THE THREE I’S OF IMPEACHMENT CROSS-EXAMINATION

It may be somewhat counterintuitive, but the impeachment of a witness is not the primary goal of cross-examination. The primary goal of cross-examination is to persuade the jury to endorse your case theory. Impeaching opposing witnesses contributes to proving your case theory only indirectly. It tends to encourage the finder-of-fact to reject the opposing side’s theory. It is especially true in the realm of criminal prosecution that this rejection of the opposition theory may or may not advance your case theory. If you are the prosecutor and the jury disbelieves your theory, it makes little difference whether they believe the defense theory. Thus, impeachment helps to build your case theory only in a negative way, by eliminating competition from the opposition’s theory.
Impeachment comes in three basic flavors:
1. illogic,
2. incrimination, and
3. inconsistency.

1. Illogic

If you can demonstrate that the witness is saying something nonsensical, you have gone a long way toward impeaching the witness. In a horrific domestic violence case tried a few years ago, a man claimed that his wife had received her injuries by jumping from a moving car. He explained that she had been high on drugs and acting out in bizarre fashion for the past two weeks. The problem with his story, which was pointed out quite well on cross examination, was that he and his wife had just the previous night arrived in Florida on a commercial flight from Nevada. One fertile area of cross examination proved to be a line of questions on how his severely drug impaired wife got through the TSA screening to get on the plane. The defendant also had some difficulty explaining why, after his wife jumped from the moving car, he took her home, hogtied her, and stuffed her in a closet rather than taking her to the emergency room.

2. Incrimination

Incrimination, of course, means conviction of crime, but we use it here in a broader sense to mean any evidence of bad character. Indeed, in many jurisdictions across the nation impeachment by prior conviction has been so sanitized that it can have little effect on the witness’s credibility. In Florida, for example, the only questions that can be asked are:
Q: Have you ever been convicted of [a felony] [a crime involving dishonesty or false statement]?
Q: How many times.
It is essential, however, that the witness be prepared to answer the questions. Unless your witness understands the process of impeachment by prior conviction, you just might be embarrassed to hear a colloquy something like this question and answer from a long-ago burglary case:
Q: Have you ever been convicted of a crime?
A: I did time for manslaughter once, but I didn’t kill him. I just stabbed him. He died in the hospital.

3. Inconsistency

Inconsistency is probably the most frequently employed method of impeachment, especially in cases where depositions have been taken. Sometimes the inconsistency is not an internal conflict between what the witness now says and what the witness once said. Sometimes it is a conflict between what the witness says and another witness or some irrefutable fact. A recent example of this type of impeachment was seen in the trial of George Zimmerman. In the early days of the investigation, Zimmerman had gone on a nationally televised talk show and asserted that he had never heard of Florida’s “Stand Your Ground” law (SYG). Given the pervasive coverage of the public debate surrounding the passage of SYG, this assertion was inherently implausible. The prosecution was not content to simply rely on the inherently implausibility, but went on to call a professor who had taught a criminal justice class which Zimmerman had taken in college. The professor thoroughly contradicted Zimmerman by revealing that he had been taught about SYG in the class. This impeachment of Zimmerman tends to validate what we said at the beginning of this post. Impeaching a witness often does very little toward the primary objective of persuading the finder-of-fact to accept your case theory.

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.