For whatever reason we trial lawyers love impeachment. When the witness says something that is inconsistent with what he or she said in a prior statement we can’t wait to crush him or her in front of the jury. Maybe this is something that is being encouraged in law school. Or maybe this is something that we pick up from watching too many lawyer movies. Whatever the reason is, this behavior can be detrimental to your case. Before you impeach a witness you have to ask yourself: In my trial story what is the reason why this witness is giving inconsistent testimony?
What’s The Witness’ Role In Our Story?
Before you decide to conduct impeachment of a witness it is critical that you have a defined role for all the characters in your story. Every witness plays a role in your story, and how you impeach that witness will depend heavily on what that witness’ role is. There’s no need to crush the old man who simply saw what happened and surprised you with a bad fact during his testimony. On the other hand, you better destroy the villain who is going to come into the courtroom and lie about what your client did or did not do. You should have these roles defined ahead of time so that you know how to handle whatever impeachments may materialize during the trial.
The Witness Is Lying
This is the most common reason to conduct impeachment of the witness. In your trial story this witness is lying and you found yourself an opportunity to impeach him/her during trial. The words and demeanor we use for this impeachment has been ingrained in most trial lawyers’ minds since law school. You use a firm tone, you accredit the importance of the previous statement, you confront the witness with what he/she said in that previous statement. You pause after the witness reluctantly admits that he/she did in fact make that inconsistent statement before trial. You let the jury know with your demeanor and tone that this guy/gal is lying because in your story this person is lying.
The Witness Is Confused
Sometimes, though, things are a bit more complicated. In your trial story this witness is not lying, yet the witness comes into court and gives testimony about a critical fact that is devastating to your case. You happen to have a way to impeach the witness but you need the jury to believe that the witness is not lying because the witness has good testimony for your side of the case as well. The tone, demeanor, and method of impeaching this witness has to be very different from what we do to the lying witness. Your tone has to be on the softer end (this witness has done nothing wrong, he is just confused, it happens to the best of us). Your method has to be more relaxed (your questions need to be more general). For example:
Q: Mr. Brown, you’ve testified today that the light was red.
Q: It’s been four years since you saw this accident.
Q: You were not injured in this accident.
Q: Your car was not damaged in the accident.
Q: You do not know any of the people involved in the accident personally.
Q: This accident is not something that impacted you directly.
A: No, I just saw what happened.
Q: And because of that this is not something you’ve been constantly thinking about every day for the last four years.
A: You’re right.
Q: It is hard to remember all the details of something that happened four years ago.
A: I’d agree with that.
Q: Luckily though, you had an opportunity to give a statement in my office.
Q: You gave that statement about 6 months after the accident.
Q: On that date you testified that, counsel page X, line Y of the witness’ statement, the light was green.
There are many, many ways of doing this type of impeachment. The important point to get out of it is that you’re letting the jury know up front that you’re not calling this guy/gal a liar. You do that with the setup about how it is difficult to remember details since it has been so long. Another aspect of this method is that if your demeanor is right the witness will not become combative because the witness will not feel embarrassed or feel that you are implying that he/she is lying. In fact, you are letting the witness know precisely the opposite, you are telling the witness “look, I don’t think you’re lying, we all make mistakes,” without really saying those words.