Evidence: Testimonial Evidence: Witnesses: Impeachment: Bad Acts -- Specific Instances of Misconduct

  • Bad Acts—Specific Instances of Misconduct
      • Federal Rule: A witness may be asked on cross examination about prior bad acts if those acts relate to truthfulness. They don't have to be criminal. The examiner must inquire in good faith.
      • Extrinsic Evidence Not Permitted: Extrinsic evidence of "bad acts" to prove misconduct is not permitted. The bad act may be proven only by intrinsic evidence (elicited only on cross examination of the witness); and the cross-examiner is stuck with the witness's answer.

**Exam Tip** Asking about specific instances of misconduct does not include asking about arrests. An arrest itself is not a bad act. Thus, it is permissible to ask a witness whether he embezzled money from his employer. It is not permissible to ask whether he was arrested for embezzlement.

**Exam Tip** Proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose—such as showing proof of bias.