Podcast - Cross-Examination: How to Effectively Impeach with a Prior Inconsistent Statement

Lawyers often seek to impeach the credibility of a witness on cross-examination by showing that the witness said something different at an earlier time. Although this may sound like a good tactic, it's too often ineffective or ineffectively done, and it's surprisingly easy for the whole thing to fall apart. If you're going to try to impeach a witness, make sure it's worth doing, and if it is, make sure to do it right. Here are some basic points about impeachment:

1. First and foremost, stop and think whether it's worth doing at all. People say inconsistent things all the time. Lawyers tend to view any conflict as an earth-shattering event, but really, not all of them are important. Don't eat up precious time trying to impeach a witness over something that's meaningless. It will look petty, and you'll lose the jury's attention. Focus on real conflicts.
2. Consider whether it can be done informally. Not every inconsistency requires a full-fledged confrontation with a transcript. Many witnesses will acknowledge right away that they made a mistake, or that they said something different on an earlier occasion. If you can guide the witness to the truth in this way, you can look like the good guy.
3. Have the prior statements at your fingertips. One of the many reasons that you need to prepare a trial notebook is that you need an outline of the anticipated testimony, and that outline needs to be cross-referenced precisely to page and line numbers, so you can find earlier statements when you need them. In the middle of a cross-examination is a really bad time to be leafing through a thick transcript, trying to find the page you want.
4. Make sure you have a prior statement that is both inconsistent and clear. If the statement is not clearly inconsistent, then any attempted impeachment may not work. The witness may fight you, the jury won't get it, or both. The prior statement not only needs to be inconsistent, it also needs to be clear. A cumbersome or sloppy question or purposely vague answer may make impeachment difficult. Read it carefully before deciding whether to use it.
5. Take the time to set it up. If you're going to use a transcript, take the time to do it right. Set the stage. Make sure the jury knows what a deposition is or what an affidavit is. Explain that a deposition is a formal proceeding with a stenographer there to make a record. Point out that the testimony was under oath, just like the courtroom testimony, and establish that a witness had a chance to prepare beforehand with their lawyer. Note that the witness had a chance to read the transcript afterward and make corrections, and so on.
6. Confront the witness directly. Confront the witness with the prior inconsistency directly, but be careful only to point it out without giving the witness any wiggle room. Don't let the witness read it aloud. You read it. Don't give him or her a chance to explain. Just show the inconsistency.
7. Don't argue with the witness about it. Often the best and the most prudent course is to point out the inconsistency and to leave it at that. Many lawyers like to add another question or two. "Is it fair to say that your memory of the event was better three years ago than it is today?" Or "which statement was truthful, the one you gave under oath three years ago, or the one you gave under oath here today?" Or "in fact, the truth is that the traffic light was red, right?" This may work, or it may not. It may lead to squabbling with the witness. The witness may take the opportunity to try to squirm out of the inconsistency. You will have to make your best judgment as to what is most effective. Usually, though, if you've made your point, you probably ought to stop right there.

Nothing makes a jurors' eyes roll quite as much as a poorly executed effort at impeachment. Sometimes it's so tedious that the mere act of picking up the deposition transcript is enough to elicit silent groans from the jury. So pick your spots and do it right.