by Marsha Hunter
Listening to the direct examination of opposing counsel’s witness, you hear what you are fairly certain is an inconsistency from his deposition. Your internal “Impeachment Alert” goes off in your head because it is a significant difference. You begin to consider your options.
Looking at the deposition, you confirm that you are correct. You now begin to plan where in your cross-examination you will insert the impeachment, considering how sympathetic he is, what you need from him before he becomes defensive and annoyed, and how the dramatic arc of the impeachment would fit into the examination.
Your heart begins to beat a bit faster—you now must rise to the challenge of executing a smooth impeachment. If you fail to get the order right, inject the proper amount of scorn/surprise/incredulity in your voice, fumble with pieces of paper, or forget to ask the judge to approach the witness, you risk looking foolish and unprofessional. This has to go well, or the fact finder might not fully understand what’s going on.
If you have practiced for this, your heartbeat will slow with a few deep breaths at counsel table. Just in case you haven’t practiced lately, though, here is a refresher. The skill of impeaching by prior inconsistent statement needs visiting occasionally, since you may not get a chance to use it often. When the opportunity presents itself, you can have fun if the ritual is clear in your mind.
Why do I say this is fun? Because this is where you come as close as you’ll ever get to being an actor in a TV or movie courtroom scene. You can be amazed, incredulous, or sarcastic! Let your hair down and act shocked. When you finish, you can resume your normal professional persona, but don’t forget to enjoy yourself.
I call it a ritual because that is a fair and accurate way to characterize it. Impeachment unfolds in a predictable order. It has a beginning, a middle, and an end. The first few steps are almost always the same. The last step should always be the same. The middle can be short and sweet, or longer and more torturous for the witness—your choice, as long as you have the following options on the tip of your tongue.
Q: (voice dripping with disbelief and amazement) Mr. Witness, are you telling this jury today that the light was GREEN?
A: Yes, the light was green.
Q: (collecting yourself to be professional) This isn’t the first time you and I have talked about this, is it?
(You may make this long or short depending on what has been going on in court. You may have already impeached this witness, so you won’t want to draw this out. This may be the first impeachment in the trial, giving you more leeway to linger on the drama. It is your call.)
Q: You came to my office for a deposition.
Q: It was two months after the accident, correct?
Q: Much closer in time to the accident than today?
Q: When you came to my office for your deposition, your attorney was with you.
Q: There was a court reporter there.
Q: You took an oath to tell the truth?
Q: You told the truth.
Q: After your deposition, you had a chance to read it.
Q: You could make corrections?
Q: In fact, you did make corrections that day.
Q: You also had a chance to sign your deposition.
Q: And, you signed it.
Q: You signed it to show you approved of what was in it.
(If the witness needs a copy of his deposition, you may want to hand it to him, or alternatively, show him your copy as you continue the examination.)
Q: Your Honor, may I approach the witness?
Court: Yes you may.
(Now you have two things to accomplish. Show him the prior inconsistent statement, and read it out loud. Get in, and get out. Do not let him read it or give any opinion about it.)
Q: Do you see Page 38, Line 14?
Q: “Question: What color was the light? Answer: The light was red.” Did I read that correctly?
(Alternatively, you may ask:)
Q: “Question: What color was the light? Answer: The light was red.” Is that what it says?
That’s it. You are finished. STOP! Do not ask, “Is that what you said?” He will argue that she did not say it. Do not ask, “Were you telling the truth then, or today?” He will say, “Today.”
Here is your simple structure, consisting of a succinct beginning and ending, with an expandable middle:
Beginning: Are you telling us today……?
Middle: This isn’t the first time we’ve talked about this, is it? (Your dramatic retelling of The Story of His Deposition.)
End: Did I read that correctly?
My goal is to keep the structure as simple as possible, so you can think of it while you are in the midst of a cross-examination.
What are your ideas? How do you execute a smooth, reliable impeachment by prior inconsistent statement?
Photo by Eric Chan, Wikimedia Commons