Impeaching Witnesses in Federal and Texas Criminal Cases

Assoc. Prof. Eric Porterfield, UNT Dallas College of Law

I. Introduction

Witness credibility is a central issue. Impeachment discredits a witness and invites the finder of fact to question the witness’s credibility. The rules of evidence provide many significant limitations on how witnesses may be impeached. Impeachment methods fall into one of five distinct categories with distinct rules: Bias or Interest, Inconsistent Statements, Character, Capacity, and Contradiction, reducible to the mnemonic BICCC. This paper will describe the limits under Federal and Texas law for each category of impeachment and highlight the differences.

II. Who May Impeach?

As an initial matter, there is no limit under either Federal or Texas law as to who may impeach a witness. Any party, including the party calling the witness, may impeach a witness. See Fed. R. Evid. 607; Tex. R. Evid. 607. The two rules are identically worded.

III. Impeachment Methods

The following methods of witness impeachment are available in Federal court and Texas state court.

A. Bias

Bias is some reason, independent of the merits of the case, for the witness to slant or fabricate testimony. Cross examination on a witness’s bias is an important part of the Confrontation Clause in both federal and state criminal prosecutions. Davis v. Alaska, 415 U.S. 308, 317 (1974). “The Confrontation Clause of the Sixth Amendment is satisfied where defense counsel has been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993), cert. denied, 513 U.S. 807 (1994).

Federal courts consider bias an important part of witness credibility. “The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony.” United States v. Landerman, 109 F.3d 1053, 1062 (5th Cir.), opinion modified on reh’g, 116 F.3d 119 (5th Cir. 1997) (internal citations omitted) (“Counsel should be allowed great latitude in cross examining a witness regarding his motivation or incentive to falsify testimony, and this is especially so when cross examining an accomplice or a person cooperating with the Government.”).

Texas courts also consider bias important. “The Court has frequently stated that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him.” Evans v. State, 519 S.W. 2d 868, 871 (Tex. Crim. App. 1975); accord Hilliard v. State, 881 S.W. 2d 917, 922 (Tex. App. Fort Worth 1994, no pet.) (trial court frustrated appellant’s right to effective cross-examination by denying him the right to explore possible bias). “A defendant is entitled to pursue all avenues of cross-