- Attack the witness’s general character for truthfulness.
- Show that, prior to trial, the witness has made statements inconsistent with his testimony.
- Show that the witness is biased.
- Show that the witness has an impaired capacity to perceive, recall, or relate the event about which he is testifying.
- Contradict the substance of the witness’s testimony.
Prior Inconsistent StatementsShowing that the witness told a different story on a prior occasion or that he omitted incriminating facts to which he now attests is a standard form of impeachment. Ideally, a prosecution witness should be impeached with a statement that exculpates the defendant; that was made thoughtfully and close in time to the events described; and that was preserved, either by a stenographer or recording. An experienced criminal defense lawyer will follow these steps in a prior inconsistent statement impeachment:
- Commit the witness to the testimony which you want to impeach, using language that characterizes it as the story of the day. For example: “Your testimony here today is that the man who robbed you had a full beard?”
- Emphasize the witness’s certainty to spread the impact of the impeachment. For example: “You are as certain that the man had a beard as you are about the rest of your testimony?”
- Direct the witness to the time, place, and circumstances of the prior statement. The purpose here is twofold: first, to insinuate to the witness that the lawyer knows all about the prior statement, and the witness cannot wiggle away from it; and second, assuming the prior statement helps the criminal defendant’s case, to build up its accuracy. For example: Q: “The police came to your store within ten minutes of when the robber fled?” Q: “His face was fresh in your mind?” Q: “You wanted the police to find this guy.” Q: “You gave Officer Jones as full and accurate a description of him as you could.” Q: “You wanted it to be dead-on right so that Officer Jones would recognize this guy when he saw him?” Q: “And you told Officer Jones that the robber had a full beard?”
- A smart criminal trial lawyer will draw out the impeachment, breaking it into as many short questions as possible. This creates anticipation in both the jury and the witness. The jury will think it is a matter of importance, and the witness, knowing what is to come, might begin to equivocate and evade. That is the goal. No matter what the witness says, eventually he must admit the questions asked. His failure to do so or his attempts to explain himself will only make him look dishonest.