Impeachment Basics: Impeachment by Omission

We’ve previously covered one type of impeachment, impeachment by contradiction. Now we’ll briefly examine impeachment by omission. This second type of impeachment is designed to show that the witness has failed to include something in their affidavit that they should have included. The attorney sets up a contradiction between the witness’s promise to include everything important and their apparent failure to do so. The steps of an impeachment by omission are listed below; the differences between impeachment by omission and impeachment by contradiction are bolded.

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.

2. 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.

3. 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?" (alternatively, "You were under oath when you made that statement, weren't you?"); "You did tell the truth, right?" "You signed your statement, didn't you?" You can also throw in "Events were fresher in your memory when you made it, right?"

4. 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.

5. Establish the completeness of the affidavit.

“You knew it should include everything relevant to your testimony, didn’t you?” “And you included everything relevant, didn’t you?” Here you’re setting up the promise that they apparently broke.

6. 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 the document in its entirety.” Show opposing counsel the affidavit and direct them, briefly, to the lines you’ll be referring to.

7. 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.

8. 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?”

9. Demonstrate that they left important information out.

“Please indicate where in your statement you said [whatever it was they asserted was true that was not in the affidavit].” If they attempt to wiggle, explaining why it isn’t in the affidavit, follow up calmly and clearly: “So it’s not in there, is it?” Stick to the central point you’re making- that they’re asserting something that isn’t in their affidavit. Don’t get dragged off into other fights with the witness. If the witness reads material that isn’t responsive to your question, redirect them: “I’m asking you about [thing you’re asking about]. Please read in your affidavit where you say that.” If they persist in reading other material, go ahead and proceed to the next step.

10. 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.
 

Next week I'll provide an example impeachment by omission dialogue.

Impeachment Basics: Impeachment by Contradiction Example

Last week, I discussed the steps of an impeachment by contradiction. Below is an example of that impeachment procedure in practice.

Example Impeachment by Contradiction Dialogue
Attorney: “The sky was blue, wasn’t it?”
Witness: “No, it was green.”
Attorney: “Is it your testimony today that the sky was green?”
Witness: “Yes, the sky was green.”
Attorney: “You gave a statement prior to trial today, correct?”
Witness: “Yes.”
Attorney: “You knew it was important to tell the truth in that statement, didn’t you?”
Witness: “I did.”
Attorney: “You were under oath, weren’t you?”
Witness: “Yes, I was.”
Attorney: “You had every opportunity until trial today to revise and update that statement, didn’t you?”
Witness: “I did.”
Attorney: “Your Honor, may I approach opposing counsel?” [judge nods] “I am now showing opposing counsel the witness’s affidavit. I will be referring to line 19.” [approaches and shows opposing counsel] “May I approach the witness?” [judge nods] “I am now handing the witness the same document.” [hands the witness the affidavit and returns to previous position] “This is the statement we were just discussing, isn’t it?”
Witness: “It is.”
Attorney: “It’s a true and accurate copy of your statement, isn’t it?”
Witness: “Yes, it is.”
Attorney: “Your signature is on the last page, isn’t it?”
Witness: “That is my signature on the last page.”
Attorney: “Please turn to line 19 and read along silently as I read aloud: ‘The sky was blue.’ That’s what it says, isn’t it?”
Witness: “Yes, it is.”
Attorney: “May I approach the witness to retrieve the document?” [judge nods and attorney retrieves the document. The attorney then returns to their position in the courtroom and picks up the questioning on the question after the question they impeached over.]

Next week, I’ll cover the steps of the second type of impeachment, impeachment by omission.

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.

2. 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.

3. 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?"

4. 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.

5. 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.

6. 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.

7. 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?”

8. 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.)

9. 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.