HOW NOT TO IMPEACH WITH DOCUMENTS

I (Bob Dekle) recently had the privilege of watching a very competent prosecutor conduct a post-conviction evidentiary hearing. The issue was mental competence, and the state’s expert had testified quite convincingly on direct examination. The defense attorney arose and began a performance which can only be characterized as a case study in how not to conduct an impeachment from a report. He tried to get the expert to give the testimony he wanted, and she refused. He told her that the desired testimony was in one of her reports. She replied that she didn’t think that was the case. He indignantly demanded that the expert retract her statement and testify in conformity with his recollection of the report. She refused to do so. He then began looking for the statement in the report. He diligently searched the several pages he had carried to the lectern with him, and when he finished, he searched back through them again. Failing to find the statement in the papers at the lectern, he went back to counsel table and began to root through the papers scattered about the top of the table. After an interminable period of time, he decided that the statement was not in any of the papers on his table. He refocused his search from the papers on his table to a banker’s box full of documents on the floor by counsel table. The entire courtroom waited silently as he scoured the papers for the statement. At last he found the document he was looking for. He turned to the pertinent page and read the statement. It was not as he had remembered. It was perfectly consistent with the expert’s live testimony. He apologized to the expert and moved on to ask questions on another subject.

He could have avoided this courtroom fiasco by doing a little preparation. All the reports should have been tabulated and arranged in some semblance of order. This could have been done by sequentially numbering the reports, putting them in a three ring binder, and making a table of contents. Or it could have been done by putting each report in a folder, labeling the folders, and arranging the folders in alphabetical order in a banker’s box. The next step would have been to read through all the reports, index every important statement contained in the reports, and print an alphabetical index to the report.

His preparation done, he would then have been ready to perform an efficient impeachment. When the expert gave the uncongenial testimony, he should not have mentioned the fact that he believed she had made contrary statements until he had gone to his index, retrieved the report, and read the statement. When he had assured himself that he truly had an inconsistent statement, he could then embark upon an efficient, effective impeachment. Of course he could not have done that with this expert because there was no inconsistency. What would have happened had he properly prepared would have been that he would have saved himself some time and embarrassment.

I’ve just described the low-tech way to retrieve documents for impeachment purposes. In the computer age, there is an even faster way. Reduce all documents to PDF. Render the documents OCR readable. You can then use the search function in your PDF program to find the key phrases in milliseconds.