Cross-Examining the Unbelievable Witness

When the CONTENT of your cross-examination is the IMPEACHMENT of the witness, the techniques you use to accomplish the impeachment are critical. 

Prior posts here have been devoted to great cross-examination demolitions—a veritable wrecking crew of impeachments. This is a list of the impeachment wrecking crew, and we have covered them in prior posts:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

Here we turn to how through cross-examination to show that the witness is not to be believed. Evidence rules come into play.

First, 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.

Second, 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; . . .

Wrecking Crew Cross-Examination: Impeaching Biased Witnesses

 

The victims of the Triangle Shirtwaist Factory fire in coffins 

outside the building from which they jumped

This is a list of the impeachment wrecking crew that can be used in cross-examination:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

This like the two prior posts is dedicated to the Unreliability of the Observation Wrecking Crew. Specifically, here the focus is on impeachment by showing that the witness is biased or has an interest. Cross-examination of a witness for showing bias, prejudice, or interest is a party’s right, with constitutional protection in criminal cases. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). However, trial courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986). 

Here is a summary of the facts of the case:

•   March 25, 1911 – The fire at the Triangle Shirtwasist factory was the largest disaster in New York prior to 911

•   146 garment workers either died in the fire or jumped from windows

•   Fire started on 8th floor by match or cigarette or engines of sewing machines 

•   Owners Max Blanck and Isaac Harris went to the roof and escaped

•   Owners were charged with manslaughter based on the claim that they knew the exit doors were locked

•   At trial, Kate Alterman testified on direct that the doors were locked so the women working on the floor could not escape

•   Counsel for the owners Max Steuer cross-examined Alterman and his cross became famous.

Max Steuer

On cross-examination Steuer had Alterman tell and retell her story. The following shows how her testimony on cross was almost the same as that given on direct examination.

Max Steuer argued that Kate Alterman was biased and coached by the District Attorney and memorized her story – repeating phrases such as: “curtain of fire” and a man running like a “wild cat.” The defendants were acquitted. 

Civil suit was brought in 1913, and plaintiffs won compensation in the amount of $75 per deceased victim