cited in Serafinn v. Local 722, __ F.3d __ (7th Cir. 2010) Since the Seventh Circuit recently noted this case, what lessons does Lindemann hold?

The Lindemann case involved a wire fraud scheme to obtain life insurance proceeds after the death of a horse was arranged. At trial, the government called a cooperating witness. On cross-examination, the defense attached the credibility of the cooperator “by suggesting that he would not have gotten a plea deal if he hadn’t come up with the name of a ‘big fish’ like Lindemann.” Lindemann, 85 F.3d at 1242. On redirect examination, the government elicited that the witness provided information on some 30 people that the witness had killed horses for. On appeal, following the defendant’s conviction, he claimed this redirect examination unfairly bolstered the testimony of the witness.

The Seventh Circuit rejected the defense argument. The circuit distinguished bolstering from bias:

“‘Bolstering’ is the practice of offering evidence solely for the purpose of enhancing a witness’s credibility before that credibility is attacked. Such evidence is inadmissible because it “has the potential for extending the length of trials enormously, ... asks the jury to take the witness’s testimony on faith, ... and may … reduce the care with which jurors listen for inconsistencies and other signs of falsehood or inaccuracy. United States v. LeFevour, 798 F.2d 977, 983 (7th Cir. 1986).”

Lindemann, 85 F.3d at 1242. In contrast:

“Bias is the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. United States v. Abel, 469 U.S. 45, 53 (1984).

Lindemann, 85 F.3d at 1243. The defense could challenge the credibility of the cooperator by suggesting under his plea agreement he wanted the best deal possible. The redirect examination was relevant on the issue of bias and to rehabilitate the cooperating witness.

In addressing the issue, the Seventh Circuit noted five forms of impeachment:

“Bias is one of the five acceptable methods of attacking the credibility of a witness’s testimony: (1) attacking the witness’s general character for truthfulness; (2) showing that, prior to trial, the witness has made statements inconsistent with his testimony; (3) showing that the witness is biased; (4) showing that the witness has an impaired capacity to perceive, recall, or relate the event about which he is testifying; and (5) contradicting the substance of the witness’s testimony. Wright & Gold, Federal Practice and Procedure § 6094 (1990).”

Lindemann, 85 F.3d at 1243. The circuit clarified that two rules of evidence specifically focused on bolstering or rehabilitation, including a prior inconsistent statement, under FRE 801(d)(1)(B), or a witness’s character for truthfulness, under FRE 608(b). While not specific rules covered the “admissibility of evidence regarding a witness’s bias, diminished capacity, and contradictions in his testimony,” standards of relevance under FRE 401 and FRE 402 applied. FRE 608 did not apply because the impeachment was based on bias and not the character of the witness for truthfulness. As the circuit summed up the issue:

“In conclusion, because Lindemann attacked the credibility of Burns’ testimony by asserting that Burns had a bias in Lindemann’s case, the government was permitted to rebut that assertion by introducing evidence of its own. Furthermore, because that evidence was relevant according to Fed. R. Evid. 402, the district court’s decision to admit it was not an abuse of discretion.”

Lindemann, 85 F.3d at 1244.

Actually, one rule that was not cited is FRE 609, which also expressly provides for attacking the credibility of a witness, specifically by evidence of conviction of a crime, where the requirements of the rule are met. The Lindemann case provides a useful reference to distinguish between the various forms of impeachment.

Federal Rules of Evidence
PDF