Bar Exam — MBE (Multistate Bar Exam)EvidenceMedium
In a civil trial for negligence, the plaintiff's attorney calls a witness to testify. On direct examination, the witness states that she saw the defendant's car swerve erratically before the accident. On cross-examination, the defendant's attorney asks, 'Isn't it true that you wear corrective lenses, but you weren't wearing them on the day of the accident?' The plaintiff's attorney objects. How should the court rule?
- ASustained, because the question is irrelevant to the witness's credibility.
- BOverruled, because it constitutes impeachment by prior inconsistent statement.
- COverruled, because the question relates to the witness's capacity to perceive.
- DSustained, because this is improper impeachment by specific instances of conduct.
Show answer & explanationAnswer & explanation
Correct answer: C. Overruled, because the question relates to the witness's capacity to perceive.
Questions challenging a witness's ability to perceive the events they are testifying about are always proper on cross-examination. This goes to the foundation of their testimony and affects the weight the jury should give it.
Why the other options are wrong
- A. The ability to see clearly is highly relevant to the credibility of a witness testifying about what they saw.
- B. There is no prior inconsistent statement mentioned; the question challenges perception, not a previous statement.
- D. This is not impeachment by specific instances of conduct under FRE 608(b); it directly questions the witness's sensory capacity.
Impeachment by Contradiction/Perception
A witness's credibility can be attacked by showing their testimony is inconsistent with other evidence (contradiction) or by questioning their ability to perceive, remember, or relate the events accurately.
- Contradiction: Introducing evidence that directly disproves a witness's testimony.
- Perception: Questions or evidence challenging a witness's sensory capacities (e.g., eyesight, hearing, mental state).
- Memory: Questions or evidence challenging a witness's ability to recall events accurately.
- These methods directly attack the accuracy of the witness's testimony, not necessarily their character for truthfulness.
Memory trick: A Witness's Credibility Can Be Doubted By Many Methods.