CHAPTER 7 "IMPEACHMENT"
I. THE ROLE OF IMPEACHMENT
Impeachment is the act of discrediting a witness as a reliable source of information on cross examination. Successful impeachment renders the witness less worthy of belief, as opposed to merely unobservant, mistaken, or otherwise subject to contradiction.
Contrary to popular belief, the clouds will not part and lightning will not strike when you impeach a witness, nor is the witness likely to give up and admit that you were right all along. If you play your cards right, though, the effect of your impeachment will be felt during your closing argument. Closing argument is your opportunity to argue that the fact-finder should disregard the impeached witness’s testimony because she is not credible.
We will focus on impeachment by “prior inconsistent statement,” impeachment by “omission,” and impeachment through the use of character and case-specific motive evidence in this chapter.
Impeachment by prior inconsistent statement is performed when a witness’s testimony at trial is different from, and conflicts with, the information included in his prior sworn statement. For example, say that a defendant in a hit-and-run case takes the stand and testifies during his direct examination that the traffic light was green at the time of the accident. Upon hearing this, opposing counsel remembers that in his statement the defendant said the traffic light was red when the accident occurred. This situation calls for impeachment by prior inconsistent statement.
Impeachment by omission is conducted when a witness adds important facts at trial that were not included in his prior statement. To illustrate, imagine that the witness in the example above did not include the color of the traffic light in his prior sworn testimony but then he added it during his direct examination. The cross examiner will want to point out that omission through impeachment.
In both cases, the inconsistency demonstrates that the witness’s current testimony is at odds with his previous testimony. In essence, these forms of impeachment assert, “Do not believe this witness because his story has changed.”
The third and fourth methods of impeachment use a witness’s character or traits of his character to show that he should not be believed. This form of impeachment is aimed at demonstrating that the witness possesses some trait or characteristic that renders his testimony less credible. Perhaps the witness is a convicted felon or suffers a memory deficit. This examination says, “This witness is not trustworthy on any matter, because of who he is.” It is likewise impeaching to use case-specific motive evidence to establish that the witness is not reliable in the context of the case at trial. For example, a witness might have a financial interest in the outcome of the case or might be prejudiced against one of the parties.
II. THE RULES OF IMPEACHMENT
Impeachment is a powerful tool. Unlike “standard” cross examination, which may rely on unspoken premises and subtle misdirection, there should be no mistaking or hiding the intended impact of impeachment. Impeachment is inherently confrontational; it challenges the witness’s believability, perhaps even her veracity. For this reason it is best to follow the below rules when considering whether to impeach a witness.
A. Impeach Only on Significant Matters
It is important to avoid impeaching witnesses on irrelevant, trivial, or petty inconsistencies. If the “punch line” fails to justify the buildup, the results can be embarrassing or damaging to your case. Imagine this scenario where the plaintiff in our fire truck case is being cross examined:
QUESTION: You testified on direct examination that you saw the flashing lights
and then realized that there was a fire truck behind you and so you
slowed down, correct?
ANSWER: Correct.
QUESTION: You have given an earlier statement?
ANSWER: Why, yes I did.
QUESTION: You spoke to the investigating officer?
ANSWER: That is right.
QUESTION: You knew that you had to be truthful with the police officer?
ANSWER: Of course.
QUESTION: Didn’t your earlier statement say, “I realized that there was a fire truck
behind me saw its flashing lights, which caused me to slow down
at once”?
ANSWER: Yes, I believe that is what I said.
Although the plaintiff has, in some technical sense, been impeached, the inconsistency involved is so slight as to be inconsequential. What difference does it make what triggered the witness to first realize there was a fire truck behind her? The essential point – that the fire truck was using its warning lights and that traffic slowed down – remains completely intact. The cross examiner, however, has squandered valuable capital by confronting the witness, wasting time, and emerging with nothing to show for those efforts. A jury’s near-certain response would be, “is that all you can do?” A judge’s response would be even less charitable.
This principle of significance also applies to impeachment by omission. The test of whether a “surprise” fact is important enough to point out through impeachment is whether it makes it more or less likely that your client will prevail.
B. Impeach Only on Actual Inconsistencies
The purpose of impeachment through the use of a prior inconsistency is to show that the witness has made contradictory statements. The technique works only when the two statements cannot both be true. If the two statements can be harmonized, explained, or rationalized, the impeachment will fail. For example:
QUESTION: You testified on direct that the bank robbers drove away in a blue
sedan, correct?
ANSWER: Yes.
QUESTION: You gave a statement to the police right after the robbery, didn’t you?
ANSWER: Yes, I did.
QUESTION: You told the police that the robbers drove off in a turquoise sedan,
didn’t you?
Although different words were used, the two statements are not inconsistent. It does not detract from the witness’s credibility that she once referred to the car as turquoise and that she later called it blue.
C. Be Sure of Success before Beginning
Failed impeachment can be disastrous. A lawyer who begins an assault that cannot be completed will look ineffective at best and foolishly overbearing at worst. Because of this, be absolutely sure you can prove up an impeachment before you begin it.
If you are impeaching a witness by prior inconsistent statement, you will know whether you can prove up an impeachment with each question you ask. You will know because most of the questions you ask should be taken directly from the witness’s statement and will be referenced to the page and line number therein. Still, do not begin your impeachment until you have the statement in hand and have located the page and line that contradicts the current testimony.
A smart precautionary measure (and also a good way to demonstrate teamwork in competition) is to involve your co-counsel in this process. Before beginning your cross examination, give a copy of your indexed questions to your co-counsel. Then, when the witness refuses to agree to a question taken directly from his statement, turn toward your co-counsel and await the signal of whether it is safe to proceed. Your co-counsel, who was diligently following along, should nod to you if the question you asked is supported by a reference to the exact page and line number where the information appears in the witness’s statement. Having received the go-ahead, you can walk to your counsel table, retrieve the witness’s statement, and confidently proceed with the impeachment.
D. Do Not Impeach Favorable Information
This should go without saying but there is nothing to be gained by casting doubt on testimony that was helpful to your case. Thus, even if an opposing witness has given a prior inconsistent statement, it should not be used to impeach favorable trial testimony.
Assume that the defendant in the fire truck case testified at trial that immediately after the accident he used his cellular phone to call his office. In contrast, in his affidavit he testified that his first action was to check the damage to his BMW and that he called his office only after making sure that the plaintiff was not seriously injured. The two statements are clearly inconsistent, and the witness is technically open to impeachment. The trial testimony, however, is actually more helpful to the cross examiner’s case. Recall the possible plaintiff’s themes that the defendant was “too busy to be careful” or “too late to be safe.” The defendant’s admission that his first thought was to telephone his office fits beautifully into either theme. While his hard-heartedness in checking on his BMW before looking into the plaintiff’s injuries might also be useful to the cross examiner’s case, this information does not go directly to any theory of liability or damages. The cross examiner therefore will not want to undercut the trial testimony (about the immediate pone call) by impeaching it with the affidavit (about checking on his BMW).
E. Consider the Impact of Multiple Impeachment
In some cases, a witness may have made a number of potentially impeaching statements. Though no single statement may be of great significance, it is possible that the sheer volume of self-contradiction may be sufficient to take on a life of its own. Thus, it may be worthwhile to impeach a witness on a series of relatively minor inconsistent statements. Consider this impeachment of a bystander witness in the fire truck case:
QUESTION: You testified today that you were standing on the northeast corner
of Craycroft and Alta Vista, correct?
QUESTION: But you told the police officer that you were standing on the
southeast corner, didn’t you?
QUESTION: You told the jury that you saw the accident while you were waiting
for a bus?
QUESTION: But your affidavit said that you were out for a walk.
QUESTION: Today you said that you were on your way to work that day.
QUESTION: In your affidavit, though, you said you were going to the beach.
QUESTION: Today’s testimony was that you were the only person on the corner.
QUESTION: You told the police, however, that there was a jogger standing right
next to you, didn’t you?
In isolation, none of the above details would make much difference to the witness’s credibility. In aggregation, however, they paint a picture of a confused person who is very likely uncertain about what he saw.
Multiple impeachment is a refined tool. It can be overdone, and the point may be easily lost. On the other hand, when deftly executed and well conceived the whole impeachment can actually turn out to be much greater than the sum of its parts.
F. Consider the Timing of Impeachment
To be used effectively, impeachment should fit into the overall strategy of your cross examination. If you intend to impeach a statement that was made during the witness’s direct examination, you are free to place it wherever you see fit in your cross examination.
The basic principles for the organization of cross examinations also apply to impeachment. It is usually advisable to maximize cooperation by beginning with inquiries that do not challenge or threaten the witness. For the same reason, initial questions are usually employed to build up your own case, as opposed to controverting the opposition’s. These are not absolute rules, but they do form a sound framework within which to begin thinking about organization.
Since impeachment can easily become threatening or confrontational, it is usually advisable to save it until you have exhausted the favorable information that you intend to obtain from the witness. Only once the witness’s cooperation is no longer important to your success should you move on to the impeachment.
On the other hand, you might wan to “discipline” the witness by conducting a good, strong impeachment at the very beginning of the cross examination. This technique should be used when you anticipate great difficulty in controlling the witness. By teaching the witness right from the start of the examination that you have the tools to compel the answers that you are entitled to, the witness’s tendency to wander or argue may be minimized. You will sacrifice cooperation, but this is a witness from whom you had not expected cooperation in the first place.
But what if you do not have the luxury of deciding when to impeach, as in the case when the witness changes her story while you are cross examining her? At that point, there is no reason to wait or experiment with the niceties of fine organization. If you have the ammunition, impeach the witness on the spot.
III. THE TYPES OF IMPEACHMENT
A. Prior Inconsistent Statements
One of the most dramatic aspects of any trial is the confrontation of a witness with his own prior inconsistent statement. This is the moment that trial attorneys live for – the opportunity to show that the witness’s current testimony is contradicted by his own earlier words. Properly conducted, this form of impeachment is not only effective on cross examination; it can also provide extremely fruitful final argument.
Ladies and Gentlemen: Mr. Kuhn is simply unworthy of belief. He couldn’t even keep his story straight himself. Right after the accident he told Officer Hamilton that the light was red. By the time of trial it had mysteriously changed to green. The best you can say about Mr. Kuhn is that he doesn’t know what color the light was.
Prior inconsistent statements damage a witness’s credibility because they demonstrate that the witness has changed his story. Depending upon the nature and seriousness of the change, the witness may be shown to be evasive, opportunistic, error-prone, or even lying.
There are three steps necessary to impeach a witness with a prior inconsistent statement: (1) recommit; (2) validate; and (3) confront. Recommit the witness to his current testimony by restating it and asking him to verify that he made the statement under oath. Then, validate the witness’s prior testimony by getting him to agree that it too was under oath and that he had a chance to correct it for errors. Finally, confront the witness with his prior testimony by reading it aloud for the court.
1. Recommit the witness
Recommit the witness to his current testimony by asking, for example:
QUESTION: Mr. Kuhn, you testified on direct examination that the light was green
for the southbound traffics, correct?
Or,
QUESTION: Mr. Kuhn, are you telling this jury today that the light was green
for southbound traffic?
The purpose of recommitting the witness is to emphasize the disparity between the witness’s current testimony and his prior statement; the goal being to contrast the two statements by restating the testimony that is about to be impeached. Make sure when you do this you recite the witness’s prior testimony word for word; paraphrasing or summarizing it may result in a series of arguments or quibbles with the witness that detract from the impeachment.
Also remember that your goal in impeaching is to point out that the witness has changed his answer, not to give him a chance to affirm the truth of his most recent statement. For instance, in the example above it would not be wise to word the recommitment, “Mr. Kuhn, the light was green for the southbound traffic, correct?” since the witness’s response is likely to be, “Yes, that is correct. The light was green for the southbound traffic.” It is better to stress that the witness testified that the light was green rather than to affirm that it actually was green (as he is now testifying) since you plan to argue in closing that he has changed his testimony.
Mr. Kuhn took the stand today and told you the light was green for southbound traffic at the time of the accident. However, as we pointed out, immediately following the accident he told the police that the light was red. Well, which is it, green or red? You should believe that it was red because Mr. Kuhn made that statement immediately after the accident in this case, when his memory of the events was still fresh. Two years have now passed and Mr. Kuhn is obviously confused about what happened – luckily we have his statement to the police to clear things up.
2. Validate the prior statement
Once the witness has been recommitted, the next step in the impeachment is to validate the prior statement. The initial purpose of validation is to establish that the witness actually made the impeaching statement. Depending upon the circumstances of the case, further validation may be employed to accredit or demonstrate the accuracy of the earlier statement, as opposed to the witness’s direct testimony.
In mock trials, witness’s prior testimony is usually in the form of sworn statements or affidavits, both of which are summaries of the witness’s testimony. On rare occasion, a mock trial case will present the witness’s testimony in the form of a deposition transcript. A deposition is an interview conducted under oath between a witness and the opposing attorney where the attorney asks questions and the witness provides answers. The method you use to validate a witness’s prior testimony will depend on the form in which it is presented in your case file.
Validate a witness’s prior written testimony by establishing when and how the earlier statement was made:
QUESTION: You spoke to Officer Hamilton about this accident, right?
ANSWER: I did.
QUESTION: You understood that it was important to tell Officer Hamilton exactly
what you saw?
ANSWER: Yes.
QUESTION: You spoke to the police officer on the very day of the accident?
ANSWER: Correct.
QUESTION: The events were fresh in your mind?
ANSWER: Yes.
QUESTION: Since then over a year has gone by?
ANSWER: Yes.
QUESTION: After you spoke to Officer Hamilton, she asked you to sign a
statement, didn’t she?
ANSWER: Yes, she did.
QUESTION: You read and signed the statement, didn’t you?
ANSWER: Yes.
Your validation of the witness’s prior deposition testimony should follow a similar pattern:
QUESTION: You gave a deposition in this case, right?
QUESTION: That was where you came to my office?
QUESTION: I asked you questions.
QUESTION: You gave me answers.
QUESTION: You were under oath when you answered my questions, right?
QUESTION: You swore to tell the truth, the whole truth, and nothing but the truth?
QUESTION: That was the same oath that you took here in court today?
QUESTION: After I was done asking you questions, I asked you to read back over
your deposition, correct?
QUESTION: You did that didn’t you?
QUESTION: When you were done, you signed your deposition affirming that it
was accurate, right?
In addition to validating the witness’s prior statement or testimony, it is often a good idea to accredit it; that is, to state reasons why the fact-finder might find it more accurate than the witness’s current testimony. Since the two statements are by definition mutually exclusive, there is a natural syllogism: if the earlier statement is true, then the current testimony must be wrong. Thus, the accreditation of the prior inconsistent statement can further detract from the witness’s credibility.
You can accredit a witness’s prior testimony by showing that she had a strong motive for recalling all the important facts accurately when it was given, as in a physical description given when the perpetrator of a crime is still at large. As illustrated above, a prior statement can also be accredited by showing that it was given close in time to the events in the case or that the witness was under a legal duty to be accurate when she gave the previous testimony.
3. Confront the witness with the prior statement
The final stage of impeachment is to confront the witness with his prior statement to get him to admit that the earlier statement was indeed made. This confrontation need not always be confrontational. It is sufficient merely to require the witness to admit making the impeaching statement, particularly when the impeachment is based upon the witness’s forgetfulness, confusion, or embellishment. Hostility or accusation should be reserved for those situations when the witness can be shown to be lying or acting out of some other motive.
To be effective, the confrontation must be accomplished in a clear and concise manner that leaves no room for evasion or argument by the witness or his attorney. The classic approach is to alert the court to the page and line number of the witness’s statement to which you will be referring and then to read the witness’s own words:
TO COURT: I’m referring to the first page, line 10, of the witness’s statement.
QUESTION: Isn’t it true, Mr. Kuhn, that n your statement you said, “At the time of
the accident, the traffic light was red for the southbound traffic.”
ANSWER: Yes.
Or, in the case of a deposition:
TO COURT: I’m referring to the first page, lines 10 through 15 of the witness’s
deposition transcript.
QUESTION: Isn’t it true, Mr. Kuhn, that during your deposition I asked you this
question and you gave the answer, ”Question: What color was the
traffic light for southbound traffic, when the accident occurred?
Answer: It was red.”
ANSWER: Yes.
This method can be coupled with giving the witness a copy of the impeaching statement or deposition transcript and directing the witness to read along as you read it. For example, you might give the witness a copy of his affidavit and proceed:
QUESTION: Please take a look at Exhibit 14; isn’t that the affidavit you signed?
ANSWER: Yes, it is.
QUESTION: Now please look at line 10 of the first page and read silently along with
me. Doesn’t your affidavit say, “At the time of the accident, the traffic
light was red for the southbound traffic”?
You must be sure not to ask the witness to read the testimony aloud and not to ask the witness to explain the inconsistency between his current and prior testimony. Doing either of these surrenders your control over the examination. If the witness reads the statement, you cannot control how clearly, loudly, or accurately it is read and whether voice inflection will be used to emphasize the inconsistency. It is even riskier to ask the witness to explain the inconsistency; at best, the witness will take the opportunity to muddle the clarity of the impeachment and at worst the witness will launch into an explanation that undercuts the entire line of examination.
It is also important not to ask a witness to agree that the two statements are inconsistent or different. And never ask a witness to concede that she has changed her story. These questions are the “one too many” you want to avoid. The witness is not going to admit to them on the stand; instead she will only take issue with your assumption that she is lying or that the statements are contradictory. Questions of this sort are likely only to produce argument, and argument is likely to engender explanation.
What do you do if the witness’s prior statement was oral rather than written? Assume Mr. Kuhn spoke to officer Hamilton but did not sign a written statement. Even if Officer Hamilton included verbatim notes in the police report, that document cannot be used to impeach Mr. Kuhn because it was not his own prior statement. Thus, the only way to complete that impeachment would be to question Officer Hamilton about the description that the witness gave orally during the investigation:
QUESTION: Didn’t you interview Mr. Kuhn immediately after the accident?
ANSWER: Yes.
QUESTION: And he told you that the light was red for southbound traffic at the time
of the accident, didn’t he?
ANSWER: Yes, he did.
Because this testimony is impeaching of Mr. Kuhn, it is admissible.
B. Impeachment by Omission
In addition to his prior statements, a witness may also be impeached by pointing out that his current testimony includes facts that were not included in his prior statements or testimony. This type of impeachment follows the same theory as impeachment by a prior inconsistent statement; the witness’s current testimony is rendered less credible because when she told the same story earlier it did not contain facts that she now claims are true. In essence, the impeachment is saying, “do not believe this witness because she is adding facts to her story.” Or, in other words, “If these things are true, why didn’t she say them before?”
In mock trials it is easy to see what is really taking place when facts are included at trial that are not found in the case file: they are either reasonable inferences from the case materials that explain the events of the case or they are unreasonable inferences that bolster the witness’s testimony. As discussed in previous chapters, witnesses in mock trials are allowed to make reasonable inferences form the case materials. Witnesses are not, however, allowed to go beyond reasonable inferences by making up material facts in order to strengthen their side of the case. So, if they are not supposed to make up facts, why do so many teams do it? Unfortunately, teams make up facts because they forget that mock trial competitions are not about getting a verdict in their favor; they are about demonstrating trial advocacy skills. Making up facts is unethical. Accordingly, it is not unheard of for judges to penalize teams who make unreasonable inferences from the case file. Some judges even believe it should be cause for automatic loss of the competition round.
Nevertheless, you may encounter teams who make up material facts during your trials. When that happens, you cannot simply object and say, “Your Honor, she is making up that fact – it isn’t in the case file!” Mock trial attorneys must stay in character and deal with surprises the same way trial lawyers do: by impeaching the witness by omission. This, learning the steps of an effective impeachment by omission Is just as important for mock trial participants as is learning to impeach by prior inconsistent statement.
When impeaching by omission, follow these three general steps: (1) recommit; (2) accredit; and (3) confront. Recommit the witness to the new testimony she gave during the trial. Next, accredit the witness’s previous testimony, emphasizing that she swore to tell the whole truth and also that she had an opportunity to read her statement to make sure she included all relevant facts. Finally, confront the witness with the fact that she did not include these new assertions in her previous testimony.
1. Recommit the witness
Recommit the witness to having testified to a certain fact during direct or cross examination.
QUESTION: Professor Geraghty, you told us during your direct examination that
you spoke to the dean on January 6, right?
Or,
QUESTION: Professor Geraghty, today you told the jury that you had a
conversation with the dean on January 6, right?
2. Accredit the witness’s prior opportunity to tell the full story
If your case file includes witness statements or affidavits, it is reasonable to conclude that each of the witnesses was given the opportunity to tell their story in full therein. After all, both witness statements and affidavits are summaries of the witness’s testimony and summaries include all the important facts. Likewise, if your witness was given the opportunity to read over her deposition and add any information relevant to the case.
Thus, if the prior testimony was in the form of an affidavit, the accreditation might proceed as follows:
QUESTION: You recall giving a statement in this case, right?
QUESTION: When you gave that statement you were under oath?
QUESTION: You swore to tell the truth, the whole truth, and nothing but the truth?
QUESTION: That was the same oath that you took here in court today?
QUESTION: When you were asked to give that statement, you were told to include
all relevant information, right?
QUESTION: Then, when you were done writing it, you were asked to read it over?
QUESTION: To make sure it was accurate and complete?
QUESTION: And you did that, didn’t you?
QUESTION: You were able to make any corrections or additions that you wanted?
QUESTION: When you were done, you signed the statement affirming that it was
accurate and complete, right?
In the context of a deposition the accreditation might go as follows:
QUESTION: You gave a deposition in this case, right?
QUESTION: That was where you came to my office?
QUESTION: I asked you questions.
QUESTION: You gave me answers.
QUESTION: You were under oath when you answered those questions, right?
QUESTION: You swore to tell the truth, the whole truth, and nothing but the truth?
QUESTION: That was the same oath that you took here in court today?
QUESTION: You later had the opportunity to go over your deposition, correct?
QUESTION: To make sure you included all of the relevant information, right?
QUESTION: To make sure it was complete?
QUESTION: And you did that, didn’t you?.
QUESTION: You were able to make any additions that you wanted?.
QUESTION: When you were done, you signed your deposition affirming that it
was complete, right?
3. Confront the witness
Here is where you point out that the witness testified to facts that were not included in his affidavit or deposition:
QUESTION: Professor Geraghty, isn’t it true that nowhere in your affidavit did
you mention talking to the dean on January 6?
Or, in the case of a deposition:
QUESTION: Professor Geraghty, during your deposition you did not tell me that
you spoke to the dean on January 6, did you?
QUESTION: Even after your deposition, you did not add that information to
your deposition transcript when given the opportunity, did you?
You can also give the witness a copy of his affidavit or deposition transcript and ask him to indicate where he included the pertinent fact. The advantage of this method is that it allows the fact-finder to hear the witness’s admission, in his own words, that the fact was not included. The downfall of using this method in mock trial competition is that it takes more time to execute than the method outlined above. Given the time limits typically set in mock trials, it is not wise to waste even one minute on having an opposing witness authenticate his own affidavit and then read through it to look for a pertinent fact. To be sure, there is always a risk that the witness will take the time to read his entire affidavit before answering – in which case one minute can easily become five. But, if you can spare the time, the confrontation might go as follows:
QUESTION: Professor Geraghty, this is your affidavit, isn’t it?
QUESTION: Directing your attention to the last page. That is your signature, is it
not?
QUESTION: Please read through your affidavit, Professor Geraghty, and signal
me when you have finished.
QUESTION: Isn’t it true that nowhere in your statement did you say that you spoke
to the dean on January 6?
C. Character and Case-Specific Motive Impeachment
1. Impeachment based on the witness’s character or characteristics
Character impeachment refers to the use of some inherent trait or particular characteristic of the witness, essentially unrelated to the case at hand, to render that witness’s testimony less credible. The thrust of the impeachment is to show that the witness, for some demonstrable reason, is simply not trustworthy.
The most common forms of characteristic impeachment include conviction of a crime, defect in memory or perception, and past untruthfulness.
a. Conviction of a crime
A witness may be impeached on the basis of his or her past conviction of certain crimes. To determine which crimes are admissible, consult the rules of evidence followed in your competition.
Once you have determined that a conviction can be used for impeachment, relatively little technique is involved in the cross examination:
QUESTION: Isn’t it true, Ms. Yuster, that you were once convicted of the crime of
aggravated battery?
ANSWER: Yes.
QUESTION: You were convicted on October 12, 1998, correct?
ANSWER: Yes.
QUESTION: That was a felony?
ANSWER: It was.
QUESTION: And you were sentenced to two years of probation?
ANSWER: I was.
As a rule, you are allowed to impeach the witness by showing that she was convicted of a certain type of crime. However, the facts and details of the crime (e.g., who the witness injured, why, when etc.) are generally not allowed. Because of this, it is effective to draw out the impeaching information, as in the above example, in a series of short questions, each of which deals with a single fact. Repetition of terms such as “crime,” “conviction,” and even “convicted felon” will add weight to the impeachment.
b. Past untruthfulness and other bad acts
We have discussed the rules governing impeachment on the basis of a criminal conviction. What about a witness’s bad acts that were not the subject of a conviction? A witness who has lied in the past, whether or not prosecuted and whether or not under oath, may well be likely to lie during current testimony. On the other hand, past misconduct of some sort is a near-universal human condition, and trials would become bogged down if lawyers were allowed free rein to cross examine witnesses on any and all of their old misdeeds.
Again, you must determine whether your rules of evidence allow you to go into instances of a witness’s untruthfulness and other bad acts. The procedure for examining the witness is the same as above.
c. Impaired perception or recollection
A witness can also be impeached on the basis of inability to perceive or recall events. Perception can be adversely affected by a wide variety of circumstances. The witness may have been distracted at the time of the events, or his vision may have been obscured. The witness may have been sleepy, frightened, or intoxicated. The witness may have poor eyesight or may suffer from some other sensory deficit. And of these (or similar) facts can be used to impeach the credibility of a witness’s testimony.
2. Case-specific motive impeachment
Some facts are impeaching only within the circumstances of a particular case. They would be innocuous, or perhaps even helpful, in any other context. The most common forms of case-specific motive impeachment are based on the witness’s personal interest, bias, or prejudice.
A witness who is personally interested in the outcome of a case may be inclined to testify with less than absolute candor. Whether consciously or subconsciously, it is a well-recognized human tendency to shape one’s recollection in the direction of the desired outcome.
Impeachment on the basis of personal interest is therefore geared to take advantage of the phenomenon by pointing out just how the witness stands to gain or lose as a consequence of the resolution of the case. The technique is common in both civil and criminal cases, and it may be applied to both party and nonparty witnesses.
Perhaps the clearest example of impeachment on the basis of personal interest arises when the witness has a financial stake I the fact-finder’s verdict. A witness’s testimony may be affected by a case-specific motive other than personal interest; the witness may have a professional stake in the issues being litigated or may have some other reason to prefer one outcome to another. For example, where a witness’s prior judgment is being questioned, that witness has a motive to testify in such a way as to vindicate that earlier judgment. Likewise, an expert who adheres to a particular school of thought in his profession has a motive to defend it at trial when it is challenged by other experts in his field.
Bias and prejudice generally refer to a witness’s relationship to one of the parties. A witness may be well disposed, or ill inclined, toward either party. Sadly, some witnesses harbor prejudices against entire groups of people. Bias in favor of a party is often the consequence of friendship or affinity.
QUESTION: You are the defendant’s younger brother?
QUESTION: You grew up together?
QUESTION: You have helped each other throughout your lives?
QUESTION: Now your brother is charged with a crime?
QUESTION: He is in trouble?
QUESTION: He needs help?
QUESTION: And you are here to testify?
Nothing is more case-specific than this sort of impeachment. It has forensic value if and only if the witness’s brother is the defendant in the case and the two had a strong relationship. Of course, if they didn’t, the other side might be able to use the same facts to its advantage:
QUESTION: You are the defendant’s younger brother?
QUESTION: You grew up together?
QUESTION: He was always beating you up?
QUESTION: He seemed to have all of life’s advantages?
QUESTION: It was hard to follow in his successful footsteps?
QUESTION: Everyone was always comparing you to him?
QUESTION: He teased you and called you names?
QUESTION: You were always resentful of him?
QUESTION: You swore that you would get even?
QUESTION: Now your older brother is charged with a crime?
QUESTION: After all these years, his success seems to have run out?
QUESTION: And you have come to court today to testify against him?
As with all case-specific impeachment, the establishment of bias or prejudice requires careful development through the use of small, individual facts.
Impeachment is the act of discrediting a witness as a reliable source of information on cross examination. Successful impeachment renders the witness less worthy of belief, as opposed to merely unobservant, mistaken, or otherwise subject to contradiction.
Contrary to popular belief, the clouds will not part and lightning will not strike when you impeach a witness, nor is the witness likely to give up and admit that you were right all along. If you play your cards right, though, the effect of your impeachment will be felt during your closing argument. Closing argument is your opportunity to argue that the fact-finder should disregard the impeached witness’s testimony because she is not credible.
We will focus on impeachment by “prior inconsistent statement,” impeachment by “omission,” and impeachment through the use of character and case-specific motive evidence in this chapter.
Impeachment by prior inconsistent statement is performed when a witness’s testimony at trial is different from, and conflicts with, the information included in his prior sworn statement. For example, say that a defendant in a hit-and-run case takes the stand and testifies during his direct examination that the traffic light was green at the time of the accident. Upon hearing this, opposing counsel remembers that in his statement the defendant said the traffic light was red when the accident occurred. This situation calls for impeachment by prior inconsistent statement.
Impeachment by omission is conducted when a witness adds important facts at trial that were not included in his prior statement. To illustrate, imagine that the witness in the example above did not include the color of the traffic light in his prior sworn testimony but then he added it during his direct examination. The cross examiner will want to point out that omission through impeachment.
In both cases, the inconsistency demonstrates that the witness’s current testimony is at odds with his previous testimony. In essence, these forms of impeachment assert, “Do not believe this witness because his story has changed.”
The third and fourth methods of impeachment use a witness’s character or traits of his character to show that he should not be believed. This form of impeachment is aimed at demonstrating that the witness possesses some trait or characteristic that renders his testimony less credible. Perhaps the witness is a convicted felon or suffers a memory deficit. This examination says, “This witness is not trustworthy on any matter, because of who he is.” It is likewise impeaching to use case-specific motive evidence to establish that the witness is not reliable in the context of the case at trial. For example, a witness might have a financial interest in the outcome of the case or might be prejudiced against one of the parties.
II. THE RULES OF IMPEACHMENT
Impeachment is a powerful tool. Unlike “standard” cross examination, which may rely on unspoken premises and subtle misdirection, there should be no mistaking or hiding the intended impact of impeachment. Impeachment is inherently confrontational; it challenges the witness’s believability, perhaps even her veracity. For this reason it is best to follow the below rules when considering whether to impeach a witness.
A. Impeach Only on Significant Matters
It is important to avoid impeaching witnesses on irrelevant, trivial, or petty inconsistencies. If the “punch line” fails to justify the buildup, the results can be embarrassing or damaging to your case. Imagine this scenario where the plaintiff in our fire truck case is being cross examined:
QUESTION: You testified on direct examination that you saw the flashing lights
and then realized that there was a fire truck behind you and so you
slowed down, correct?
ANSWER: Correct.
QUESTION: You have given an earlier statement?
ANSWER: Why, yes I did.
QUESTION: You spoke to the investigating officer?
ANSWER: That is right.
QUESTION: You knew that you had to be truthful with the police officer?
ANSWER: Of course.
QUESTION: Didn’t your earlier statement say, “I realized that there was a fire truck
behind me saw its flashing lights, which caused me to slow down
at once”?
ANSWER: Yes, I believe that is what I said.
Although the plaintiff has, in some technical sense, been impeached, the inconsistency involved is so slight as to be inconsequential. What difference does it make what triggered the witness to first realize there was a fire truck behind her? The essential point – that the fire truck was using its warning lights and that traffic slowed down – remains completely intact. The cross examiner, however, has squandered valuable capital by confronting the witness, wasting time, and emerging with nothing to show for those efforts. A jury’s near-certain response would be, “is that all you can do?” A judge’s response would be even less charitable.
This principle of significance also applies to impeachment by omission. The test of whether a “surprise” fact is important enough to point out through impeachment is whether it makes it more or less likely that your client will prevail.
B. Impeach Only on Actual Inconsistencies
The purpose of impeachment through the use of a prior inconsistency is to show that the witness has made contradictory statements. The technique works only when the two statements cannot both be true. If the two statements can be harmonized, explained, or rationalized, the impeachment will fail. For example:
QUESTION: You testified on direct that the bank robbers drove away in a blue
sedan, correct?
ANSWER: Yes.
QUESTION: You gave a statement to the police right after the robbery, didn’t you?
ANSWER: Yes, I did.
QUESTION: You told the police that the robbers drove off in a turquoise sedan,
didn’t you?
Although different words were used, the two statements are not inconsistent. It does not detract from the witness’s credibility that she once referred to the car as turquoise and that she later called it blue.
C. Be Sure of Success before Beginning
Failed impeachment can be disastrous. A lawyer who begins an assault that cannot be completed will look ineffective at best and foolishly overbearing at worst. Because of this, be absolutely sure you can prove up an impeachment before you begin it.
If you are impeaching a witness by prior inconsistent statement, you will know whether you can prove up an impeachment with each question you ask. You will know because most of the questions you ask should be taken directly from the witness’s statement and will be referenced to the page and line number therein. Still, do not begin your impeachment until you have the statement in hand and have located the page and line that contradicts the current testimony.
A smart precautionary measure (and also a good way to demonstrate teamwork in competition) is to involve your co-counsel in this process. Before beginning your cross examination, give a copy of your indexed questions to your co-counsel. Then, when the witness refuses to agree to a question taken directly from his statement, turn toward your co-counsel and await the signal of whether it is safe to proceed. Your co-counsel, who was diligently following along, should nod to you if the question you asked is supported by a reference to the exact page and line number where the information appears in the witness’s statement. Having received the go-ahead, you can walk to your counsel table, retrieve the witness’s statement, and confidently proceed with the impeachment.
D. Do Not Impeach Favorable Information
This should go without saying but there is nothing to be gained by casting doubt on testimony that was helpful to your case. Thus, even if an opposing witness has given a prior inconsistent statement, it should not be used to impeach favorable trial testimony.
Assume that the defendant in the fire truck case testified at trial that immediately after the accident he used his cellular phone to call his office. In contrast, in his affidavit he testified that his first action was to check the damage to his BMW and that he called his office only after making sure that the plaintiff was not seriously injured. The two statements are clearly inconsistent, and the witness is technically open to impeachment. The trial testimony, however, is actually more helpful to the cross examiner’s case. Recall the possible plaintiff’s themes that the defendant was “too busy to be careful” or “too late to be safe.” The defendant’s admission that his first thought was to telephone his office fits beautifully into either theme. While his hard-heartedness in checking on his BMW before looking into the plaintiff’s injuries might also be useful to the cross examiner’s case, this information does not go directly to any theory of liability or damages. The cross examiner therefore will not want to undercut the trial testimony (about the immediate pone call) by impeaching it with the affidavit (about checking on his BMW).
E. Consider the Impact of Multiple Impeachment
In some cases, a witness may have made a number of potentially impeaching statements. Though no single statement may be of great significance, it is possible that the sheer volume of self-contradiction may be sufficient to take on a life of its own. Thus, it may be worthwhile to impeach a witness on a series of relatively minor inconsistent statements. Consider this impeachment of a bystander witness in the fire truck case:
QUESTION: You testified today that you were standing on the northeast corner
of Craycroft and Alta Vista, correct?
QUESTION: But you told the police officer that you were standing on the
southeast corner, didn’t you?
QUESTION: You told the jury that you saw the accident while you were waiting
for a bus?
QUESTION: But your affidavit said that you were out for a walk.
QUESTION: Today you said that you were on your way to work that day.
QUESTION: In your affidavit, though, you said you were going to the beach.
QUESTION: Today’s testimony was that you were the only person on the corner.
QUESTION: You told the police, however, that there was a jogger standing right
next to you, didn’t you?
In isolation, none of the above details would make much difference to the witness’s credibility. In aggregation, however, they paint a picture of a confused person who is very likely uncertain about what he saw.
Multiple impeachment is a refined tool. It can be overdone, and the point may be easily lost. On the other hand, when deftly executed and well conceived the whole impeachment can actually turn out to be much greater than the sum of its parts.
F. Consider the Timing of Impeachment
To be used effectively, impeachment should fit into the overall strategy of your cross examination. If you intend to impeach a statement that was made during the witness’s direct examination, you are free to place it wherever you see fit in your cross examination.
The basic principles for the organization of cross examinations also apply to impeachment. It is usually advisable to maximize cooperation by beginning with inquiries that do not challenge or threaten the witness. For the same reason, initial questions are usually employed to build up your own case, as opposed to controverting the opposition’s. These are not absolute rules, but they do form a sound framework within which to begin thinking about organization.
Since impeachment can easily become threatening or confrontational, it is usually advisable to save it until you have exhausted the favorable information that you intend to obtain from the witness. Only once the witness’s cooperation is no longer important to your success should you move on to the impeachment.
On the other hand, you might wan to “discipline” the witness by conducting a good, strong impeachment at the very beginning of the cross examination. This technique should be used when you anticipate great difficulty in controlling the witness. By teaching the witness right from the start of the examination that you have the tools to compel the answers that you are entitled to, the witness’s tendency to wander or argue may be minimized. You will sacrifice cooperation, but this is a witness from whom you had not expected cooperation in the first place.
But what if you do not have the luxury of deciding when to impeach, as in the case when the witness changes her story while you are cross examining her? At that point, there is no reason to wait or experiment with the niceties of fine organization. If you have the ammunition, impeach the witness on the spot.
III. THE TYPES OF IMPEACHMENT
A. Prior Inconsistent Statements
One of the most dramatic aspects of any trial is the confrontation of a witness with his own prior inconsistent statement. This is the moment that trial attorneys live for – the opportunity to show that the witness’s current testimony is contradicted by his own earlier words. Properly conducted, this form of impeachment is not only effective on cross examination; it can also provide extremely fruitful final argument.
Ladies and Gentlemen: Mr. Kuhn is simply unworthy of belief. He couldn’t even keep his story straight himself. Right after the accident he told Officer Hamilton that the light was red. By the time of trial it had mysteriously changed to green. The best you can say about Mr. Kuhn is that he doesn’t know what color the light was.
Prior inconsistent statements damage a witness’s credibility because they demonstrate that the witness has changed his story. Depending upon the nature and seriousness of the change, the witness may be shown to be evasive, opportunistic, error-prone, or even lying.
There are three steps necessary to impeach a witness with a prior inconsistent statement: (1) recommit; (2) validate; and (3) confront. Recommit the witness to his current testimony by restating it and asking him to verify that he made the statement under oath. Then, validate the witness’s prior testimony by getting him to agree that it too was under oath and that he had a chance to correct it for errors. Finally, confront the witness with his prior testimony by reading it aloud for the court.
1. Recommit the witness
Recommit the witness to his current testimony by asking, for example:
QUESTION: Mr. Kuhn, you testified on direct examination that the light was green
for the southbound traffics, correct?
Or,
QUESTION: Mr. Kuhn, are you telling this jury today that the light was green
for southbound traffic?
The purpose of recommitting the witness is to emphasize the disparity between the witness’s current testimony and his prior statement; the goal being to contrast the two statements by restating the testimony that is about to be impeached. Make sure when you do this you recite the witness’s prior testimony word for word; paraphrasing or summarizing it may result in a series of arguments or quibbles with the witness that detract from the impeachment.
Also remember that your goal in impeaching is to point out that the witness has changed his answer, not to give him a chance to affirm the truth of his most recent statement. For instance, in the example above it would not be wise to word the recommitment, “Mr. Kuhn, the light was green for the southbound traffic, correct?” since the witness’s response is likely to be, “Yes, that is correct. The light was green for the southbound traffic.” It is better to stress that the witness testified that the light was green rather than to affirm that it actually was green (as he is now testifying) since you plan to argue in closing that he has changed his testimony.
Mr. Kuhn took the stand today and told you the light was green for southbound traffic at the time of the accident. However, as we pointed out, immediately following the accident he told the police that the light was red. Well, which is it, green or red? You should believe that it was red because Mr. Kuhn made that statement immediately after the accident in this case, when his memory of the events was still fresh. Two years have now passed and Mr. Kuhn is obviously confused about what happened – luckily we have his statement to the police to clear things up.
2. Validate the prior statement
Once the witness has been recommitted, the next step in the impeachment is to validate the prior statement. The initial purpose of validation is to establish that the witness actually made the impeaching statement. Depending upon the circumstances of the case, further validation may be employed to accredit or demonstrate the accuracy of the earlier statement, as opposed to the witness’s direct testimony.
In mock trials, witness’s prior testimony is usually in the form of sworn statements or affidavits, both of which are summaries of the witness’s testimony. On rare occasion, a mock trial case will present the witness’s testimony in the form of a deposition transcript. A deposition is an interview conducted under oath between a witness and the opposing attorney where the attorney asks questions and the witness provides answers. The method you use to validate a witness’s prior testimony will depend on the form in which it is presented in your case file.
Validate a witness’s prior written testimony by establishing when and how the earlier statement was made:
QUESTION: You spoke to Officer Hamilton about this accident, right?
ANSWER: I did.
QUESTION: You understood that it was important to tell Officer Hamilton exactly
what you saw?
ANSWER: Yes.
QUESTION: You spoke to the police officer on the very day of the accident?
ANSWER: Correct.
QUESTION: The events were fresh in your mind?
ANSWER: Yes.
QUESTION: Since then over a year has gone by?
ANSWER: Yes.
QUESTION: After you spoke to Officer Hamilton, she asked you to sign a
statement, didn’t she?
ANSWER: Yes, she did.
QUESTION: You read and signed the statement, didn’t you?
ANSWER: Yes.
Your validation of the witness’s prior deposition testimony should follow a similar pattern:
QUESTION: You gave a deposition in this case, right?
QUESTION: That was where you came to my office?
QUESTION: I asked you questions.
QUESTION: You gave me answers.
QUESTION: You were under oath when you answered my questions, right?
QUESTION: You swore to tell the truth, the whole truth, and nothing but the truth?
QUESTION: That was the same oath that you took here in court today?
QUESTION: After I was done asking you questions, I asked you to read back over
your deposition, correct?
QUESTION: You did that didn’t you?
QUESTION: When you were done, you signed your deposition affirming that it
was accurate, right?
In addition to validating the witness’s prior statement or testimony, it is often a good idea to accredit it; that is, to state reasons why the fact-finder might find it more accurate than the witness’s current testimony. Since the two statements are by definition mutually exclusive, there is a natural syllogism: if the earlier statement is true, then the current testimony must be wrong. Thus, the accreditation of the prior inconsistent statement can further detract from the witness’s credibility.
You can accredit a witness’s prior testimony by showing that she had a strong motive for recalling all the important facts accurately when it was given, as in a physical description given when the perpetrator of a crime is still at large. As illustrated above, a prior statement can also be accredited by showing that it was given close in time to the events in the case or that the witness was under a legal duty to be accurate when she gave the previous testimony.
3. Confront the witness with the prior statement
The final stage of impeachment is to confront the witness with his prior statement to get him to admit that the earlier statement was indeed made. This confrontation need not always be confrontational. It is sufficient merely to require the witness to admit making the impeaching statement, particularly when the impeachment is based upon the witness’s forgetfulness, confusion, or embellishment. Hostility or accusation should be reserved for those situations when the witness can be shown to be lying or acting out of some other motive.
To be effective, the confrontation must be accomplished in a clear and concise manner that leaves no room for evasion or argument by the witness or his attorney. The classic approach is to alert the court to the page and line number of the witness’s statement to which you will be referring and then to read the witness’s own words:
TO COURT: I’m referring to the first page, line 10, of the witness’s statement.
QUESTION: Isn’t it true, Mr. Kuhn, that n your statement you said, “At the time of
the accident, the traffic light was red for the southbound traffic.”
ANSWER: Yes.
Or, in the case of a deposition:
TO COURT: I’m referring to the first page, lines 10 through 15 of the witness’s
deposition transcript.
QUESTION: Isn’t it true, Mr. Kuhn, that during your deposition I asked you this
question and you gave the answer, ”Question: What color was the
traffic light for southbound traffic, when the accident occurred?
Answer: It was red.”
ANSWER: Yes.
This method can be coupled with giving the witness a copy of the impeaching statement or deposition transcript and directing the witness to read along as you read it. For example, you might give the witness a copy of his affidavit and proceed:
QUESTION: Please take a look at Exhibit 14; isn’t that the affidavit you signed?
ANSWER: Yes, it is.
QUESTION: Now please look at line 10 of the first page and read silently along with
me. Doesn’t your affidavit say, “At the time of the accident, the traffic
light was red for the southbound traffic”?
You must be sure not to ask the witness to read the testimony aloud and not to ask the witness to explain the inconsistency between his current and prior testimony. Doing either of these surrenders your control over the examination. If the witness reads the statement, you cannot control how clearly, loudly, or accurately it is read and whether voice inflection will be used to emphasize the inconsistency. It is even riskier to ask the witness to explain the inconsistency; at best, the witness will take the opportunity to muddle the clarity of the impeachment and at worst the witness will launch into an explanation that undercuts the entire line of examination.
It is also important not to ask a witness to agree that the two statements are inconsistent or different. And never ask a witness to concede that she has changed her story. These questions are the “one too many” you want to avoid. The witness is not going to admit to them on the stand; instead she will only take issue with your assumption that she is lying or that the statements are contradictory. Questions of this sort are likely only to produce argument, and argument is likely to engender explanation.
What do you do if the witness’s prior statement was oral rather than written? Assume Mr. Kuhn spoke to officer Hamilton but did not sign a written statement. Even if Officer Hamilton included verbatim notes in the police report, that document cannot be used to impeach Mr. Kuhn because it was not his own prior statement. Thus, the only way to complete that impeachment would be to question Officer Hamilton about the description that the witness gave orally during the investigation:
QUESTION: Didn’t you interview Mr. Kuhn immediately after the accident?
ANSWER: Yes.
QUESTION: And he told you that the light was red for southbound traffic at the time
of the accident, didn’t he?
ANSWER: Yes, he did.
Because this testimony is impeaching of Mr. Kuhn, it is admissible.
B. Impeachment by Omission
In addition to his prior statements, a witness may also be impeached by pointing out that his current testimony includes facts that were not included in his prior statements or testimony. This type of impeachment follows the same theory as impeachment by a prior inconsistent statement; the witness’s current testimony is rendered less credible because when she told the same story earlier it did not contain facts that she now claims are true. In essence, the impeachment is saying, “do not believe this witness because she is adding facts to her story.” Or, in other words, “If these things are true, why didn’t she say them before?”
In mock trials it is easy to see what is really taking place when facts are included at trial that are not found in the case file: they are either reasonable inferences from the case materials that explain the events of the case or they are unreasonable inferences that bolster the witness’s testimony. As discussed in previous chapters, witnesses in mock trials are allowed to make reasonable inferences form the case materials. Witnesses are not, however, allowed to go beyond reasonable inferences by making up material facts in order to strengthen their side of the case. So, if they are not supposed to make up facts, why do so many teams do it? Unfortunately, teams make up facts because they forget that mock trial competitions are not about getting a verdict in their favor; they are about demonstrating trial advocacy skills. Making up facts is unethical. Accordingly, it is not unheard of for judges to penalize teams who make unreasonable inferences from the case file. Some judges even believe it should be cause for automatic loss of the competition round.
Nevertheless, you may encounter teams who make up material facts during your trials. When that happens, you cannot simply object and say, “Your Honor, she is making up that fact – it isn’t in the case file!” Mock trial attorneys must stay in character and deal with surprises the same way trial lawyers do: by impeaching the witness by omission. This, learning the steps of an effective impeachment by omission Is just as important for mock trial participants as is learning to impeach by prior inconsistent statement.
When impeaching by omission, follow these three general steps: (1) recommit; (2) accredit; and (3) confront. Recommit the witness to the new testimony she gave during the trial. Next, accredit the witness’s previous testimony, emphasizing that she swore to tell the whole truth and also that she had an opportunity to read her statement to make sure she included all relevant facts. Finally, confront the witness with the fact that she did not include these new assertions in her previous testimony.
1. Recommit the witness
Recommit the witness to having testified to a certain fact during direct or cross examination.
QUESTION: Professor Geraghty, you told us during your direct examination that
you spoke to the dean on January 6, right?
Or,
QUESTION: Professor Geraghty, today you told the jury that you had a
conversation with the dean on January 6, right?
2. Accredit the witness’s prior opportunity to tell the full story
If your case file includes witness statements or affidavits, it is reasonable to conclude that each of the witnesses was given the opportunity to tell their story in full therein. After all, both witness statements and affidavits are summaries of the witness’s testimony and summaries include all the important facts. Likewise, if your witness was given the opportunity to read over her deposition and add any information relevant to the case.
Thus, if the prior testimony was in the form of an affidavit, the accreditation might proceed as follows:
QUESTION: You recall giving a statement in this case, right?
QUESTION: When you gave that statement you were under oath?
QUESTION: You swore to tell the truth, the whole truth, and nothing but the truth?
QUESTION: That was the same oath that you took here in court today?
QUESTION: When you were asked to give that statement, you were told to include
all relevant information, right?
QUESTION: Then, when you were done writing it, you were asked to read it over?
QUESTION: To make sure it was accurate and complete?
QUESTION: And you did that, didn’t you?
QUESTION: You were able to make any corrections or additions that you wanted?
QUESTION: When you were done, you signed the statement affirming that it was
accurate and complete, right?
In the context of a deposition the accreditation might go as follows:
QUESTION: You gave a deposition in this case, right?
QUESTION: That was where you came to my office?
QUESTION: I asked you questions.
QUESTION: You gave me answers.
QUESTION: You were under oath when you answered those questions, right?
QUESTION: You swore to tell the truth, the whole truth, and nothing but the truth?
QUESTION: That was the same oath that you took here in court today?
QUESTION: You later had the opportunity to go over your deposition, correct?
QUESTION: To make sure you included all of the relevant information, right?
QUESTION: To make sure it was complete?
QUESTION: And you did that, didn’t you?.
QUESTION: You were able to make any additions that you wanted?.
QUESTION: When you were done, you signed your deposition affirming that it
was complete, right?
3. Confront the witness
Here is where you point out that the witness testified to facts that were not included in his affidavit or deposition:
QUESTION: Professor Geraghty, isn’t it true that nowhere in your affidavit did
you mention talking to the dean on January 6?
Or, in the case of a deposition:
QUESTION: Professor Geraghty, during your deposition you did not tell me that
you spoke to the dean on January 6, did you?
QUESTION: Even after your deposition, you did not add that information to
your deposition transcript when given the opportunity, did you?
You can also give the witness a copy of his affidavit or deposition transcript and ask him to indicate where he included the pertinent fact. The advantage of this method is that it allows the fact-finder to hear the witness’s admission, in his own words, that the fact was not included. The downfall of using this method in mock trial competition is that it takes more time to execute than the method outlined above. Given the time limits typically set in mock trials, it is not wise to waste even one minute on having an opposing witness authenticate his own affidavit and then read through it to look for a pertinent fact. To be sure, there is always a risk that the witness will take the time to read his entire affidavit before answering – in which case one minute can easily become five. But, if you can spare the time, the confrontation might go as follows:
QUESTION: Professor Geraghty, this is your affidavit, isn’t it?
QUESTION: Directing your attention to the last page. That is your signature, is it
not?
QUESTION: Please read through your affidavit, Professor Geraghty, and signal
me when you have finished.
QUESTION: Isn’t it true that nowhere in your statement did you say that you spoke
to the dean on January 6?
C. Character and Case-Specific Motive Impeachment
1. Impeachment based on the witness’s character or characteristics
Character impeachment refers to the use of some inherent trait or particular characteristic of the witness, essentially unrelated to the case at hand, to render that witness’s testimony less credible. The thrust of the impeachment is to show that the witness, for some demonstrable reason, is simply not trustworthy.
The most common forms of characteristic impeachment include conviction of a crime, defect in memory or perception, and past untruthfulness.
a. Conviction of a crime
A witness may be impeached on the basis of his or her past conviction of certain crimes. To determine which crimes are admissible, consult the rules of evidence followed in your competition.
Once you have determined that a conviction can be used for impeachment, relatively little technique is involved in the cross examination:
QUESTION: Isn’t it true, Ms. Yuster, that you were once convicted of the crime of
aggravated battery?
ANSWER: Yes.
QUESTION: You were convicted on October 12, 1998, correct?
ANSWER: Yes.
QUESTION: That was a felony?
ANSWER: It was.
QUESTION: And you were sentenced to two years of probation?
ANSWER: I was.
As a rule, you are allowed to impeach the witness by showing that she was convicted of a certain type of crime. However, the facts and details of the crime (e.g., who the witness injured, why, when etc.) are generally not allowed. Because of this, it is effective to draw out the impeaching information, as in the above example, in a series of short questions, each of which deals with a single fact. Repetition of terms such as “crime,” “conviction,” and even “convicted felon” will add weight to the impeachment.
b. Past untruthfulness and other bad acts
We have discussed the rules governing impeachment on the basis of a criminal conviction. What about a witness’s bad acts that were not the subject of a conviction? A witness who has lied in the past, whether or not prosecuted and whether or not under oath, may well be likely to lie during current testimony. On the other hand, past misconduct of some sort is a near-universal human condition, and trials would become bogged down if lawyers were allowed free rein to cross examine witnesses on any and all of their old misdeeds.
Again, you must determine whether your rules of evidence allow you to go into instances of a witness’s untruthfulness and other bad acts. The procedure for examining the witness is the same as above.
c. Impaired perception or recollection
A witness can also be impeached on the basis of inability to perceive or recall events. Perception can be adversely affected by a wide variety of circumstances. The witness may have been distracted at the time of the events, or his vision may have been obscured. The witness may have been sleepy, frightened, or intoxicated. The witness may have poor eyesight or may suffer from some other sensory deficit. And of these (or similar) facts can be used to impeach the credibility of a witness’s testimony.
2. Case-specific motive impeachment
Some facts are impeaching only within the circumstances of a particular case. They would be innocuous, or perhaps even helpful, in any other context. The most common forms of case-specific motive impeachment are based on the witness’s personal interest, bias, or prejudice.
A witness who is personally interested in the outcome of a case may be inclined to testify with less than absolute candor. Whether consciously or subconsciously, it is a well-recognized human tendency to shape one’s recollection in the direction of the desired outcome.
Impeachment on the basis of personal interest is therefore geared to take advantage of the phenomenon by pointing out just how the witness stands to gain or lose as a consequence of the resolution of the case. The technique is common in both civil and criminal cases, and it may be applied to both party and nonparty witnesses.
Perhaps the clearest example of impeachment on the basis of personal interest arises when the witness has a financial stake I the fact-finder’s verdict. A witness’s testimony may be affected by a case-specific motive other than personal interest; the witness may have a professional stake in the issues being litigated or may have some other reason to prefer one outcome to another. For example, where a witness’s prior judgment is being questioned, that witness has a motive to testify in such a way as to vindicate that earlier judgment. Likewise, an expert who adheres to a particular school of thought in his profession has a motive to defend it at trial when it is challenged by other experts in his field.
Bias and prejudice generally refer to a witness’s relationship to one of the parties. A witness may be well disposed, or ill inclined, toward either party. Sadly, some witnesses harbor prejudices against entire groups of people. Bias in favor of a party is often the consequence of friendship or affinity.
QUESTION: You are the defendant’s younger brother?
QUESTION: You grew up together?
QUESTION: You have helped each other throughout your lives?
QUESTION: Now your brother is charged with a crime?
QUESTION: He is in trouble?
QUESTION: He needs help?
QUESTION: And you are here to testify?
Nothing is more case-specific than this sort of impeachment. It has forensic value if and only if the witness’s brother is the defendant in the case and the two had a strong relationship. Of course, if they didn’t, the other side might be able to use the same facts to its advantage:
QUESTION: You are the defendant’s younger brother?
QUESTION: You grew up together?
QUESTION: He was always beating you up?
QUESTION: He seemed to have all of life’s advantages?
QUESTION: It was hard to follow in his successful footsteps?
QUESTION: Everyone was always comparing you to him?
QUESTION: He teased you and called you names?
QUESTION: You were always resentful of him?
QUESTION: You swore that you would get even?
QUESTION: Now your older brother is charged with a crime?
QUESTION: After all these years, his success seems to have run out?
QUESTION: And you have come to court today to testify against him?
As with all case-specific impeachment, the establishment of bias or prejudice requires careful development through the use of small, individual facts.