This post is the follow-up to my first, where I discussed the traditional method for impeaching a witness with a prior inconsistent statement in a deposition. This technique involves the three C’s – commit, credit, confront. I’ll now go into some advanced, and arguably more controversial, aspects of impeaching the witness.
Why are we impeaching the witness in the first place? The answer should be obvious, but sometimes I think lawyers get so caught up in the technique of impeachment that they forget their primary goal. When you’re impeaching someone with a prior inconsistent statement, you’re doing so for one of two reasons, (a) you want to hurt the witness’s credibility in the eyes of the fact finder and/or (b) you want to introduce the prior inconsistent statement to the fact finder. (Note that often the prior statement usually isn’t considered “evidence,” but once the fact finder has heard it, they know it. You can’t “unring” the bell, so to speak.)
Lawyers often forget that most juries have no trial experience and they have short attention spans. So before you blindly follow the “Three-C,” technique you need to ask yourself if there’s a more effective way to impeach the witness given your specific circumstances. What follows are some suggestions that are unorthodox, but may help you in achieving your ultimate goal, which is to influence the jury.
1. Don’t always commit the witness to their current testimony.
In fact, if the witness says something for you at trial that is better then what they said in the deposition, then why bother impeaching at all? Some people may answer that they would rather kill the witness’s credibility overall, but I believe that you only want to impeach a witness if their statement at trial is harmful to you. Of course, it’s a judgment call based on the facts. But in general, unless the witness contradicts himself many times over, it’s unlikely that a single impeachment instance will do more good than simply accepting their testimony.
If the witness says something that isn’t good for you, then why have the witness repeat their testimony at trial and reinforce the bad testimony? If the witness is stating a single fact over-and-over on direct examination, then the commit is already completed during direct. But if the witness makes a statement that’s harmful, and that statement was not a key theme of the witness’s direct testimony, then you’re often better off skipping the “commit.”
This suggestion is not meant to be a rule. It’s meant to point out that there’s no “rule” here and that you have to judge the testimony and its effect on the fact finder. If the testimony is not particularly harmful or helpful then it helps to have the witness commit to their current position before proceeding with the impeachment.
2. Do more than just read the conflicting testimony.
Most impeachments involve a lot of crediting the prior statement, often 20+ questions that take several minutes. After all that buildup, they read the impeaching (conflicting) testimony, and then consider themselves done, the witness’s credibility is in tatters, right? Well reading a single conflicting statement from a deposition and then moving on seems awfully anti-climactic. It sure does seem like there should be more to it. My trial team coach and many trial books admonish lawyers not to ask the “were you lying then or are you lying now” question. Why do they do this? They do it because the natural inclination of every aspiring trial lawyer is to ask that seemingly damning question. But such a question will usually draw an objection and will be sustained. Here’s a thought - if it’s the natural tendency of someone who isn’t trained to ask that final, argumentative question, then what do you think the jury expects?
Juries today often have a very warped view of trials because most of their trial information comes from lawyer TV shows. I can’t watch such shows because my wife gets too upset when I explain to her why every courtroom scene is totally unrealistic (stay tuned for that blog post – How to ruin TV for your spouse). But the point is that your jurors expect and want to see fireworks and theatrics. If you give them what they want and expect, you’ll keep them engaged. Nothing is worse than being bored in a trial. It happens too much and it shouldn’t.
My suggestion is to not totally stop the impeachment after you have exposed the conflicting prior testimony. You probably should refrain from the “were you lying then or are you lying now” question, at least for a while. But don’t just walk away. Instead, if you want maximum effect, twist the knife. Here’s an example, which picks up at end of a “normal” impeachment:
Lawyer (reading): “Answer: So I turned around but I was too late to see clearly what color the car was.”
Lawyer: Did I read that correctly?
In this example the witness claimed at trial that he saw the car was blue. Under the normal rule impeachment is now “complete.” But think about what happens if you stop now. On re-direct, the other attorney will likely stand and try to rehabilitate the witness. They may have even planned an escape route (explanation) ahead of time. The witness might say that they only remembered after the deposition ended, or that they couldn’t see the exact color, but were sure it was dark blue.
Instead consider what the jury will think if you follow up:
Q: So you turned around too late?
A: Well, I did see the car.
Q: But in your deposition, your sworn testimony, you stated you turned around too late to see the color of the car, right?
A: That’s what I said, but I know the car was blue.
Q: In your deposition you did not say you know the car was blue, did you?
Q: In fact, you didn’t even try to guess or speculate on what color it was did you?
A: Not in the deposition.
Q: So you are speculating now about the color?
A: I’m sorry I don’t understand.
Q: You don’t actually know what color the car was?
A: No. I know it was blue.
Q: To be clear, six months ago you did not know the color of the car, but today you do?
This line of questioning has become somewhat argumentative, but at this point the witness is in a really bad spot because it will be difficult to give a plausible explanation for the inconsistency. If you avoid giving the witness a hard time, then they can state a few platitudes on re-direct and potentially get away with really inconsistent statements. If you belabor the point then (a) the jury gets to see some fireworks, which keeps them engaged, and (b) the witness is pressed and looks more foolish because they can’t get away with a dismissive and incoherent statement when explaining away the inconsistency.
3. Let the witness read his or her own testimony.
Conventional wisdom is that the lawyer should read the prior conflicting testimony so the lawyer can control the intonation, inflection, and pace of the reading. That makes sense. But how powerful is it when it comes out of the witness’s own mouth? Moreover if the witness flubs even one word then you can re-re-read the transcript, correct the error, and reinforce the old testimony yet again. Plus, if the witness tries to mumble or somehow “hide” what they said before, I can guarantee you that the jury will realize it. There’s nowhere to hide. If the transcript section you plan to use is short, let the witness read it aloud. It will be even more powerful to the jury.
The conventional approach to impeachment is fine. It’s safe and it usually conveys what you need. But if you want to turbocharge your impeachment and make it stick with the jury, then you have to take some risks. If you do it right, the reward will be impactful on the jury many times over, especially when compared to the “standard” way of doing it.