Impeaching An Adverse Witness

How to undermine the credibility of an adverse witness in a criminal trial In most criminal cases, the goal of cross-examination is to render a witness less believable, either generally or on a particular point. There are five acceptable methods of attacking a witness’s credibility (also called “impeaching” a witness):

  1. Attack the witness’s general character for truthfulness.
  2. Show that, prior to trial, the witness has made statements inconsistent with his testimony.
  3. Show that the witness is biased.
  4. Show that the witness has an impaired capacity to perceive, recall, or relate the event about which he is testifying.
  5. Contradict the substance of the witness’s testimony.

This article will discuss impeachment with a prior inconsistent statement and with a prior bad act (i.e., conviction of a felony or a crime showing dishonesty).

Prior Inconsistent Statements

Showing 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:

  1. 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?”
  2. Emphasize the witness’s certainty to spread the impact of the impeachment.
  3. For example: “You are as certain that the man had a beard as you are about the rest of your testimony?”

  4. 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:
  5. 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?”

  6. 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.

Introducing the prior statement

If the witness admits that he made the prior statement, the impeachment ends. However, if he denies or does not remember making it, the criminal defense lawyer must introduce extrinsic (outside) evidence of the statement itself. If the witness wrote the statement, the defense lawyer can have him authenticate the writing. If it was prior testimony, the defense lawyer can ask the prosecutor to stipulate that the questions and answers read back to the witness accurately reflect the prior testimony given on the prior occasion. Impeachment with an oral statement requires the defense attorney to call as a witness the person to whom the statement was made (unless the witness being impeached can be persuaded to accept the statement some other way, perhaps by refreshing his recollection with a written report memorializing the statement). Different jurisdictions have different rules about whether a witness must be confronted with a prior statement before extrinsic evidence may be introduced or whether the witness be given an opportunity to explain the statement. Whatever the rule in your jurisdiction, the best practice is to confront the witness on the stand so that the defense attorney can emphasize the inconsistency and give the witness the opportunity to equivocate about it, thereby further undermining his own credibility.

Compare: prior consistent statements

Prosecutors take the position that if the defense lawyer impeaches the witness with one prior statement, that “opens the door” to the admission of all the other consistent statements the witness may have made at the same time. An experienced criminal defense lawyer will resist the “door opening” assertion by arguing that only statements that are necessary to explain fairly the inconsistent statement should be admitted, and, moreover, that the prosecution must meet the stringent requirements for the admission of a prior consistent statement. That is, the statement must both (1) rebut the improper influence or motive or other reason that allegedly gave rise to the recent fabrication; and (2) have been uttered before the improper influence or motive existed. Impeachment with a prior inconsistent statement does not give rise to an inference of improper influence or motive. It merely suggests that the witness is not to be trusted because he told different stories on different occasions. Refreshing recollection If the witness’s prior inconsistent statement lies in a report authored by another person, such as a police report of what an eyewitness said, the defense lawyer might have to call the police officer to admit the extrinsic evidence of the statement. To avoid this, the defense lawyer can attempt to have the witness adopt the statement by refreshing his recollection with it. Memory may be refreshed with writings authored by a person other than the witness and even by non-writings. Often, the witness will lead the way by expressing his disagreement with the prior statement in words such as, “I don’t remember saying the guy had a beard.” If the witness does not provide this lead, one effective technique is to repeat the answer, rephrased as a statement about memory. For example: A: “I didn’t say the guy had a beard.” Q: “So you don’t remember telling Officer Jones that the robber had a beard?” A: “No.” Q: “Let me show you Officer Jones’ report from that night. Take a look at what I have marked as Defense Exhibit M and read the third paragraph to yourself. Does that refresh your recollection about what you told Officer Jones?” A: “I guess I told him the guy had a beard.” Even if the witness still refuses to admit that he remembers or made the prior statement, by this point, the jury will know that Officer Jones’ report states that the witness said, “Beard.”

Prior bad acts and criminal convictions

The rules of evidence allow a criminal trial lawyer to impeach a witness with the fact that he has been convicted of a felony or a crime showing dishonesty. Prosecutors usually elicit the fact of convictions during the direct testimony. The aim of cross-examination is to delve into the sordid facts underlying the conviction. The details give the jury a better sense of the witness’s character and dishonesty and also generate more questions likely to cause the witness to squirm. He probably has been well-prepared to admit his conviction, but often will deny or minimize questions about the bad deeds themselves. If the judge forbids inquiry into the underlying facts, a smart criminal defense attorney may argue that the Rules of Evidence also address acts of dishonesty, whether charged or not.

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