Cross-Exam: Chapter 17, Impeachment by Omission

There are 3 separate and distinct steps for the technique of impeachment by omission.

Each step is in reality a separate goal, requiring one or more chapters of cross-examination for its accomplishment.

3 Steps of Impeachment by Omission

1. Either by professional duty or by factual circumstances of the case, the person who is being impeached by his omission must have understood the need to be complete on important details.

2. The document, report, or hearing must have been an appropriate place (and hopefully the appropriate place) to speak of or note the important matters that were omitted.

3. Under the factual circumstances of this case, at the time of the making of the document, report, or hearing, the matters were known and were important.

Impeachment by omission requires the same 8-step process as impeachment by inconsistent statement.  However, impeachment by omission is far more based on logic than many other forms of impeachment.

Because there are so many explanations as to why something wasn’t said before trial, the cross-examiner must be extremely careful establishing the value of the prior statement that contains the omission.

The point of the impeachment by omission is to show that the current testimony is not deserving of belief.

Equate and Translate Omission

Step 5 in the 8-step process as impeachment by inconsistent statement is necessary and very important.  Step 5 is equating and translating.  The cross-examiner must take great pains to ensure the jury understands that the facts given on direct examination are not something this witness ever spoke about prior to trial.

Lay Foundation

The foundational requirement of Step 6 (who, what, when, where, what) must be done with greater care when dealing with impeachment by omission than with impeachment by an inconsistent statement.

This foundation for impeachment by omission is a bit bizarre.  What is being attacked is not a new version of prior testimony, but new testimony where no prior testimony on the subject exists.  Logically, there is no specific prior version.  What there is, at most, is a prior occasion where the witness could have and should have offered such testimony, but did not so.

Impeaching Professionals by Omission

A more though foundation is needed when examining a professional witness.  In such cases their very professionalism and training must be invoked as logically supporting the notion that such important material, if true, would never had been omitted.

Establish the Value of Omission

1. Because of their professionalism, training, or role in the case they, more than others, appreciate and agree with the need to be meticulous; and

2. The report or document about to be discussed is the correct place to put such information.

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