Asperu Counsreoox Senres
Nrurrl EorTroN
THOMAS A. MAUET
Director of Trial Advocacy
and Milton O. Riepe Professor of Law
University of A¡izona
Wolters Kluwer
Law & Business
ChrPtcr ó
(lross-Exal.¡rinations
226
ctrcumplaintìff' ancl uncler these
ur il (Ìcíü rvith the
impeachment câtegorY
\vlttìcss
,-,rrs thar if the
it trp lvith cxtrinsic evt-
Statelxen'ts
2. Prior Inconsistellt
Use of Prior incotrsis
bilo
ïque
Commtt
Credit
Confront
Ëirst, lotlfl"it' Conrmit
ut to haPPen'
ExamPles:
-..^- ^^inn ?o miles per
Q:Mr.Jones,yousaythatthedefendant,sChevywasgoing30milespe
îrru:::il3iJ:th< ur' rtgntr9i,"o
said.o,n
",
ing 30 miles Per
(lornrnit
ITltìs
frc."tlin
t
rv
"Y{)Ll
rhe
nc,',irnï, It-n
the inrors
"o9f:
rtlslsl
wås sothat rhe derencrant's chevv
6.7 Impeachrncnt
is conñlsed, mistaken, or doesn't rememberl
227
If
so, your questions) tone of voice,
and body language must project that attitude.
Examples;
a:
Mr. Jones, as you remember it, the Chevy was going 30 miles per
hour?
Q; Mr. Jones, you think the Chevy was goíng 30 miles per hour?
Is your position that the witness is intentionally changing his testimony or
lyingl If so, your questions, tone of voice, and body language must project
that harder attitude.
even
Examples:
o:
o:
Mr. Jones, are you claiming today that the Chevy was going 30 miles
per hour?
Did I hear you right? You want us to believe that the Chevy was going
30 miles per hour?
These different fbrms-''as you remember it," "you think," or "are you
claiming today," and "you want us to believe"-send clear messages about why
the inconsistency happened, and must be accompanied with appropriate body
language and tone of voice: soft and understanding, or doubting and accusatory.
They tell the jury: Stay tuned, things are going to get interesting. Word choices,
tone, and body langu^ge
all important here.
^re the source of the impeaching stâtement.lurors
Second, øed,it. Build up
need
to know where, when, and how the prior inconsistent statement was made. They
need to know that the prior inconsistent statement was made in a serious environment, when the facts were fresh (or at least fresher)in the witness's mind. Create
a picture of the place where the impeaching statement was made
,
Example:
Q: Mr. Winston, you talked to a políce officer after the crash?
A: Ye S.
O: lh at was Officer Smith, the uniformed police officer?
A: Yes.
o:
That was about 30 m nutes after the crash?
A: About that,
Q: You talked to Officer Smith while sitting in her squad car?
A: Yes.
Q: You knew she was investigating the crash?
A: Sure.
Q: You told her that you were a witness?
A:
Yes.
Q: You knew that it was important to tell Officer Smith what you saw?
A: Yes.
Q: As accurately as possible?
A: Yes.
a: And as completely as possible?
Chapteró
Cross-Examinaúons
228
A:
Yes.
Smith was taking notes?
As you were talking' Officer
but I couldn't read it'
Well, rn" *t'ï'iiiÍgih'ingt down'
o:
r:
Example:
taken in this case?
Q: Ms. Joseph, you had your deposition
A: Yes.
questions under oath?
or A deposition
A¡
is when you are asked
Yes'
åt rÁ"at the daY You came to mY office?
A: That's right.
Q: We sat in a small conference room?
ä,
å:
other lawyer' Mr' Phelps'
conference room were you' me' the
and a court rePorter?
the other side asked you
I?Xo.o you questions, and the lawyer for
ftú"
questions?
R: That's right'
o:
. , -^,,+ ,^^.
reporter swore you ln to teil the truth,
Before we started, a court
right?
A:
Yes.
o:
courtroom?
The same oath you took today in this
A: Yes.
o:Andyouknewitwasimportanttotellthetruthaboutwhatyousaw,
-'
right?
t't"urá, and did when the crash happened'
Of course.
A:
Q:youknewthatthecourtreporterwouldwritedowneverythingthat
was said, word for word?
A:
Yes.
the
was over' you had a chance to look at all
asked and the answers you gave?
o: After the deposition
questions you
*"'"
A: Yes.
o:Thosequestionsandanswerswereinabooklet,what'scalledadeposition trariscriPt?
A: Yes.
Q:Youweregivenachancetolookoverthosequestionsandanswersto
make sur.-they were accurate' right?
A:
o:
Yes.
And make any corrections if that was needed?
A: Yes.
I)o you need to do this second C-credit_-cvc
it on
,r.r, *i,h a prior inconsistent statemcntì No' l)o
offictr <tr
stand how a statement is made to a ¡rolicc
Í, jnr<lrs rvill knc¡w wlry tr state
is cr
ntit{ a'l*u"r is rcliatrle ' Ydu call
rcl go inrnrccliately lì'orn contnrit
out d1e p
l;,rid auri,'tg clircct ,xanlinat'iolr irtlct lrring
ìtli* tr¡,"i thc cotrtrtst clc¿ulcr antl m(:re immediatc'
dcp<
thc
229
ó.7 Irnpeachment
Third, cznfrlnt. Bring out the prior inconsistent statemcnt and
ness to admit making it.
ask tlre
wit-
Examples:
Q: Mr. Winston, didn't you tell that police officer that "the defendant's
o:
car was going at least 50 miles per hour"?
(Counsel, page 33, line 10): Mr. Adams, weren't you asked this question, and didn't you give thís answer?: "Ouestion: How fast was the
defendant's car going? Answer: At least 50 miles per hour."
After you have finished with the 3 Cs-commit, credit, and confront-stop.
Let the impeachment linger in the air for a few seconds to give the jurors a chance
to absorb its importance. Don't ask follow-up questions that give the witness an
opportunity to explain or start an argument. Let the redirect examiner bring out
any explanation for the inconsistency.
ll/hen tlere is more than one inconsistency benveen what the witness says
today and what the witness said in an earlier statement, bring out and contrast
those inconsistencies one at a time, to keep things simple and clear.
Example:
Q: You say today that the Chevy was goÍng 30 miles per hour?
A:
Yes.
lBuild up the impeaching statement, then:i
o: You told Officer Jackson that the Chevy was going at least 50, isn't
that right?
A:
Yes.
a:
Today you say that the Chevy had the yellow light at the time the two
cars crashed?
That's right.
Back then you told Offícer Jackson that you weren't sure what color
the lights were at the time the two cars crashed, right?
I guess so.
Today you say that the rain had stopped at the time of the crash?
l:
a;
A:
a:
A: Yes.
o:
told Officer Jackson that it was still raining at the time
the two cars crashed, isn't that right?
A:
Yes.
Back then you
In this example, the witness has been impeached with three separate inconsistencies. Only when you expose them, one inconsistency at a time, will the jurors
recognize them anci understand their significance,
. In many jrrrisclirtions, juclges pclmit l',nvycrs to creâtc a visual aid to make
the c<¡nrast çlear l)cfwcen wlr¿t thc rvitr css salrs ¡o.1ot and what the witness said
earlicr. fu you stflrt the intpctchmctrt, hrwe I fì.>am-cnre postcr board or butcher
PaPer set up on an e;rsel, Às you comnrir rtrrc rvirrrcss to whar he said on direct,
and confront him vvith lris cîrlier stíltcrnent) u'rite thu [<cy ri,orcls on the board.
Make sure that what you writc is accnratc :rnd f;rir. Using a visual aid makes the
hconsistency casy to rioe allcl unclcrstnncl.
Chaptcró
Cross-Examiuadons
230
Example:
o:Mr.Earl,yousaytodaythatthedefendant,scarwasgoing30miles
the
eled "Today" on the left side of
mph" under it'l
t after the crash?
A; Yes.
o:
You
right?
told him you had seen the crash'
day what you had just seen,
ä, Iä you told the police officer that
right?
A: Yes.
.t . 't.r - r-r^--t
o:Didn,tyoutellthepoliceofficerthat,,thedefendant,scarwasgolng
^'
i:',,11,i,uill"'
the board,
the rieht side or
a headins
ü;;;t''t;
Jauele! -3,11^".fSïî3?
least 50" under it'l
"Däf' going at
before
ous to everyone) and keeps it
they
I prior inconsistent statements'
ExamPle:
Q:Ms.Jamison,youtalkedtoapoliceoffìcerafterwitnessingthe
crash?
A:
Yes.
ä
vã, told the officer what you had seen?
ä,
i:i
investigating the crash to
knew it was imporrant to the officer
learn what the eYewitnesses saw?
A: Sure.
o:Andyoutoldtheofficerwhatyouhadjustseenasaccuratelyasyou
could?
ä, iltl.
Chevy had the green tight?
Jamison, today you tell us that the
weren't
police officer.risht afrer the crash that vou
,rr"'what color the light was' right?
A: I don't remember'
ä ;iîi:ïnålo *"
not admit makirrg thc prior
Wlrat happcns if the witness cloes
impor
o' o.*.-Uy-case bãsis: so.re are'":"']:i:::i:
statcmcntl S.r.t, ,t^t.Á.nts are taken
ó.7 Impeachurent
23r
(noncollateral), others are unimportant (collateral). This means that if the witncss
denies or equivocates about making an important prior inconsistent statement,
you must latcr prove up the statement with extrinsic evidence .
Always remember that effective impeachment with a prior inconsisteut statemenr requires a clear technique (the 3 Cs) and an appropriate attitude. If you
don't acr as if the impeachment is important, neither will the jurors. There are
four principal sources of prior inconsistent statements: oral statements; written or
signed statèments; sworn testimony in depositions, hearings, and other proceedings; and impeachment by omission.
a. Oral Statements
Impeachment with a prior oral statement is common. Witnesses frequently
talk to þolice officers, investigators, famil¡ friends, and co-workers about things
they have witnessed. All those statements become potential impeachment material if the witness says something different when testi$ring.
Use the 3 Cs-commit, credit, and confront-when impeaching witll an
oral statement. Make sure you build up the circumstances under which the statement was made. Be specific. Let the jurors know that the statement was important
and seriously made.
Example:
o:
You say today that the Chevy involved in the accident had the yellow
lisht?
A: Yes.
o:
Two days after the collision, on June 3, an investigator came to your
house and asked to talk with you, right?
A:
Yes.
o:
The two of you sat at your kitchen table?
A:
Yes.
He told you he had been assigned to investigate the collision and
wanted to talk to the eyewitnesses?
A: Something like that.
Q: You knew he wanted to know how the collision happened, right?
o:
A:
Sure.
a:
And you told him what you saw and heard that day?
A:
Yes.
Qr You knew that what you told the investigator was important, right?
A:
Sure.
Q: You told him what you saw and heard that day as accurately as possible, didn't you?
A: ltr¡ed to, yes.
a: And the investigator was taking notes as you talked?
A: lt looked like it.
Q: Mr. Rosen, didn't you tell the investigator that the Chevy involved in
the collision ran the red light?
A:
Yes.
Witnesses are more likely to deny or equivocate about making a prior oral
statemclt, sometimes reasoning that it's their word against another person's, For
Cross-Exarninatious
ChaPter6
232,
pn'r
y":i knorv all about the
dratreason,itisimportanttobrirrgOutthedctailssurroulìctingtheoralstate;tr;ïr.*;;;;
*¿
ment. This strow, ,,ä;il.r,
fif..fi to adnrit making it'
srarernenr,
"rr¿,n.îl,rr."^ä;..
Example:
"'
H'.
light at
's that the chevy' had the yellow
ffjf:JJi::i:'::'il'"ål i îÀ"' iigr''r
A: That's right'
o:Let'sturnforamomenttowhereyouwork'YouworkatJones
Electronics?
lunchroom?
A: That's
company's lunct
the .^yyrnânv's
in +l-^
eat :o: ,At lunchtime most of you
didn't
A: Most of the time'
in the company's lunchroom'
at
you
collision,
o: The day after
you?
not sure, but ProbablY' - ! usual co-workers?
n,
were the
o: ln the runchrooïih.a day
A: ProbablY'
right'
til
í'.
o:Andyouweresittingwithyourusualfriendsatthelargeround
table?
A: ProbablY'
o:Thatday,thedayafterthecollision'youtalkedtoyourfriendsabout
-'
the collision, didn't You?
ä,'#,"¿l',J[';,ïålîît"l'Lii,r-'r,1,i*'*','lì.""'¿il1J*:îi^'.'fi
il'rat the Chevy went right
day after the ttfiitä"'
lunchroom, the
through the red light?
A:
I maY have'
nrist¡ke happ c n s .*1tt "
-'ir"l,,
A comrue¡n itnperrcl:uren.t
''
couttri ni trg
lyc
tf
*ri tter: r:eiPort
'*
thlt
rcport totllilns a ¡rr:tlrio¡r
e
thc
"r;;í;;;"rrot
he useti to imP*rch
t
thc rviuress's'
¡tficeros stllrement) not
lt
i
tcment'
tr, W'ittcn Statclrtet:ts
Impcacbment
v
incîurlC sîarenrenrsl
can
These
statement-*^'^]'o cofflmoll' staterntrlrs
as
o'
'
:lÏ*ii:ï;t'"tf
w'c¡r itr
'.rr,ìn"r.,,'-
that are rvrifteu-tlr t
Use the 3 C:sth
.." J-r*"rctrr' M'¡kc ¡iutrc.yotrI-ctLr11lel,r'rn
tlrc.Jttr.rr
rnû<le' Bc spccifìc'
;;*;"t
srâterÌl
*rtî t.ti",tsly n-r''trìc' Witl¡ rvtittctl$lrorv ir to oppositt¡1
an exhibiL.
;ä;;;;;,_,i,.k",ll.o
cr:utt
l'u
ó.7 Impeachmcnt
233
witness, before using it to irnpeach. Although this procedure is only partially
re quired by FRE ó I 3 , most judges reqnirc it, and ic is the more effèctive impe achment technique.
Exa m pl
e (W ritte n Statement);
o: You say today that the
A: Yes.
Chevy was going 30 miles per hour?
o: You're sure about that?
A: Pretty sure.
Q; Ms. Blumenthal, you made a written statement about the car crash
you witnessed, right?
A: Yes.
Q: You did that two days after the crash?
A: l'm not sure of the exact date, but that sounds about right.
o: You did that because an accident investigator came to your house and
asked you to make a written statement about what you saw, right?
A: Yes.
o: Please mark this document "Plaintiff's
Exhiblt No. 20." [Hands exhibit
l'm now showing it to opposing counsel. [Hands exhibit to lawyer, who examines it and hands it
back.J l'rn now showing Plaintiff's Exhibit No, 20 to the witness. [Hands
exhibit to witness.l That's the statement you made on June 3,2010?
to court clerk, who marks it
as an exhibit.]
A: Yes, it is.
Q: lt's in your handwriting?
A: Yes.
Q; That's the statement you made, in your handwriting, describing what
you saw when the cars crashed on June 3?
A: Yes.
Q: Ms. Blumenthal, follow along while I read from your statement, beginning here [pointing]. Make sure I read it right. your statement says,
"l saw the two cars crash. The chevy was going at least 50 miles per
hour." Did I read it right, word for word?
A:
tlrc
rhin
Yes.
ofthe
not,
thc im
et:y^
ad rhe
you
cirn read it rvirh dre vr¡hunc, iullection, ÌìF.el bocty langlÌâgc rhat highlighr-thc
rvit¡-rcss rcirds ir. Nate also wirerc yon
ttcd to position yourself anyw.here iu
next ro rhc rvitncss, wlierc you will not
r will then be next to thc rviürcss, facíng
tl'rc jtlr¡ arlcl rvitrl Lrc irble to rcircl thc inrpcachingparr, and .still hrrvc the iitrr*r,
fL'llow trlong.
ll'hc statemenf, hecausc it is s<lrncr.hing usccl cluri¡rgthc trial, is kept by the
cottrr clerk antl trecorlres part of the trial rccorcl. The statcrnent, howerrei,
hns
t]()t bcefl aclnrittcd as arr c.rhilriL a¡ld does nc¡r go ro the jvry
whcn it clclibe¡arcs
(unle.ss the stittcrnetrr'
lìas rcceiver-l ir l'i¡r nclltiã¡r rlr,rt pérnìir it to be ftrrrnally
iiclrnitrccl irr cvidcncc).
Chapteró
Cross-Exatninaüons
234
ent) :
ExamPle (Sí gned Statem
a red
other car' the Chevy' ran
the
that
today
claim
Q.: Mr. Wolf, you
light?
A:
Yes'
Q: You saw that?
comA: Yes'
a letter to your insurance
wrote
you
crash,
the
Q: One week after
þanv' right?
n, iã"i't iem"mb"r the date' a let:er?
o: But You sent Your comPany
A:
ä
Yes.
time of the
. ã ,r^,
company that at the
,r insurance
insurañcê co
your
write
you
oi¿n't
color of the lishts?
you d¡dn't
'uuttf
iät;
crash
ih"
Exhibit No' I
ä, 'rilïJ iiiff*.LxhibÌt.Derendlltls
sl
it as an exhibit'l l'm now
court clerk, *f'tã tuttt
<hibit to lawveç wh
to opposinn ':"';;:jÏH;;t " u.foï't'''óàíJt¿ant's Exhibit No' 10'
hands ¡t back'l wt'' wåF' 3kq
[Handsexhibittow¡io",å-it,ttuatã.,äþtt"ryousenttoyourinsurance
company?
A:
Yes.
o:
June 8' 2010?
Look at the top' lt's dated
A:
Yes.
at the bottom?
That's your signature
bottom'
the
at
Look
o:
your letA: Yes.
letter [pointing]' Doesn't
of
paragraph
the third
,the
the color of the
o: Look at,,At
crash, l-iil;;i iåulrv no-titt
the.î#';fih;
ter say
lights"?
A:
Yes'
o:
crash?
writing one week after the
That's what you said in
Example (Statemen
t
Sígned by Witness):
o:Ms'Hart,yousaythatyouha.dsevera|thousanddollarsmissingfrom
- ;i; rtor." átt"t the burglarY' riglrt?
A: Ye
rterviewed by a police detective?
lr
a: After the burglary' You were
6,7 Impeachmcnt
235
That's r¡ght.
Q: That was in the police station?
A:
A:
Yes,
a:
The same day as the burglary?
A: Yes, right after we discovered the burglary.
or The detective asked you questions and you
A: Yes.
answered them?
Q: ln fact, the detective typed your answers in a statement fórm, right?
A: Yes.
o:
He showed the statement to you?
A:
Yes.
a: And he asked you to sign it if the statement
accurately contaíned
what you had told hím, right?
A:
Yes.
Q: After reading it over, you signed the statement?
A:
Yes.
o:
Ms. Hart, didn't you tell the detective that you couldn't find anything
missing from your store after the burglary?
A: l'm not sure.
Q: Please mark this Defendant's Exhibit No. 10. IHands exhibit to court
clerk, who marks it as an exhibit.l l'm showing the exhibit to plaintiff's
counsel. IHands exhíbit to lawyer, who examines it and hands it back.J
l'm now showing Defendant's Exhibit No. 10 to Ms. Hart. please take
a look at it. IHands exhibit to witness.] ls that the statement you made
at the police station the day you discovered the burglary?
A:
Yes, it is.
A:
Yes.
A:
Yes.
o: lt has the date of June 1,2010,
at the top [pointing]?
o: lt has the títle "statement of Helen Hart" at the top?
a: At the bottom
A:
there's a signature. That's your signature, right?
Yes.
Q: Take a look at the míddle of the page [pointing]. Make sure I read it
accurately, word for word. "After I discovered the burglary I looked
around the store but I couldn't see anything that was misslng." Díd I
read that right?
A:
Yes.
a:
Word for word?
A:
Yes.
Finally, cl{ur't orrerlook plcilcling.s a¡rcl <liscclvery resporlôcs ns potentizrl so¡rces
^irnpe
aclring rvrittcn slat.cn-¡e nrs. For exam¡rle, il't ct:inltlaint oianswer hm treen
<rf
I
response
signed Lry a p*rry (usually rrrllccl a
jur:iscficdons), or a discovcry
Ád r,,
irnpcach, The rn<¡st c()tllm.rln sittl:rt
tory ansrvtrq lreca.rsc I]ccl. l{. Ci\,.
,ti--ä
"ilr writittg turr-lcr q1th" rrtcl "sigçr-rccl l>v thc pcrsorl rntrking thr:nr.1' "l'lic iur¡rcachlìlcnt proccclurc is lìkc inrpcrchnreni u.ring a signerl stillc¡nc11t.
ll 33(l
Chtpter
ó
Cross-F'xartrinations
236
Example:
not present
o: Ms. Cafter, you say today that you were
at the board
meeting on June 1,2009?
tories," right?
That's right.
ö;ih" lást page, it has a date and signature' right?
A: That's right'
o: The date is MaY 1,2010?
A:
Q:
A: Yes.
o; That's in Your handwriting?
A: Yes.
o.:
äã
tignuture here, that's your signature?
A: Yes.
on May 1 ' 2010?
o: Vãî sign"d these interrogatory answers
A: Yes.
O,l
"l hereby swe-ar.tfral mV answers to
Just above your signature, it says
correct"' right?
the above interrog-atories are true and
R:
Yes.
your answers were
o: you then swore before a notary public that
true
and correct?
A: Yes.
seal?
or And over here, that's the notary's affidavit and
A: Yes.
'
olMs.Carter,let,stakealookatinterrogatoryNo.l2andyouranswer
Juno as present at the board
"state
i"t";;;;i";y-says:
The
to it.
1, 2 ).' D¡d I read that right?
meeting of nj"*õorfroratián on June
A: Yes.
Ms' Henderson'
o: Your sworn answer says: "Mr' Franklin' Mr' Williams'
o¡á t r""d your answer right, word
Mr. Adams, and lwere all present.,,
for word?
A:
Yes.
c. Sworn TrauscríPts
*¡ld a
Mlheuever a wit,resi testifies under oatll'
be
is pr.f"r.d by a court repot'tcr,, the trâ¡rscript at
;;;;'.h^ent'if thc rvitneis testifiss ciifÍbrcntly
of depositions, prelitlinary hearings' gran
"å;;;þ"
hcaring or trial rcstimony'
c<lntlo
Once agaiu, use thc i Cs-tuntmit' crcdit'
up thc
marlc.
ttre wit
anscriP
ó.7 Impeachment
237
any mistakes, and sign. Create â picture of the witness testi$ring at the deposition
or hearing. As with any written stâtement, show or refer opposing.o.rn*êl to rhe
transcript page and line, and show it to the witness, beforc using it to impeach.
Example (Depositíon):
Q: Mr. Hoffman, you say today that the chevy was going 30 mires per
hour?
A: That's right.
Q: You're sure about that speed?
A: Yes.
Q: Mr. Hoffman, wasn't that chevy actually going more than 50 miles per
hour?
A: No, l'd say more like 30.
or Let's turn back to December 1,2010. you testified that
day at what,s,
called a deposition, right?
A; I don't remember the exact date, but I did have my
a:
deposition
taken.
That's when you came to my office?
A: Yes.
Q: We sat in a small conference room?
A: Yes.
o:
*
a:
You were there, I was there, the other lawyer was there, and a court
reporter was there?
Yes.
The court reporter swore you in to tell the truth?
A: Yes.
a:
The same oath you took today?
A: Yes.
o:
Then I asked you questions about the collision?
A: Yes.
o:
And the other lawyer asked you questíons?
A:
Yes.
Q: You knew it was important to answer as accurately and truthfully
possible, didn't you?
as
A: Yes.
a:
And you did that-answered accurately and truthfully?
A: Yes.
Q: After the deposition, you received a booklet containing all the questions and answers?
A: Yes.
Q: You had a chance to review your answers
to
make sure they were
accurate?
A:
Yes.
Q: ln fact, there was a correction sheet where you could make any correct¡ons you felt needed to be made, right?
A: Yes.
Q: There was a signature page for you to sign, if the deposition transcript
was accurate, right?
A:
Yes.
ChâPte[ó
Cross-Exanlitladons
238
you?
signature page' didn't
And you signed that
o:
A:
Yes.
e f¡om your dePositio¡
¡'
Ptaintiffb Exhibit No'
the
ion transc¡'iPt before
exhibit' lt saYs "DePost'
1,2010"' right?
A:
Yes'
o: Now look at the last Pagg'
tions asked
right?
."ä;;;;"r,
lt'savs
!iu"n
"l herebY'c^:lilr:^.i.t1å'1"äl;
in this transcript are
Henry HoffThat's your signature'
signature'
a
there's
that,
Right after
man, rìght?
A: Yes.
o:
word?
A:
Yes.
Ïi:î
, dlat
ttltm not
retnember"'
his
I the qr-rcstions and
1l'
He aring):
ExamPl e (P relimínarY
a gun in his
saw the defendant with
you
that
say
you
o: Mr. Williams'
hand?
A: Yes.
Q:
ril.',
what You're saYìng todaY?
A: Yes,
Q:
said when
But that's not what You
You
testified at the PreliminarY
hearing, is it?
on SepA: l'm not sure.
hearing' That was held
preliminary
that
about
talk
O.l Well, let's
tember 1,2010?
A: Around then'
ã, Rõhi here in this courthouse?
A:
ã'
Yes'
hearing?
Yã, were a witness at that
A: Yes'
o:
¡:
under oath?
You testi{ied at that hearing
Yes.
ã, ¡rr,
todaY?
like You're under oath
ó,7 Impcachment
,239
A: Yes.
o:
You were in a courtroom?
A: Yes.
Q: Just like this courtroom?
A: Yes.
o:
You testified from the witness stand?
A:
Yes.
Q: Just like you're testifying today?
A: Yes,
o: At that hearing,
you testified about what you saw, heard, and did as
you witnessed the robbery, right?
A:
Sure.
Q¡ You told the truth at that hearing, didn't you?
A: Of course.
Q: Mr. Williams, l'm going to show you Defendant's Exhibit No. 10, a
transcript of your testimony at that hearing. Counsel, it's page 12,
beginning on line 15. lShows transcript to witness, and stands next to
him.l Follow along to make sure I read it right. Weren't you asked this
question and didn't you give this answer: "Ouestion: Did you see the
defendant with any weapon? Answer: I don't know. lt was too dark to
see," That's what the transcrípt of your testimony says, right?
A:
Yes.
Make sure the other lawyer has a copy of the uanscript you are using to
impeach. If not, make sure you show her. Better yet, give her a copy of the
uanscript.
Note that in each of these examples of impeachment using a transcript of ttre
witness's sworn testimony, the lawyer had the transcript marked as an exhibit,
showed it to opposing counsel, then showed it to the witness and stood next to
the witness while reading the impeaching part. As noted earlier, FRE 613 does
not require showing the witness a "prior statement)' before cross-examining the
witness with the statement; it requires only that you show the statement to opposing counsel on request. Flowever, showing the transcript to the witness is dre
more effective technique (it avoids responses like "I don't know; can I see that
transcriptl") and is perceived by the jurors âs the fair thing to do.
d. Impeachment by Onrission
Impeachment by omission is an important impeachment technique, but it
must be used only in appropriate situâtions. Whenever a witness has made a report
or record of an event, and the witness failed to put in that report or record the fact
that he is now testif,iing about, the witness can be impeached by that omission.
However, such impeachment is effective only when it is used to expose important omissions, under circumstances in which the exposurc is fair. The omission
nrust bc inrpr:r'raut, so that tlrc jur:or:s believe thc omission czrnDot be cxplaincd
by inaclvertencc or rnisukc. Alwrys ask: If this fhct actually existud, lvould the
rvitncss havc rccor ded itín this rcpcur: or recordl 'I'he onlissÍån nrust áko trc fairly
exposed. Always ask: Did the witness have control over the making of the report
or record, so that the failure to put this fact in the report or record can fairly be
attributcd to rhc witnessf
Chapter
6
Clross-Exantitratrons
240
Example (P olice RePort):
th.e scene of
that right after you got to
to|ay
claim
you
Smith,
;i;-'"rrv' it was mv rault"?
o: officer
the crash,
¡: That's what he said'
o: You sure about that?
-il:ñi ;;;i;iJtá':
ä, '#,::::imith,
the police academv?
vou went throush
ä i"^:t trained you how to prepare police
reports?
A: Yes.
o:Theytoldyoutoputtheimportant{actsinthereport'didn'tthey?
ä' Iii;
important ones?
every single fact' but allthe
A: Yes.
o:Andthat,swhatyoudowhenyouwriteyourrePorts-putinallthe
imPortant facts?
A: ltryto' - ' '
Officer Smith,
o,
l:
ã
L^'¡a
ê\/êr arrested someone for a crime?
have rrnrt
You ever arre
Yes.
nn¿ theY've confessed?
A: Yes.
o: when someone
you,ve just arrested says,
isn't it?
A: Of course'
it"
o: You Put his statement- "l did
ä,
I:i'""
-in
"l did it," that's important'
your rePort, don't You?
car crashes' right?
also been to the scenes of
will tell you
ä, ni sometimes one of the drivers
his fault, right?
A: That sometimes hoP
or When someone iust
was gçriously hurt sat
A: lt can be, but it dePi goes the report?
in
o¡ And if it's impo'iunt' it
that the accident was
which another person
portant' isn't it?
f the case'
ä, åil;::T SiLil';' '" h owi ns,vo' î " 1n:I:
:1':i'"Ìï
Jî: you
åiî:ff
have a:
Counsel'
witness.l
to
.ñ¿'r
fff
already ¡""n'."ro"J.
".iiU¡l to'n'"t noJt'l That'i a copy of
s
t
rightl
copy of tr'ìi,
"*f'¡l''t'
rePort?
Your accident
ä, T[:l; iinil"o"*
top;;;g
you prepared of the racts
o{
his car crash?
A: Yes'
".L^-^ "^rtr rôrìôrf contains Mr' Williams's
o:OfficerSmith,showmewhereyourreportcon
words, "lt's mY fault'"
A: lt's not there'
the nonexistetrt
by asking the witness to circle
can heightcn the onrission
.,*ttion everl
;"Ë;ä'"
Thar ir..."r.î-ü*î*iur,, ^"d
words with a feit-tip pen.
y.u
more promlnent
ó,7 Impcachmetrt
241
Example:
o: officer
Smith, I'm handing you a red felt-tip pen. Look at the front
page of your accident report. Please circle Mr. Williams,s words-,,lt,s
my fault"-as they appear on that page.
A: I can't do that.
o: Why not?
A: lt's not in my report.
Q: well, let's look at page two of your report, the narrative portion.
Please circle Mr. Williams's words-"lt's my fault,,-as they appear
on page two.
A: I can't do that.
Q: ls there a problem?
A: ltt not in my report.
Example (Business Report):
Q: Ms. Dowd, your job
as
the secretary for the board is to record what
happens during board meetings?
A: That's right.
o: You record the board members who attended the meeting?
A: Of course.
o; You take notes during the meeting?
A:
Yes.
o:
Those notes include the topics under discussion?
A: Yes.
a¡ The positions the board members in attendance take on those
topics?
A: Yes, if they speak and take positions.
a:
Whether the board approved or disapproved some matter?
A: Yes.
a:
And the way the board members in attendance voted?
A: Yes, and if they abstained from voting.
a:
The reason you take notes is so that you can write an accurate account
of what happened at the meeting?
A:
Yes.
o:
The account of the meeting, those are called the minutes?
A: Yes, the minutes of the board meeting.
Q: Ms. Dowd, you say today that the board during its meeting on June
1,2010, approved the contract with Jones Chemical Company?
A: Yes.
or Approving that contract was a big deal, wasn,t it?
A: lt was an important contract, yes.
Q: l'd like this document marked as an exhibit. IHands exhibit to court
clerl, who marks it as an exhibit,l l'm showing what has just been
Â;
marked as Defendant's Exhibit No, 12 to plaintifF's counsel. [Hands exhibit to lavvyer, who hands it back.l l'm now showing it to the witness.
[Hands exhibit to witness.] That's the minutes of the board meeting of
your company held on June 1,2010, right?
Yes,
ChaPtcró
Cross-Examinltions
242
o:lnfact,that'syoursignatureassecretaryoftheboardatthebottom
it?
of the last Page' isn't
Ar Yes.
(lhemical Company'
o:Ms.Dowd,showuswheretheminutesoftheboardmeetingsaythat
contract w¡th Jones
the
the board "pp'äu"a
lîî:î[îå;ï:il:
ä,ili:ï',î:^i"i::1";T:li"^::::':iliå:ffffi
- llr¡r"
discussed the ProPo:
board
right?
A:
Yes.
A¡
Yes'
lt says
o, lt saYt "discussed"?
o:
it?
"proposed contract"' doesn't
ä, Iit"'n't
A: No'
does it?
say "approved contract"'
statcment
nt with a prior inconsistctlt
twlce'
ct imPeaches the witness
ExamPle:
was green
that the light for Main Street
t:dix
say
you
Qr Ms' Jackson'
I
when the two cars crasheo
ä,
Ï3,;:,i:Ïio
oo,."r
rieht?
Jones risht after the crash,
A: Yes'
o:YoutoldofficerJones-thatthelightforMainStreetWaSredatthe
-'
time of the crash' right?
ä, Iîi'rT3'n"u",.
lisht for Main street
totd officer Jones that the
green, did You?
A: No, I didn't'
rash
'
was
ó,7 Impcachment
243
Prior inconsistent statements are taken on a case-by-case basis, If the witness
denies or equivocates about rnaking the statement, it nìust be proved up lvith
extrinsic evidence if the statement is irnportant (noncollatcral).
3. Contradictory
a
Facts
Whenever a witness says one rlring lt tfiil, the wìtncss ca1n be askeel to adnrí¡
contradictory fact. For example., if the lvimcsç srys he nas 20 tbct fì.orrr the col,
c thiur 10ü fèet :rway, Iurpeacìrmcnt
c<¡rrtratlicrjon, is wetl rccognizcd by
c govcrning it.
ment with conrradictory åcts" TJrc cre¡ss
fàct unless she has a good-faith basis to
Model Rule 3.3 prohibits a lawyer fro
Model Rule 3.4 prohibits a lawyer lr
not reasonably believe will be support
the witness cannot be asked to adrnit th
unless the cross-examiner has a goodcrôss-examiner must have a factuãl basis for this belief, such as information from
another eyewitness that this witness rvâs more than I00 feet away. If the crossexaminer has no good-faith belief, she cannot ask the question zuggesting this
fact. Cross-examination is not an opportunity to throw unsubstantiãõa aiñ rt
witness.
"
If you have a good-faith basis for asking the wirness to admit the contradictory fact, simply ask the question with thc appropriate âccompanyrng atrirude . If
the witncss
fact, nothing
ness denics
prove up rh¿
cxtrinsic cvi
onccillateral).
on a cæc-by-case basis, Xike prìor irtcc¡r"¡sistent statements; some are important,
ofhers åre not.
Common sources of contradictory facts are facts that attack the witness's
crcdibility, such as liquor or drug use that affected the witness's perception of the
event.
Example:
Q: Mr. ouigley, you say that you had been home
alr afternoon and had
just gone outside when the crash happened?
A: That's right.
o: Weren't you in fact at O'Brien's Tavern that afternoon?
A:
No.
A:
happened?
No.
a: Didn't you have several beers that afternoon before the
crash
s ¿br¡ut the confl.ildictor.y fàct, it nrust
Ilatcral), In a sirurtion ,like tlre prececicur, which u,irs r.r()t adr.rrittccl, if
If this lvifncss is an inrpr)rî{ult
in a bar c{rinking scvcr.al bccrs