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Quote of the Day - “you can also argue that the media did a lot to rehabilitate his reputation in recent years. A lot of people feel sorry for him. - Lucy Dalglish

How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 5

Witnesses on the stand occasionally need to be impeached - calling into question their character, truthfulness, bias, observational skills or a host of other bases. 

You can impeach a witness through prior criminal convictions, but typically it must be a felony conviction within the last ten years.  If the conviction is the same as the one the defendant is on trial, then you may not be allowed to introduce it into evidence.  You can impeach a witness based on reputation for bad character, but that attack would allow the attorney for the witness to rehabilitate the witness's good character, and you're left with a swearing match.

Not a good result. 

You can impeach a witness with bias, such as the witness's relationship to the other party.  If the witness is an expert, then you can expose that the expert is being paid.  Occasionally, you will discover the witness was not in a position to observe the incident, and you can impeach the witness accordingly.

One of the most common ways to impeach a witness is through a prior, inconsistent statement.  Typically, the witness will have testified about the incident in a prior proceeding.  In a civil case, you most likely will have taken the witness's deposition.  In a criminal trial, the witness may have testified at the preliminary hearing. 

All you need is the transcript, and a three-step process:  (1) credit; (2) confirm; and, (3) confront.  Let me explain how it works.

On direct examination (the other side calls the witness first), the witness testifies that when he saw the accident occur, the light was red.  In the earlier deposition the witness gave, he had testified it was green.  Your client wants the light in the green position, so it's important to discredit the now "red light" witness before the jury.

When it's your turn to cross-examine the witness, you have your copy of the deposition testimony about the green light at the ready.  You will have already given the judge a copy of all the witness depositions before the trial started.

Step One:  Credit the earlier statement.

Examiner:  When you testified moments ago, you said the light was red, isn't that correct?

Witness:  Yes, that's what I said.

Step Two:  Confirm the earlier testimony.

E:  You remember testifying months ago in my office about this accident, don't you?

W:  Yes.

E:  In fact, when you gave your testimony earlier, you took the same oath to tell the truth that you took again here today, didn't you?

W:  Yes I did.

Step Three:  Confront the witness with the earlier testimony.

E:  I'd like to invite the Court's attention to page 30, lines 5-10 of W's deposition transcript, which I have just shown to opposing counsel.  May I approach the witness?

Judge:  Yes.

E:  [Showing the witness the copy of the deposition transcript]  Mr. Witness, please read along silently on page 30, lines 5-10 as I read it out loud.  In your earlier deposition, I asked you the question, "When you saw the accident, was the light red or green?"  You answered in response, "Green."  I read your prior testimony, correctly, didn't I?

W:  Yes.

E:  But you testified moments ago today that the light was red, didn't you?

W:  Yes, I did.

Viola, you have successful impeached your witness, and you can argue away in your closing argument.  Opposing counsel will next have the opportunity to rehabilitate the witness, but the damage has been done, and in this case, the rehabilitation will likely be ineffective.  

Posted by J. Craig Williams on 1/10/2008 at 19:34 Comments (0)


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