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Impeachment and its Limitations

Whenever a witness takes the witness stand in trial that witness's credibility becomes an issue in the case. For this reason you as counsel have the ability to impeach a witness in an effort to challenge the witness's credibility. Generally speaking, when you conduct an impeachment, the purpose of the impeachment is to demonstrate to the jurors the lack of credibility which should attributed to such witness's testomny. That being said, there are times when a prior inconsistent statement will be allowed into evidence not solely for the purpose of discrediting the witness but for the additional and often more important purpose of demonstrating substantive evidence of the case. If the prior inconsistent statement was made under oath in a formal proceeding and that same individual is on the stand in trial then the inconsistent statement can come in as evidence to support a substantive issue in the case. Thus the jurors can use the inconsistent statement as proof of fact itself as opposed to merely allowing the evidence to be used for purposes of weighing credibility. If the prior inconsistent statement was not made under oath then the inconsistent statement will only be allowed for the purpose of reflecting on the witness's veracity. That being said, we should not give the limiting instructions more credit than these instructions deserve. For example, if the judge gives a limiting instruction for the jurors stating that they should not consider the impeachment evidence for anything more than assessing witness credibility, it is still highly unlikely that the jurors will really be able to restrict their mental processing to this one consideration. In my opinion, it is naïve to think that limiting instructions serve the purpose for which they are intended. If anything, limiting instructions simply draw greater attention to the evidence objecting counsel wishes to avoid.

If you are conducting an impeachment by prior inconsistent statement you should remember that your most important goal in doing such is to get your jurors to believe that the witness's first statement is the true and correct statement and that the second statement is the false statement. Thus, your goal really isn't just to show a lack of credibility, though this may be a goal it is not the primary goal. Your primary goal is to show the trier of fact that the first statement is the statement should be believed and that the statement made by the witness on the stand today is not an accurate statement. To do this, it is wise to build up the credibility of the first statement. There are a couple ways to do this. For one thing you should focus on the fact that the initial statement occurred closer in time to the original event spoken about than the statement made in trial. Memories falter as time passes. The first time the statement was made will always be closer in time to the event spoken about than the statement made at the time of trial will be to the date of the incident. As a result we can assume that the speaker's memory would have been sharper at the time of the first statement than the speaker's memory would be at a later date in trial. If the first statement was made under oath, such as in a deposition or preliminary hearing, then be sure to illicit testimony from the witness that his or her first statement was under oath, that he or she knew the significance of speaking accurately at the time of the statement and as a result the statement is reliable. You are eliciting facts which add to the credibility of the first statement.

There will be times when you will be so fortunate as to have written testimony which you can impeach the witness with. For instance, you may have an email or a text message written by the witness. The contents of that document may be inconsistent with the statements the witness makes on the stand at trial. After the witness makes the inconsistent statement on the stand you can call his or her attention to the prior written inconsistent statement, which is the conflicting document. You can then have the witness read the contents of the letter or you can otherwise read the statement in the letter yourself to show the trier of fact the inconsistency between the contents of the letter and the statement of the witness in trial. Know that if this witness is not a party to the case then the written statement can only be used as impeachment evidence and not as substantive evidence and thus it will not likely be received by the court as formal evidence. That is fine though as you still have impeached your witness and your impeachment will nevertheless be on the record.

I personally find the immediate impeachment by way of prior inconsistent statement, such as a deposition transcript or other writing, to be the most effective. The reason for this is that the impeachment occurs immediately following the inconsistent statement. Thus the impeachment doesn't get lost on the jurors as they forget about the statement made earlier by the witness as new testimony continues to come into trial prior to the later impeachment. That being said, you can also impeach a witness by way of extrinsic evidence. An example of this would be an impeachment by wan of another witness for example. After the witness you wish to impeach leaves the stand you can call another witness to aid you in the impeachment. This second witness might testify as to an inconsistent statement he heard from the witness you are impeaching on a prior occasion. In this same way you could also use the second witness to impeach the first witness by reading from a prior written inconsistent statement made by the impeachable witness. The downfall of this strategy is that the impeachment doesn't occur immediately after the impeachable testimony is put on the record. Thus the impeachment may easily be lost upon the jurors. If the writing was a product of a party to the case then it can be accepted as evidence for the jurors to inspect.

Another good impeachment mechanism comes by way of impeachment through omission. These impeachments are particularly available when you are cross examining experts or other officials who document their procedures. Once a doctor, nurse, police officer, or other official creates a report it becomes pretty easy to lock the individual into the statements in the report. To do this you first need to build up the integrity of the report. Question the official on the importance of creating a thorough report. Ask the official about all his or her training in preparing such reports. Once the report is thoroughly built up and the official vouches for the reports thoroughness you can then point out that anything not in the report must by implication not have occurred. Thus, if the official testifies to facts not in the report, while on the stand, you can impeach the witness by pointing out that the facts he or she just testified to are not in the report. The same report that the official just said was thorough in its description. Once you have done all this you can decide whether you want to present this discrepancy in a light demonstrative of the witness being a liar or simply being confused. If you are dealing with an official who is not a party to the case then you should probably stick to presenting the inconsistency as a product of confusion or error on the part of the officer or official. By doing this you don't create resentment in the jurors as they may not like to see you antagonizing a respected member of society such as a police officer. Moreover, a witness will much more likely accept the fact that they are or were confused rather than accept that they are intentionally deceiving the court. To present the inconsistency in this light simply have the officer or official testify to the fact that they conduct hundreds of reports in their course of work. That they see these types of events so often that they could easily confuse the events of one report with those of another.

That being said, the situation may be different if you are impeaching a party to the case by omission. If the witness is a party you will likely be pointing out an omission in a deposition transcript or voluntary police report. In this context it is no longer as important for you to present the statement today as being an error. Since you are trying to discredit the witness you can let it be assumed that the omission was an intentional act of the party in an effort to deceive the court.

The above article reflects some evidentiary rules as promulgated by the Federal Rules of Evidence. Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent book on this subject matter and the source of the majority of my own information, as outlined above, on this topic.

Categories: Evidence