BUILDING BLOCK #5

 

IMPEACHMENT

 

At the end of the course you should be able to perform the following with regards to the impeachment of a witness:

 

1.                  Recognize inconsistencies in the witness’ testimony and decide whether to impeach.

 

2.                  Know whether the inconsistency leads to impeachment by prior inconsistent statement or to impeachment by omission.

 

3.                  Know whether you want the jury to adopt the prior inconsistent statement as true or whether you want it to believe that both the present testimony and the prior inconsistent statement are false.

 

4.                  Know the steps for and be able to do an impeachment by prior inconsistent statement:

 

            C = CONFIRM the inconsistency.

 

With an incredulous voice, confirm the previous testimony, e.g., “Are you telling us that the light was red?”

                        “In fact, you have testified/said before that the light was green?” OR

 

Ask what is in the prior inconsistent statement, using the exact language of the statement, e.g., prior inconsistent statement says the light was red; ask “The light was red?”

 

            C = CONFRONT the witness with the prior inconsistent statement.

 

Ask “That hasn’t always been your testimony?” or “You have testified/said in the past the light was red?” 

 

Hand the statement to the witness and lead witness to admitting it is her statement.

 

                        If deposition, give page and line.

 

Read the impeaching words to the witness and have witness admit you have read them correctly.

 

           

 

 

C = CREDIT the prior inconsistent statement.

 

Build up the accuracy of the statement–internally (under oath, close to time) and externally (other facts in statement are true)

           

C = CONTRAST (with caution) the prior inconsistent statement with current

       testimony.

 

                        “Your deposition does not say the light was red?

 

                        It says the light was green?”

 

5.                  Know that impeachment by omission is the same except that the statement is credited by building up why the statement should have contained the facts being testified to today.

 

6.                  Know how to rehabilitate a witness who has been impeached.

 

“Counsel a few moments ago asked you about the color of the light.  Is your deposition accurate?”

 

            “Why isn’t it accurate?”

 

            “What was the color of the light?” OR

 

Suggest excuses to the witness, e.g., “How were you feeling on the day your deposition was taken?” OR

 

            Ignore.

 

7.                  Know the differences between the approaches to impeachment under the Federal Rules of Evidence and the Texas Rules of Evidence.  Under the Texas Rules, it is necessary to tell the witness of the contents of the impeaching statement, the time and place of the statement and the person to whom the statement was made.  The witness must also be given an opportunity to explain or deny the statement.  These steps are necessary before further cross examination on the statement or admission of extrinsic evidence is offered.  If the witness unequivocally admits making the statement, no extrinsic evidence is permitted.  Impeachment under the Texas Rules often begins with “Have you ever testified differently than . . . ?”