How to Impeach with a Prior Inconsistent Statement

 

In prior posts, we have spelled out how to demolish a witness by showing that the witness’s Report is Faulty (the report is Improbable because it is absurd, lacks common sense or can be contradicted. Here we concentrate on impeaching a witness with a prior inconsistent statement. 

Evidence rule Rule 613—Prior Statements of a Witnesses governs the methodology for cross-examining a witness regarding a prior inconsistent statement and the use of extrinsic evidence to contradict the witness, as follows:

 

(a) Examining Witness Concerning Prior Statement. 

In the examination of a witness concerning a prior statement made by the witness, whether written or not, the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. 

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 

There are NINE STEPS TO EFFECTIVE IMPEACHMENT WITH A PRIOR INCONSISTENT STATEMENT

•    1. Avoid nitpicking – nothing worse than a nitpicking cross  

•   2. Recognize the inconsistency – listen carefully to the witness

•   3. Retrieve the prior statement – be prepared

•   4. Repeat the testimony – pound home the current testimony

•   5. Reinforce the truthful statement – show the prior statement was more likely to be truthful (e.g., made closer in time to the event and under circumstance making it likely the witness was truthful

•   6. Reference the prior statement

•   7. Resonate with the jury – pause, then slowly read the statement 

•   8. Read and/or display the statement

•   9. Refute the witness’ denial – use extrinsic evidence.

See Chapter 7 in Cross-Examination Handbook for a more extensive discussion of how to impeach with a prior inconsistent statement.

Now, watch this clip from the great Agatha Christie story Witness for the Prosecution to see how to impeach with a prior inconsistent statement – particularly how to Resonate with the Jury.

Hope you enjoyed that.