Impeaching a Witness – A Perry Mason Moment

When a witness is impeached, you are calling into question his/her credibility. One way

to impeach a witness is to discover prior inconsistent statements. For example – at the trial the

witness says that the oncoming car was blue. Yet, in a deposition, the witness said he/she didn’t

know what color the car was. These statements were both made under oath; therefore, the classic

question is: when were you telling the truth – when you said the car was blue or when you said

you didn’t know? Which is the truth? Which is the lie?

The first step in impeaching a witness is to establish what the witness is currently saying.

Once that is done, the next step is to tie the witness to the current version of the truth. Doing this

helps in this fashion – if the witness is inaccurate about what color car it was, then it is likely that

the witness is inaccurate about a number of things. Therefore, we want the witness tied to the

current version of the truth before we expose them to a different version.

After tying the witness to the current version of the truth, you need to expose the witness

to the inconsistent statement. You’ve already tied them to the latest version of the truth, so

exposing the witness to the inconsistent statement can be quite dramatic. A foundation needs to

be laid for the inconsistent statement. By this I mean you need to orient the witness to the

inconsistent statement. You need to tell the witness who was involved in the earlier statement

and you need to tell the witness when and where it occurred and what was said. It might even be

wise to show the witness the inconsistent statement. This is all part of being fair.

Time then needs to be taken to maximize the damage of the inconsistent statement.

You’ve gone this far so make the most of it. Everyone wants to know why there are

inconsistencies but you may want to spend time showing that the prior fact is correct because if

the prior fact is correct than the current theory of the case – espoused by the witness- may be

inaccurate.

Opportunities for impeachment present themselves at trial – all the time. But you have to

listen to what is being said. If you don’t listen, you won’t hear the inconsistency. Excessive

note-taking during testimony can cause a person to miss an inconsistent fact.

If a witness is truly impeached, they can appear disgraced and/or discredited.

Judges/juries are always on the lookout for witness who lie, exaggerate or stretch the truth.

Impeachment exposes these people. When it is done effectively – and it can be difficult to do – it

is truly a Perry Mason moment.

 

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