Impeachment is the process by which you discredit the credibility of a witness. Not only is it one of the most effective things that you can do on cross examination, it can be one of the most dramatic moments in a trial. Do it wrong, however, and you can come across as inept. Even worse, the witness could beat you at your own game by making it look like you are the one with the wrong information. So, impeachment is too important to avoided, but it is also too potent to be handled without confidence. Follow the steps outlined below. Practice them. And then you will be exhilarated when you get a chance to impeach.
The two most common methods of impeachment are impeachment with a prior inconsistent statement and impeachment by omission. Master both.
Impeachment With a Prior Inconsistent Statement
This type of impeachment arises when one of the witnesses testifies to something that is different from what appears in your discovery.
In the criminal defense setting, this typically happens when someone testifies to something that is different from what they told the police. In this circumstance, you must give the witness an opportunity to admit making the statement. If they persist in their denial, you must perfect the impeachment by calling the witness to whom the statement was made.
Let’s take a closer look.
Let’s say that, on direct examination, witness Jones testified that he saw your client pull the trigger. On the day of the shooting, however, he told the police that he was too far away to make an identification.
First, you must give the witness the opportunity to admit that he made the statement. If you don’t, your impeachment is improper. Second, start with the fact that you’re trying to elicit, then move on to the statement. Like this:
Q. Mr. Jones, you don’t know who shot Rodney?
A. Yes I do. It was your client.
Q. You were standing too far away?
A. No. I could see just fine.
Q. That’s not what you told Officer Baker.
A. Yes it is. I told him I saw everything.
Okay, that’s it for this witness (on this issue). The impeachment has been set up. Now you perfect it by calling officer Baker.
[Two things before going further.One, if the witness admits making the statement to officer Baker (if, for example, he says, “yeah I told him that, but that’s only because I was afraid,” you’re done. The witness has been impeached. You cannot call Officer Baker for the purpose of eliciting this statement, since you’ve already obtained it.
Two, you cannot ask Jones about a statement to Baker unless you have a good-faith basis to believe that the statement was actually made. In other words, you cannot make up a pretend statement for the purpose of misleading the jury. You must be able to prove up the impeachment. Failing to do so would be unethical.]
The Defense Calls Officer Baker
Q. Officer, did you meet with Jones on the day of the shooting? [Note that you can’t lead since, presumably, you’re calling Baker in your case-in-chief and she is, therefore, technically a friendly witness.]
A. Yes, I did.
Q. And did you ask her whether she saw anything?
A. Yes.
Q. And what did she tell you?
A. She told me that she could not see anything, because she was too far away.
Done. Jones has been impeached. Note that this is a very quick impeachment. You can draw it out a little for effect, if you want. For example, you could highlight the officer’s credentials or meticulous note-taking before asking about the conversation with Jones.
So, that’s a general overview of how you impeach with a prior inconsistent statement. Keep in mind that the prior statement need not necessarily have been oral. You can impeach with a writing, a picture, a videotape, whatever. All that is required is that the information that you have in your possession somehow contradicts the witness’ trial testimony.
Impeachment By Omission
The opportunity to impeach by omission arises when a witness testifies to something at trial for the first time. In the context of a criminal trial, this usually means that a police officer has attributed a statement to your client that appears in none of the police reports.
[Needless to say, in order to impeach in this way, you must be certain that the statement does not, in fact, appear anywhere. In other words, you must know the facts of your case cold. There is nothing more mortifying than asking a witness to show you where the statement is – and then having them show it to you.The key to successful impeachment by omission is remembering this acronym: ARC.
Accredit the document that should contain the statement.
Recommit the witness to the statement, and then
Confront the witness with the fact that the statement is absent from the document.
Here we go. [As with impeachment by prior inconsistent statement, start by asking the witness about the ultimate fact that you’re trying to establish, then go on to the fact that the statement was missing.]
Q. Officer, good afternoon.
A. Good afternoon.
Q. You just testified that Mario told you he was at the White Castle that night, did you not?
A. Yes.
Q. That’s not true, is it?
A. What do you mean?
Q. He never told you that.
A. Yes, counselor, he did.
Step 1: Accredit
Q. How long have you been a police officer? [Note: This is not a leading question, but that’s okay because the answer doesn’t matter.]
A. Five years.
Q. And at the beginning, you had training?
A. Yes.
Q. On how to write police reports?
A. Yes.
Q. Because police reports are important?
A. Yes.
Q. You rely on them to remember exactly what happened?
A. Yes.
Q. The prosecution relies on them when they decide whether to charge a case?
A. I don’t know what the prosecution does with them, counselor.
Q. Well, you submit them to the prosecution?
A. Yes.
Q. And, presumably, they read them?
A. Yes.
Q. And you respect the work they do, don’t you?
A. Yes.
Q. And you want to help them make the right decisions, don’t you?
A. Yes.
Q. So you try to write good reports?
A. Yes.
Q. And you’ve been trained that a good report is complete?
A. Yes.
Q. You wouldn’t leave anything important out of a report, would you?
A. No. I wouldn’t?
Q. And a good report is accurate?
A. Yes.
Q. You make certain to get everything right?
A. Yes.
Q. And, obviously, your report is truthful?
A. Yes.
Q. You wouldn’t lie. Would you officer?
A. No. I wouldn’t.
Q. And you wrote a complete report in this case, didn’t you?
A. Yes.
Q. An accurate report?
A. Yes.
Q. A truthful report?
A. Yes.
Step 2: Recommit
Q. It’s your testimony today that Mario told you that he was at the White Castle?
A. Yes. He did tell me that.
Step 3: Confront
Q. Nowhere in your report, officer, does it say that?
Possible Answer 1: No. It does not say that. If you get this answer, you’re done. The officer has been impeached.
Possible Answer 2: Yes. It does say that.
What now? Follow these steps:
1. Mark the report, by writing ∆’s 1 (or whatever number you’re at) on it.
2. Show it to your opponent.
3. Ask the judge to approach the witness.
4. Hand the witness the exhibit and say:
Q. Officer, I’m handing you what I’ve marked as Defendant’s one, for identification. That’s your report, is it not?
A. Yes it is.
Q. Using this red pen, would you please circle where your report says that Mario made that statement?
A. I can’t. It’s not in there.
[You don’t have to do the red pen thing. You can simply say, that statement appears nowhere in your report? But the pen thing is kind of fun. Just be sure that there is nothing in there for the witness to circle!]Possible Answer 3: I don’t remember what the report says.
No problem. Refresh the witness’ recollection by saying:
Q. You don’t remember what you wrote in your report?
A. Not everything, no.
Q. If I were to show you your report, would that refresh your recollection?
A. Yes.
Now, follow these steps:
1. Mark the exhibit.
2. Show it to your opponent.
3. Ask to approach the witness.
4. Hand the witness the report, and say:
Q. Officer, I’m showing you what I’ve marked as Defendant’s one for identification. Is that your report?
A. Yes.
Q. Take a look at that and let me know when your memory is refreshed.
A. Okay.
Q. Is your memory refreshed?
A. Yes.
Q. Nowhere in that report does it say that Mario told you that he was at the White Castle. Isn’t that true?
A. Yes. That’s not on there.
The witness has been impeached.
Conclusion
In the trial arena, nothing gets your blood pumping like impeachment. Get comfortable with it, and you will soon look forward to the little embellishments that some witnesses just can’t keep from making during their testimony.
Good hunting!