705.3Impeachment: General [Rule 607]

The Basic Rule

Rule 607 – Who May Impeach

G.S. 8C-607.

Although Rule 607 only directly addresses the issue of who may impeach a witness, this entry also discusses the methods and purposes of impeachment in general.

Legal Overview

Rule 607 allows the credibility of any witness to be attacked by the state or the defense, even if the witness was called to testify by that party. See State v. Williams, 341 N.C. 1 (1995) (state was properly permitted to impeach its own witness with prior inconsistent statement where state was surprised by the state witness’s testimony at trial); State v. Banks, 210 N.C. App. 30 (2011) (not error to allow state to impeach its witness when she claimed not to remember what she had said and trial judge gave limiting instruction); State v. Minter, 111 N.C. App. 40 (1993) (proper to impeach witness with transcribed grand jury testimony).

The adoption of Rule 607 eliminated the old “voucher” rule, which prohibited a party from impeaching its own witness under the theory that, by calling the witness, the party was necessarily vouching for that witness’s credibility. See State v. Hyleman, 324 N.C. 506 (1989); State v. Williams, 322 N.C. 452 (1989).

The witness may be confronted and challenged on the subject of the impeachment, and “extrinsic evidence” (evidence other than the witness’s own testimony, such as printed documents or testimony from another witness) is allowed for many types of impeachment, subject to the trial judge’s discretion, as long as the issue is relevant and material to the underlying case and not merely a “collateral matter.” See generally State v. Whitley, 311 N.C. 656 (1984); State v. Jacobs, 174 N.C. App. 1 (2005); State v. Riccard, 142 N.C. App. 298 (2001); State v. Jarrells, 98 N.C. App. 318 (1990).

Types of Impeachment

The purpose of impeachment is to “reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony.” State v. Ward, 338 N.C. 64 (1994), quoting State v. Looney, 294 N.C. 1 (1978). A witness’s credibility may be challenged by “any circumstance tending to show a defect in the witness's perception, memory, narration or veracity.” Id. Several of the most common methods of impeachment are summarized below.

Bias

A witness may be impeached with evidence of bias, and “much latitude is allowed in showing the bias, hostility or other interest of a witness with respect to the case.” State v. Alston, 17 N.C. App. 712 (1973). This type of impeachment covers a wide range of possible factors, influences, and motivations that may undermine the credibility of a witness’s testimony. See, e.g., State v. Bullock, 154 N.C. App. 234 (2002) (proper to cross-examine defense witness about a prior altercation she had with the victim); State v. Lawrence, 352 N.C. 1 (2000) (proper to cross-examine defense expert about being paid to testify, even if expert was paid with state funds); State v. Hoffman, 349 N.C. 167 (1998) (defense should have been allowed to cross-examine state’s witness about pending criminal charges).

Extrinsic evidence may be used to prove bias, but the party must first bring the evidence to the attention of the witness. See State v. Lytch, 142 N.C. App. 576 (2001). If the witness denies it, the party may impeach with extrinsic evidence; if the witness admits it, the court must exercise its discretion on whether to allow the extrinsic evidence. See State v. Whitley, 311 N.C. 656 (1984).

Contrary Evidence

A party may use contrary evidence (including extrinsic evidence) to impeach a witness’s testimony about a material fact by showing that the witness’s testimony is factually incorrect. See, e.g., State v. Lambert, 341 N.C. 36 (1995) (in murder case, extrinsic evidence about marital problems between defendant and his wife was properly admitted to impeach defendant’s testimony that the marriage was “fine” and “excellent”); State v. Bell, 338 N.C. 363 (1994) (cross-examination of witness about his prior involvement with illegal drugs was permissible as a response to his testimony on direct that he had been “lured” into drug use: “on cross-examination, the State was attempting to show that David was already deeply involved in the drug scene and that defendant was aware of this involvement”); State v. Springer, 83 N.C. App. 657 (1986) (after defense witness gave testimony tending to support defendant's claim of self-defense, prosecutor was properly allowed to elicit testimony from witness that he had obtained warrant against defendant for assaulting the witness with shotgun on the same day that defendant assaulted victim).

Inability to Observe or Remember

A witness may be impeached (including by extrinsic evidence) with evidence showing that the witness was unable to see, hear, understand, remember, or accurately recount the matter about which the witness is testifying. See, e.g., State v. Whaley, 362 N.C. 156 (2008) (error not to allow cross-examination about witness’s counseling and treatment, including statements she made on an intake form admitting that she heard voices and had difficulty remembering and distinguishing reality from dreams); State v. Williams, 330 N.C. 711 (1992) (evidence of witness’s drug use, suicide attempts, and psychiatric history was proper and admissible for impeachment).

Impeachment Covered by Other Rules of Evidence

1. Character and Conduct
   For more information on impeaching a witness’s character, such as the witness’s character for truthfulness, see the related Evidence entry on Impeaching Character and Conduct [Rule 608].
2. Prior Conviction
   For more information on impeaching a witness with evidence of conviction of a crime, see the related Evidence entry on Impeachment by Prior Conviction [Rule 609].
3. Religious Beliefs
   For more information on impeaching a witness regarding his or her religious beliefs, see the related Evidence entry on Religious Beliefs or Opinions [Rule 610].
4. Prior Statement
   For more information on impeaching a witness with or about a prior statement, see the related Evidence entry on Prior Statements of Witnesses [Rule 613].
5. Defendant’s Silence
   For more information on impeaching the defendant (when he or she testifies as a witness) regarding the defendant’s pre-trial silence, see the related Trial entry on Cross-Examination (Section E., Cross-Examining Defendant About Pretrial Silence).

Limitations on Impeachment

Good Faith Basis

The party impeaching the witness must have a “good faith basis” for making the impeachment. See, e.g., State v. Wilson, 335 N.C. 220 (1993) (prosecutor had a good faith basis for asking witness if defendant paid her to testify, based on information that witness had previously sold drugs for the defendant, and witness was unemployed and living at defendant’s house); State v. Atkins, 349 N.C. 62 (1998) (state had good faith basis to challenge defense expert’s bias, based on documentation of compensation paid to expert by the defense).

Subterfuge

Impeachment may not be used as a subterfuge to present evidence that would otherwise be inadmissible; in other words, a party may not impeach its own witness if the party knew beforehand that the witness would testify in a manner making him subject to such impeachment. See, e.g., State v. Hunt, 324 N.C. 343 (1989) (state may not impeach its witness with prior inconsistent statements when the state knew, before calling the witness, that the witness had recanted the prior statements). See also State v. Lanier, 165 N.C. App. 337 (2004) (better practice is for a trial court to make findings of fact regarding circumstances indicating absence of subterfuge before allowing impeachment of a witness by the party that called the witness).

Prejudice, Confusion or Delay

Rule 403 allows the trial judge to exercise his or her discretion to limit the admissibility of otherwise relevant evidence (including impeachment evidence) if it would be unfairly prejudicial, misleading, confusing, or wasteful of time. See, e.g., State v. Whaley, 362 N.C. 156 (2008) (finding exclusion was error in this case, but explaining that “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility. […] However, such evidence may nonetheless be excluded under Rule 403 if the trial court determines “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”) (internal citations omitted); State v. McNeil, 350 N.C. 657 (1999) (“further cross-examination relating to Penny's unserved assault warrants to show alleged bias or motive would be repetitive and cumulative of the evidence already presented”); State v. Hunt, 324 N.C. 343 (1989) (trial court properly applied Rule 403 “to balance the impeachment value of the statements against their tendency to prejudice defendant unfairly or to confuse the jury.”); State v. Howie, 310 N.C. 613 (1984) (excluded evidence of witness' indictment for an unrelated robbery was cumulative because witness' “potential bias was fully explored”).

See also G.S. 8C-611 (court shall exercise reasonable control over the examination of witnesses and presentation of evidence to achieve effective ascertainment of the truth, avoid waste of time, and protect witnesses from undue harassment and embarrassment).

One exception to this limitation is when a party seeks to impeach a witness with a prior conviction that is less than 10 years old. Since Rule 609 states that evidence of such convictions “shall” be admitted on cross-examination for the purpose of attacking credibility, the court may not engage in a Rule 403 balancing determination to limit the admissibility of that impeachment evidence. See State v. Brown, 357 N.C. 382 (2003). 

Defendant’s Right to Present Evidence

Notwithstanding the general limitations on impeachment discussed above, cross-examination of a witness must not be restricted in such a way that it deprives the defendant of a “major defense.” Compare State v. Whaley, 362 N.C. 156 (2008) (where state’s case depended heavily on victim’s testimony, it was prejudicial error to bar defense from cross-examining victim about her mental health and memory problems because it denied the defendant a major defense) with State v. Triplett, 368 N.C. 172 (2015) (reversing court of appeals, finding that barring defense from cross-examining a witness about a voicemail purportedly showing bias was not an abuse of discretion where the probative value of the impeachment was weak, risked confusing the issues, and the witness was not critical to the state’s case).