Cross-Exam: Chapter 16, 8 steps of Impeachment

Eight Steps of Impeachment By Inconsistent Statement

One of the best methods to expose the weaknesses of the opposing party’s witnesses is through impeachment.

There are many forms of impeachments, including bias, interest, prejudice, inconsistencies, and the revelations of omissions and inconsistent statements.

1. Uncover or Find the Inconsistency

a. Look at the depositions

b. Look for signatures on reports and interviews

c. Source the authenticity of the statement

2. Physical Preparation of the Cross-Examination

a. Create a chapter demonstrating that an inconsistency has been developed

b. Then put chapter in proper sequence

c. If impeaching from tapes of DVDs, pre-select the portions you want to use and place them on a separate tape or DVD

d. Regardless of the form in which an inconsistency is found, the exact documentation of the location of each inconsistency is at least as important as the physical comparison of the inconsistency itself.

e. If the cross-examiner cannot find it and prove it, the inconsistency does not exist for the fact finder.

3. Establish the Current Version of the Testimony to be Impeached

a. This is the least difficult step because in almost all cases the current version of an act was established in direct exam or through leading questions.

b. In order to maximize the impact for the upcoming impeachment of the witness, the cross-examiner needs to remind the jury one more time of the current version.  This is the exception to the ordinary rule that the cross-examiner should avoid repeating the harmful portions of the direct testimony.

c. There are two separate techniques for accomplishing this step:  restate the direct testimony or summarize the text to be impeached.

d. Phrases to set up impeachments:  “As I understood, your testimony on direct-exam…your latest thought is… ”; Let me see if I understand this:  Now you are telling this jury that… ”; Let me see if I understand today’s version of events…”

4. Tie the Witness to the Current Version to be Impeached

a. The goal is to teach the jury that the accuracy of the entire story is in question because critical parts of that story have changed.

b. Develop a chapter using facts that indicate the earlier impeaching version is more believable

5. Equate or Translate the Conflicting Versions

a. Equating or translating sometimes requires the cross-examiner to have performed further investigations.

b. A subtle context of equating or translating comes up when a witness has said in a pre-trial statement that the witness “does not know” a particular fact.  The cross-examiner can require that the witness acknowledges that he didn’t know something because the witness was not in a position to know.

6. Expose the Inconsistent Statement

a. If the judge and jury know that the cross-examiner is prepared and consistently questions in a goal-directed manner, they will sense that there is meaning to a repetition of a portion of the direct exam.

b. There are several devises available to signal to the judge and jury that an impeachment by inconsistent statement is about to occur:

i. Silence

ii. Physical movement

iii. Proper foundation laid – there is a difference between a dishonest witness and a witness who is merely mistaken

iv. Have the fact finder visualize the first statement to make the prior statement seem to be more accurate by fully developing the foundation material.

7. Maximize the Damage Caused by the Inconsistency

a. The cross-examiner must prove the reliability of the earlier version just as if the original version was a goal-fact to be established through conventional cross-examination techniques.

b. The cross-examiner must put the fact into its context by beginning at the top of the chapter that established the goal-fact.

8. Listen to the Direct Examination

a. Every time a witness speaks, they have the opportunity to produce inconsistent statements.  This can happen before trial, during direct-exam, and earlier portions of the cross-exam.

b. The cross-examiner should listen not only with her ears, but with her eyes.  Often nonverbal language can uncover an inconstancy

c. Although cross-examination is a science, feeling or instinct should not be abandoned.  The way the cross-examiner feels about the witness after direct-exam may affect how the cross-examiner approaches the cross-examination.

An advanced version of the 8 steps:  The cross-examiner ignores the existence of the version given on direct-examination and begins the cross-exam on the issues as if to establish the earlier version as the only version.  In essence, the cross-examiner proceeds as is there was no new version.  This is accomplished by performing the entire chapter on the point as originally written.  The cross-examiner puts the witness in a position where he must announce the new version, and thereafter be impeached upon it.

Handling of the Documents

Generally, the rules do not require the cross-examiner to hand the documents to the witness and show the witness the exact inconsistency.  However, it is often better practice to do so because it assures the jury that the cross-examiner is being fair in dealing with the witness.  This also permits the witness to react visually to the contradiction in real time.

There can be tactical advantages in requiring a witness to read the inconstant statement; or, on the other hand, the lawyer reading the statement – as the lawyer can control the emphasis, tone, and pace of the statement.  Flexibility is key.  The circumstances and the demeanor of the witness must be factors weighed in making this determination.

 

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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