After some 400 jury trials, I have seen many attempts to impeach witness testimony – sometimes successful, sometimes not. There are many techniques one can use to impeach a witness with an inconsistent prior response. Trial lawyers tend to have their own techniques.
Here is a summary of what I think are best and worst practices:
- When impeaching, be nice, but firm, to the witness. Translation: Jurors do not like assh**e lawyers. You generally get more with honey than vinegar.
- There is one exception to the above rule. If the jurors think the witness is despicable, disgusting, or a pathological liar, increase the aggressiveness of the cross. The witness has essentially given you “permission” to be tougher and rougher with them.
- Do not attempt impeachment if the difference is insignificant or laughable.
Example 1. Q: Isn’t it true, in your witness statement, you said the perpetrator was about 6’4” tall or perhaps an inch shorter? And now you just testified that the perpetrator was between 6’3” and 6’4”
Example 2. Q: How fast was the getaway car traveling? A. Very fast, probably 30 miles over the speed limit. Q: Isn’t it true, in your prior testimony, that you testified, also under oath, “that the getaway car was traveling quite fast, probably 30 miles over the speed limit?”
- A series of insignificant impeachments does not play well to jurors. One important impeachment is far more beneficial than 10 insignificant or minor ones.
- There are several different mechanics or methods of impeachment.
The one I like the best is where the lawyer approaches the witness with the written prior inconsistent statement, shows it, and gives it to the witness. The lawyer then asks the witness to read the impeaching words. Thus, having the witness impeach using their own words, rather than the lawyer doing it. There are many impeachment methods. I encourage lawyers to discuss them in reaction to this blog post.
- Be exceptionally well prepared for the impeachment with your impeachment materials. Do not fumble.
The most effective impeachment is dramatic. The drama and effect is diluted by lack of preparation and fumbling.
- The key to impeachment is to ask a precise and simple question in the deposition.
Then ask the same question at trial. If the answer is different, the impeachment is exceptionally well set up. The problem that often arises at trial is that the initial question is confusing or compound, so the witness can squirm out of the impeachment.