Impeaching Witnesses in Federal and Texas Criminal Cases

Assoc. Prof. Eric Porterfield, UNT Dallas College of Law examination reasonably calculated to expose a motive, bias, or interest for the witness to testify.”

Carroll v. State, 916 S.W. 2d 494, 497 (Tex. Crim. App. 1996).

Texas courts, however, impose procedural hurdles on admitting extrinsic evidence of bias. Rule 613(b) provides:

(b) Witness’s Bias or Interest.

(1) Foundation Requirement. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement whether oral or written to prove the witness’s bias or interest, a party must tell the witness:

(A) the contents of the statement;

(B) the time and place of the statement; and

(C) the person to whom the statement was made.

(2) Need Not Show Written Statement. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest. And the witness’s proponent may present evidence to rebut the charge of bias or interest.

(4) Extrinsic Evidence. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it.

Unlike Federal practice, a witness must be told the circumstances or statements that tend to show the witness’s bias before admitting any extrinsic evidence of bias. The witness must be given the chance to explain or deny the bias or interest but that can come after the witness has testified. The Texas rule applies this predicate for prior statements, regardless of whether they are offered as inconsistent statements or as statements to show bias or interest. The federal rules do not explicitly allow for impeachment for bias or interest. The drafters of the federal rules appear to have believed that impeachment for bias or interest was so fundamental that no explicit rule was required. Although the federal rules do not specify a precise method of impeachment for bias or interest, most federal courts require the impeaching attorney to follow the same steps for impeachment with a prior statement, regardless of whether it is offered as a prior inconsistent statement or to show bias or interest. See Section B, Inconsistent Statement, infra

The following are specific examples of bias or interest that should be admissible to impeach a witness.

• Bias Stemming from Pending Charges or Probationary Status. In Davis v. Alaska, 415 U.S. 308 (1974), the Court held that the defendant should have been allowed to prove that the state's identification witness was on juvenile probation at the time of trial and at the time of the events he testified to. This evidence was admissible, not to generally impeach the witness's