The Art of Cross Examination (Part 2): Impeachment By Prior Inconsistent Statement
Author’s Note: Please watch the attached clip from Witness For The Prosecution (1957), starring the incomparable Charles Laughton, Marlene Dietrich, and Tyrone Power. Billy Wilder directed the film and wrote the screenplay from a novel by Agatha Christie.
Now back to the real world.
Here is an example of how to effectively impeach a witness with a prior inconsistent statement. This is one of the most effective ways to cross examine a witness. More than once, I have demolished an opponent’s case using this method. It is relative easy to do after you have assembled all of a witnesses’s prior statements, sorted them by topic, and prepared your cross examination. As usual, there is no substitute for hard work and preparation. The end product in court is extremely dramatic, deeply humiliating and disorienting to the dishonest witness, frightening to opposing counsel, and immensely satisfying to the lawyer who pulls it off.
Author’s Note: I never got a witness to say, “Damn you. Damn you,” but I did get a witness to say, “As God is my witness, I am telling the truth,” which is almost as good. She was not as beautiful, elegant, and aristocratic as Marlene Dietrich, but hey, nobody is.
Here, I illustrate the method by using the first question of a lengthy proposed cross examination of Deputy Eddie McGuire of the McCracken County Sheriff’s Department. He arrested Crane-Station and I have previously mentioned him in several posts relative to her case.
I prepared the cross examination for Chris McNeill, the lawyer who represented Crane-Station and I delivered it to him in person the week before the trial. I respectfully asked him to please consider using it.
I said, “I respect you. I am not trying to tell you how to do your job. I love my wife and I am just trying to help out any way that I can. This is one area where I can help because I have a lot of experience in these matters. Please review it and consider using it, or some of it, as you deem appropriate.”
He never used any of it.
He later told me that the deputy was a nice young man and the jury would have been offended, if he used my proposed cross examination. I will leave it for you to decide whether that makes any sense.
Each proposed question is followed by the correct answer with a reference below the answer to the document or transcript in which the deputy made the original statement.
If the deputy gave the wrong answer to any question, the proper way to impeach him would have been to direct his attention to the source document or transcript and confront him with his prior inconsistent statement.
In tomorrow’s post, I will present the entire cross examination that did not happen. It is an engaging and easy-to-follow-story that I believe you will enjoy.
In today’s post, I will present the first question, answer, and reference to the source in order to illustrate how to effectively cross examine a witness by impeaching the witness with a prior inconsistent statement. The procedure is formulaic and would be repeated whenever the deputy gave an answer that was inconsistent with an earlier statement.
Okay, students. With that introduction, let us begin.
Q: Deputy McGuire, whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?
The proper answer is “yes” because that is the answer that he gave under oath at the suppression hearing. Now, let us suppose that he answered, “No.” This is how you impeach him with his prior inconsistent statement.
May I approach the witness, your Honor?
You now approach the witness and hand him a copy of the transcript of the suppression hearing that you will use to impeach him and you also hand two copies to the clerk. One is for the court file and the other is a courtesy copy for the judge. On your way back to the podium, you hand the prosecutor a courtesy copy. Resuming your position at the podium, you proceed as follows:
Q: Deputy McGuire, please take a moment to review the document that I just handed to you and let me know when you are ready to answer some questions about it.
A: Okay, I’m ready.
Q: What is the document you are holding, which Madame Clerk has marked as Defendant’s Exhibit 1?
A: It looks like a transcript of the suppression hearing in this case.
Q: Did you testify at that hearing?
A: Yes, I did.
Q: Did you swear to tell the truth, the whole truth, and nothing but the truth, before you testified?
Q: Did you tell the truth?
A: Of course I did.
Q: Does that document appear to be a true and correct copy of your testimony at the suppression hearing?
A: Appears to be.
Q: Please answer the question “Yes” or “No.” Take all the time you need.
A: Yes, it’s correct.
Q: Thank you. Your Honor, I move Defendant’s Exhibit 1 into evidence for illustrative purposes.
This is the proper way to identify and authenticate an exhibit prior to moving it into evidence. Judges and lawyers call it “laying the foundation.”
Notice how the lawyer firmly, but respectfully refuses to accept the equivocal answer. This is how a lawyer asserts control over a waffling witness.
Exhibits admitted into evidence for illustrative purposes become a part of the official record of the case. They can be used by counsel to illustrate a point, but they do not go into the jury room with the rest of the exhibits during deliberations.
Should a question come up during deliberations, the foreperson can send out a note asking to see a particular exhibit that was admitted for illustrative purposes. If the judge grants the request after conferring with counsel, court will reconvene with counsel and the defendant present. The jury returns to the box and the Clerk shows the exhibit to the jury. The jury then returns to the jury room to continue deliberations and the judge declares a recess pending further notice from the jury that it has another question, or it has reached a verdict.
No talking is permitted while the jury views the exhibit. If the jurors have any questions about the exhibit after viewing it, the foreman has to submit the question(s) in writing after the jury returns to the jury room.
Judge: Mr. Prosecutor, do you have any objection to admitting the exhibit for illustrative purposes?
Prosecutor: No objection, your Honor.
Judge: Very well. Defendant’s Exhibit 1 is admitted for illustrative purposes.
Q: Deputy McGuire, directing your attention to page 19, lines 2-6 of the transcript of the suppression hearing on November 26, 2006, were you asked the following question by defense counsel and did you give the following answer under oath?
Question by defense counsel:
“So, pretty much it’s your practice, if considering DUI, is to document all of those things that would be consistent with drug or alcohol impairment?”
You answered: “Yes.”
A: Uhm, well, Yes, I guess I did.
Q: You answered “Yes,” didn’t you?
Q: Thank you.
When faced with an equivocating witness, and cops and experts do like to equivocate at times, I often used the technique, which I illustrated here, of repeating the question until the witness answered it. Defensive prosecutors often rise to the bait and attempt to defend their witness by objecting on the basis that the question was “asked and answered.”
I would respond to the objection by stating, “The witness is being evasive. The question calls for a simple “yes,” or “no,” and I intend to keep asking it until he answers it.”
Usually, the judge would turn to the witness and ask him, if he could answer the question “yes,” or “no.” Every time I used this technique and got the judge to intercede, the witness answered “Yes.” Then the judge overruled the prosecutor’s improper objection and allowed me to continue and cement the answer in the jury’s collective memory accompanied by the impression that the cop or the expert was attempting to hide something and the prosecutor was attempting to assist the witness to do it.
Sharp and experienced trial lawyers can devastate their opponent’s case by impeaching their witnesses with prior inconsistent statements.
Until tomorrow then . . .