Monday, March 11, 2013

Impeachment Basics: Impeachment by Contradiction

Impeachments are used on cross examination when a witness contradicts their affidavit, or when they make up important material not in the affidavit. Attorneys use impeachment to demonstrate that the witness lied under oath, either on the stand or in their affidavits. Impeachments contrast a statement from the affidavit with the witness’s testimony: if the two contradict each other, the witness lied in making one of them and their credibility takes a hit. There are two types of impeachment, each composed of a series of steps. I’ll cover impeachment by contradiction here, provide an example of such an impeachment next week, and begin on impeachment by omission the following week

Impeachment by Contradiction
This is the most straightforward type of impeachment, used to show that the witness has just contradicted something explicitly stated in their affidavit.

  1. Lock the witness into their testimony
The key phrase here is "Is it your testimony today that…" followed by a recitation of the answer the witness is about to be impeached over. This step serves two purposes. First, it clarifies what you're impeaching them over. The judges can then be listening for how their affidavit conflicts with their testimony. Second, this step draws immediate attention from the judges. Impeachment is dramatic: you're accusing the witness of lying on the stand. Beginning an impeachment wakes everyone up.

  1. Establish the existence of the affidavit.
"You gave a statement prior to trial today, didn't you?" This is basic foundation- we need to know what the affidavit is before you can use it for anything.

  1. Establish the credibility of the affidavit
We need a reason to take the affidavit seriously before you start quoting statements from it. There are a variety of questions you can ask to fulfill this step. A very common sequence is "You knew it was important to tell the truth when you made that statement, didn't you?" "You were under oath when you made that statement, weren't you?" You can also throw in "Events were fresher in your memory when you made it, right?" or "You signed your statement, didn't you?"

  1. Eliminate the “I changed my mind” excuse.
“You had every opportunity until trial today to revise and update that statement, didn’t you?” A witness might try to evade impeachment by claiming to have changed their mind or remembered more since they made their statement. This question clarifies that they should have updated their affidavit if that was the case.

  1. Approach opposing counsel with the witness’s affidavit.
Ask the judge, “May I approach opposing counsel?” To preserve your actions for the record, announce “I am now showing opposing counsel the witness’s affidavit. I will be referring to lines [specify the line numbers].” Show opposing counsel the affidavit and direct them, briefly, to the lines you’ll be referring to.

  1. Approach the witness
Ask the judge, “May I approach the witness?” Once again, announce what you’re doing: “I am now handing the witness the same document.” After handing the witness the affidavit, walk back to your default spot. You should have a second copy of the affidavit you can pick up from your counsel table and use for your reference.

  1. Re-establish the affidavit’s credibility
You need to make clear to your audience that the document you just handed the witness is the one that you made credible in step 3. So you ask, “This is that statement we were discussing, isn’t it?” “It’s a true and accurate copy of your statement, isn’t it?” “That’s your signature on the last page, isn’t it?”

  1. Bring out the contradictory testimony.
“Please turn to lines X-Y.” [pause for witness to turn to those lines.] “Please read along silently as I read aloud: [read the contradictory part of the affidavit]. That’s what it says, isn’t it?” (“I read that correctly, didn’t I?” is another way of phrasing the last question.)

  1. Retrieve the affidavit and resume your normal questioning.
Do not re-ask the original question that got you into the impeachment. Simply ask to approach and retrieve the affidavit, do so, and pick up where you left off.

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