Here, we concentrate on impeaching the adverse witness. There are 5 a tips here on how to impeach the adverse witness.
Tip 1. Employ the SEVEN TECHNIQUES FOR A SUCCESSFUL IMPEACHMENT.
The techniques you use to accomplish the impeachment are critical. These are seven techniques for a successful impeachment of a witness:
1. Assess the witness and adjust your approach to fit the witness;
2. Lock the witness into the testimony before you impeach;
3. Close all the exits to prevent the witness from escaping;
4. Establish a motive for the witness to prevaricate;
5. Paint a picture for the jury;
6. Surprise the witness; and
7. Use visuals or tangible evidence if possible.
At the top of the list is the technique of assessing the witness and adjusting your approach to fit that witness. David Paul Jones, a British barrister is quoted in Francis L. Wellman’s book The Art of Cross-Examination, as follows: “Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail or the fearful; rough to the ruffian; and a thunderbolt to the liar. But in all this, never be unmindful of your dignity.”
Watch the following cross-examination in A Few Good Men with the seven techniques in mind. Following the movie clip is the list of seven techniques with notes from the cross in the movie.
Here is a portion of the list of seven with notes:
1. Assess the witness and adjust your approach – the cross-examiner shifts to being rough with the witness when the witness becomes a ruffian;
2. Lock the witness into the testimony before you impeach—the cross-examiner locks the witness and is able to preface with a question with “a moment ago you said”;
3. Close all the exits to prevent the witness from escaping—the cross-examiner closed this exit with “any chance he ignored the order”;
4. Establish a motive for the witness to prevaricate—to conceal hiding the fact that he ordered the code red; and
5. Paint a picture for the jury—brush stroke by brush stroke of what happened; and
6. Surprise the witness—with the fact that he was prepared to call witnesses to contradict the witness.
Tip 2. Know the WRECKING CREWS IMPEACHMENT AREAS that may be used to demolish an adverse witness.
When the CONTENT of your cross-examination is the IMPEACHMENT of the witness rather than gathering concessions, the techniques you use a wrecking crew. This is a list of the veritable impeachment wrecking crew:
1. Unreliability of the Observation
2. Faulty Report
3. Unbelievable Reporter
For an effective impeachment with any one of these wrecking crews, you use the techniques described in Step 1 above. Again, the seven techniques are:
1. Assess the witness and adjust your approach;
2. Lock the witness into the testimony before you impeach;
3. Close all the exits to prevent the witness from escaping;
4. Establish a motive for the witness to prevaricate;
5. Paint a picture for the jury;
6. Surprise the witness; and
7. Use visuals or tangible evidence if possible.
For each wrecking-crew impeachment, you can observe how these techniques were applied
Tip 3. Cross-examine the witness to reveal the UNRELIABILITY OF THE WITNESS’S OBSERVATION.
Let’s begin with UNRELIABILITY OF THE OBSERVATION. Here, the cross-examination is designed to show the witness LACKED PERSONAL KNOWLEDGE. For most of these demolitions, there is a corresponding rule of evidence. Here the rule is Rule 602, which reads in part: “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. . .” Naturally, My Cousin Vinny provides a nice illustration of this demolition.
Let’s watch.
Look back at the list of seven techniques for impeachment. Vinny assessed the witness, determined the witness was honest but mistaken and adjusted his approach to the witness. Vinny painted a picture of how the witness’s vision was obscured. And Vinny used photographs to impeach.
Tip 4. Cross-examine the witness to reveal a FAULTY REPORT by the witness
Now, we move on to the second impeachment wrecking crew—The Faulty Report. The concept here is that the report given by the witness is improbable. Cross-examination to show the witness’s account is improbable is supported by Evidence Rule 401. Test for Relevant evidence, which states, “Evidence is relevant if:
(a) it has any tendency to make the existence of any fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
All relevant evidence is admissible, except . . .”
There are three techniques you can employ to show the report is improbable:
1. Reduction to the Absurd Technique
2. Common Sense Technique
3. Contradictory Conduct Technique
Reduction to the Absurd Technique
The 1925 Scopes trial provides an excellent illustration of the Reduction to the Absurd Technique. Here is a brief summary of the facts of the case and the lawyers involved.
• The trial took place in Dayton, Tennessee
• John Scopes was accused of teaching evolution in violation of state statute
• William Jennings Bryan – former candidate for President and head of the fundamentalist movement becomes co-counsel for the prosecution
• Clarence Darrow signs on as co-counsel for defense
• The trial drew such a crowd that they thought the courtroom floor would collapse and they moved the players outside as pictured below.
A book “Inherit the Wind” was written about the trial and it was later made into a movie by the same name. The cross-examination in the movie is based on the trial transcript.
Watch as Darrow cross-examines Bryan.
The jury deliberated 9 minutes and found Scopes guilty. The court levied an hundred dollar fine on Scopes. Bryan died five days later.
Common Sense Technique
The commonsensical approach to impeachment is to force the witness to acknowledge that your position only makes common sense. In the Case Against 8—a lawsuit brought to overturn a California law that marriage must be between a man and a woman, attorney for the plaintiff David Boies cross-examined the other sides expert and forced her to admit what only made common sense as follows:
Boies – Q: Do you believe that children are advantaged by increasing the durability of the relationship of the couple raising them?
Young – A: Yes
Q: And you believe allowing gay couples to marry will increase the durability of the gay couples relationships?
A: Okay, I’d say yes.
Q: And increasing the durability of these relationships is beneficial to the children they’re raising, correct?
A: On that one factor, yes.
Common Sense Technique
The OJ Simpson trial provides a good example of how to employ this contradiction technique. A portion of F. Lee Bailey’s cross-examination of the lead detective Mark Furhman went as follows:
Bailey: Q: Do you use the word “nigger” in describing people?
Ms. Clark: Same objection.
The Court: Presently?
Bailey: Yes.
The Court: Overruled.
Furhman: A: No, Sir.
Bailey: Q: Have you used that word in the past ten years?
A: Not that I recall. No.
Q: You mean if you called someone a nigger you have forgotten it?
A: I’m not sure I can answer the question the way you phrased it, Sir.
Q: You have difficulty understanding the question?
A: Yes.
Q: I will rephrase it. I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a nigger. Is it possible that you have forgotten that act on your part?
A: No, it is not possible.
Q: Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?
A: Yes, that is what I’m saying.
Q: And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, detective Furhman?
A: That’s what I’m saying, Sir.
Mark Furhman
The defense called witnesses to say he used the word, and the defense produced an audio tape in which he said the word. Furhman was later convicted of perjury and sentenced to three years probation – now lives in Idaho.
A limitation on how you may contradict a witness is that you may not pit one witness against another—it’s called “pitting”. Here is an example of pitting from Sullivan v. State, 751 So. 2d 128 (Fla. 2nd Dist. Ct of Appeals 2000):
Q.... You never told those detectives that you were a lookout in this case, huh?
A. No. I didn’t.
Q. So you heard them both get up there and say that you told them that, right?
A. Yes, I did.
Q. And, now, I guess, you're telling this jury that these two detectives came in here today and got up here and lied?
[OBJECTION SUSTAINED]
Q. You heard those two detectives get up there and say that you told them you were a lookout. Is that true?
A. Right
Q. Are you saying they lied?
[DEFENSE COUNSEL]: Objection, Judge. This is improper.
[THE STATE]: I'm sorry, Judge. Either one person is telling the truth.
[OBJECTION SUSTAINED]
In Sullivan v. State, the court held as follows: “In Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993), the supreme court held that questions directed to one witness concerning whether another witness lied on the stand are improper for two reasons: first, because witness credibility is a jury question; and second, because the question itself may lead the jury to believe that the witness being questioned is lying.”
Interestingly, pitting is permitted elsewhere in the world. An article titled Examining Witnesses, in the ABA Journal noted, “The rules limit your ability to ask the witness on the stand to explain or comment on the testimony of another witness. This is a marked contrast to other legal systems such as the British and South African, in which putting others’ versions to the witness is often done.” ABA Litigation Section 155-56 (1972).
Tip 5. Cross-examine the witness to reveal the witness is an Unbelievable Reporter
The Witness made a Prior Inconsistent Statement
One way to show that the witness is unbelievable is to show that the witness made 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).
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.
The Witness has a Prior Conviction
Evidence Rule 609 governs impeachment with a prior conviction. Rule 609 states:
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Above is an actual chart showing the government’s witnesses’ prior convictions. Pistol whipping a priest is pretty serious.
The Witness has been Untruthful in the Past
Cross-examination can impeach a witness by showing the witness’s prior untruthfulness. Here Evidence Rule 608 comes into play. Rule 608 provides:
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
Third, if a character witness is called to testify, cross-examination to show the witness’s untruthfulness may be permitted under the evidence rules. Evidence Rule 608 (above) indicates when that impeachment may be pursued. Rule 404(a) also provides the grounds for such impeachment, as follows:
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; . . .
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