Bennett: The Art of Impeachment With A Prior Inconsistent Statement

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.

19 thoughts on “Bennett: The Art of Impeachment With A Prior Inconsistent Statement

  1. Lee

    “Sir, do you remember ever testifying differently?”

    * * *

    “Would you agree with me sir that a person’s memory is usually better closer to when an event occurred, rather than later.”

    [Attorney looks at jury and asks]

    “But you’re telling us today that your memory has gotten better since you gave you deposition 2 years ago?”

    [witness answers – attorney shakes head and moves to next question]

  2. Richard Kopf

    Brother Bennett,

    Isn’t it true that you can’t take a deposition in a federal criminal case?
    All the best.

    RGK

  3. Mark W. Bennett

    Brother Kopf,
    Mostly yes, but 8 U.S.C. 1324(d) is an exception to the general rule you correctly cite, so it is rare to have a deposition except in immigration cases along the border and there not generally used for impeachment but in lieu of testimony. But as you know and see in your cases there are a variety of writings than can be used to impeach, including GJ, testimony, notes and in a trial we had in our district last week a bank robber informed the world on FB that he was planning to rob a bank. Also, our state courts allow depos so we sometimes have a case that starts out in state court and then is dismissed after it is brought federally and there are depos. Also, transcripts from prior trials where the witness testified. But in general you are right, as usual!!!

    1. Richard Kopf

      Mark,

      Thanks for your reply.

      My obvious point is that without depositions (most of the time) the federal CDL must rely on statements (notes) taken from the witness by government agents. When Fault Lines was alive, I wrote a piece lamenting this state of affairs, entitled: Do you remember when I took your deposition? Trying to impeach a government witness with an FBI 302 (you can tell my age) or equivalent can be quite daunting as you well know.

      By the way, I have yet to see a transcript of an FBI audio interview even though the FBI under AG Holder is said to have adopted a policy of requiring the taping of these interviews. I would be interested to know from you (or anyone else) whether you have been provided during discovery with audios of witness interviews conducted by the FBI or other federal government investigators.

      All the best.

      RGK

      PS I agree with all your practice pointers and particularly your emphasis on preparation as a predicate for effective mpeachment.

      1. Mario Machado

        Judge Kopf:

        This year, I was provided with a video-tape of a post-arrest interview of a client charged in a federal health care fraud conspiracy. Another first was when, this year also, I was provided with audio of a client being interviewed by federal agents for a meth conspiracy (it’s better to call it an “hours long confession, with the vain hope of avoiding an indictment”).

        In Miami’s state courts, with limited exceptions, CDLs can depose any one who appears in the state’s discovery without having to go to court. For misdemeanors, you have to file a motion for deposition. I’m very aggressive when it comes to deposing any one that appears in the discovery, since I appreciate how tough it can be without them.

        There are many CDLs in state court who fail to depose witnesses when given the chance, often times to their clients’ disservice.

        The best to you, Judge.

        Mario

        1. Richard Kopf

          Mario,

          Thanks for the update. Under the Criminal Justice Act, I would approve transcriptions for these interviews if private counsel were appointed under the Act. One would probably need preapproval because of the one-time expense limitation–$500 I think. I should think a CDL would want every such audio and video transcribed.

          All the best.

          RGK

    1. Richard Kopf

      Brother Bennett,

      A brother from my other mother, perhaps. That said, I agree. Harmony creeps me out!

      All the best.

      RGK

    2. Nephew Wormwood

      Uncle Screwtape,
      Is that Triptweeze or Slubgob who you are calling Brother?

      Wormwood wands to know!

      1. Richard Kopf

        Wormwood,

        Return right now to the nether regions. Do not return until your head has been twisted backward, you have been whipped by demons, submerged in feces, burned on the soles of your feet, placed in a boiling lake, bitten by snakes, dismembered, and infected with THE disease. Then, and only then, will you (temporarily) be freed from the eighth circle which is reserved for fraudsters like you. If you fail to heed me, I shall chew on you like I chew on Cassius, Brutus, and Judas.

        All the best.

        Your Loving Uncle

          1. Richard Kopf

            Wormwood,

            You are an idiot. Save yourself. Sell shoes. Then become a virtuous non-Christian and unbaptized pagan. If you heed me, you may cavort with Homer, Socrates, Aristotle, Cicero, Hippocrates and Julius Caesar.

            Don’t take the bar, you moron. Once you pass the bar, permanent residence in the eighth ring is a surety.

            I give you books, and I give you books. And I still get this drivel in return?

            On second thought, take a good bar review course. Then take and pass the infernal test and continue to read SJ while suffering the agony you so richly deserve.

            Your Loving Uncle,

            Not C.S. Lewis

  4. shg

    I’ve never had the benefit of a depo for use in impeachment, but between reports and grand jury testimony, there’s usually enough to harvest for impeachment. I generally prefer to show rather than tell the jury that the testimony is inconsistent. One of my favorite methods is to get an agent to testify that a statement he claims he was told during an interview was critical. I can milk that for a good 3-5 questions about how important.

    Then I pull out his report, reiterate his direct about how carefully and accurately he prepared his report, hand him a copy with a red marker and ask him to circle the place in the report where he wrote the critically important statement down. Of course, he didn’t, so he stares at the page for a few seconds, and eventually says, “It’s not here.”

    Juries love it.

    That said, your point about using it only when impeachment is on a point of significance is extremely important. Play the game with something inconsequential and you loose cred and look like an ass.

  5. wilbur

    The best detective I ever knew told me he learned as much about doing his job right from being cross-examined by good defense eyes than damn near anything else.

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