Cross-Exam: Chapter 18, Advanced Impeachment techniques

Trials are about the facts.  The effect of a solid impeachment of an important witness can be so harmful to the overall credibility of the opponent’s case that recovery is very difficult.

Impeachment is not to say that the witness is maliciously lying.  Witnesses often unknowingly misrepresent the truth; they make mistakes, sometimes honest mistakes.

Whether intentional or unintentional, the skilled cross-examiner must be able to impeach effectively and efficiently when the facts are distorted.

Believability of the witness involves more than just his words.  The revelation of the mistake, deception, or contradiction of the witness in front of the fact finder is what counts the most,

Contradiction of the witness in front of the jury in real time is the most powerful and memorable method of attacking the credibility of a witness though cross-examination.

Types of Impeachment

1. Bias

2. Interest

3. Motive

4. Prejudice

5. Inconsistency with another witness

6. Inconsistency with physical evidence

7. Inconsistency with things not done

8. Inconsistency with common sense

9. Omissions; and

10. Inconsistent statements

Foundation of Impeachment

Impeachment by bias, interest, motive or prejudice takes many forms, in the sense that no particular legal or procedural foundation is required.

Impeachment by inconsistency may require a foundation.

Impeachment is, at times, a double edged-sword.  Both edges cut the witness.  The cross-examiner must be attentive to the fact that the inconsistency may be considered substantive evidence as well as used to impeach.

Impeachments should always occur consistent with the theory of the case.

“I want to hurt the witness” is neither a theory nor a theme.

Rule 1:  Always impeach consistent with e theory and theme.

Rule 2:  Do no impeach contrary to or against the theory of the case.

Rule 3:  Use commons sense when impeaching on matters unrelated to the theme.

i. Is the matter truly unrelated

ii. If so, will is distract the jury

iii. Is the matter important

Whenever an inconsistency is stated in unusual, emotional, or dramatic words that come directly from the witness’s mouth or written statement, it offers the cross-examiner another form of impeachment.

The basic steps of impeachment are necessary not only for foundation purposes, but also to create dramatic effect that assists in maximizing the damage of the impeachment.  Once an inconsistency has been exposed, never hesitate to maximize the damage of that inconsistency.

Break the inconsistency into as many separate changes facts as possible.

Treat each initial story fact as a separate impeachment.

Looping Off the Inconsistent Version

For major inconsistencies that involve sufficient importance in the case, consider having the witness read the inconsistency first.  Then the lawyer can loop (repeat) that inconsistency back to the witness.  The lawyer is forcing the witness to provide a “spontaneous” loop, which is not actually spontaneous because the lawyer has required the witness to read aloud from the transcript or document and thus can plan the loop in advance.

Serial Impeachment

In previous chapters it has been said to spread impeachments throughout the cross exam in order to better control the witness.  However, there are those occasions in which a series of impeachments may be performed back to back as a method of highlighting the overall lack of credibility of the witness.  This technique is termed serial impeachment.

The cross-examiner must be careful to develop only those inconsistencies that are not likely to be viewed as trivial.

Perhaps some inaccuracies are not critical to the issue, but strung together they can begin to lead the listener to questions whether the witness can be trusted on any matters requiring accuracy.

The “Big Bang” Impeachment

Another technique of impeachment is built upon the use of a single important impeachment.

In setting up such a major impeachment it is imperative that the cross-examiner use the opening statement as an opportunity to focus he attention of the fact finder on the coming impeachment.

Having successfully performed the impeachment the advocate should recapture that moment and its importance with in the closing argument.

More Than 1 Inconsistency on a Single Point

1. The cross-examiner can decide to impeach only with the most helpful inconsistent statement and not mention o the jury the other inconsistent statement.

OR

2. The cross-examiner may choose to show to the jury both prior inconsistent stamen and show that they are inconsistent with each other.

Samantha@ambroselawgroup.com

To see trial skills in action visit our website www.thetrialprofessor.com

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Filed under Cross-Examination: Science and Techniques by Pozner & Dodd

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