![]() ![]() For example, using phrases like “ today you say.” or “ today you claim. For any other witness, a more aggressive form of questioning is appropriate. To avoid alerting an experienced witness of what is about to happen, try to ask the question in a more casual manner. An experienced witness, such as a police officer, will immediately know what you are trying to do and offer an explanation. While this seems simple enough, you can easily run into trouble by tipping off the witness that you are about to impeach them. You cannot effectively impeach unless the witness repeats a fact they said during the current hearing that clearly contradicts a prior statement. Repeatįirst, the most basic step, is to have the witness repeat the testimony from today’s hearing that you want to impeach. Whatever way you choose to remember the three steps of impeachment by prior inconsistent statement, the process is the same. Alternatively, the three steps have been described as follows: repeat, build up, impeach. One of the most popular is the “three Cs,” confirm, credit, and confront. Impeachment by prior inconsistent statement has three basic steps, which have been described in a number of ways. Impeachment by prior inconsistent statement is used when a witness remembers a fact, but previously made a different statement about that fact. Below is a brief review of the mechanics of impeachment by prior inconsistent statement, as well as some tips I have learned during my time in the courtroom. Therefore, if you are about to find yourself in trial, it is critical to review this skill and ensure you are comfortable employing it properly and in a way that inflicts maximum damage. A sustained “improper impeachment” objection is not only embarrassing, it also greatly reduces the efficacy of your cross examination. However, this deceptively simple tool is often used improperly. There is no better way to drive a knife into the heart of the credibility of a witness. This is heartbreaking, because one of the most powerful and effective forms of trial advocacy is impeachment by prior inconsistent statement. I have observed lawyers of all experience levels try and fail to impeach a witness using a prior inconsistent statement. The scene I just described is not limited to new lawyers. The lawyer, now frantic and aware that the jury is watching him, gives up and moves on to the comfort of his prepared cross. The courtroom is silent, with the exception of the noise the lawyer is making by aimlessly shuffling paper on the podium. At this point, the lawyer has lost all color from his face. ![]() The opposing counsel makes the same objection, which the judge quickly sustains. The lawyer, not as aggressive this time, asks the same question but refers to a different highlighted statement. ![]() The opposing counsel stands up, and in an unassuming voice says, “objection, improper impeachment.” Before the lawyer knows it, the judge sustains the objection. The lawyer gets to the podium, pulls out a deposition transcript, and immediately demands to know whether the witness made one of the highlighted statements in the deposition transcript. The lawyer begins vigorously flipping through documents at counsel table, highlighting reports and deposition transcripts, and eagerly waits to destroy the witness on cross. The lawyer hears the witness make several inconsistent statements about critical facts. Imagine the following scene: a lawyer is in trial listening to an adverse witness testify on direct examination. Of all of the mistakes a lawyer can make in trial, one is far more gut churning than any other. I have spent thousands of hours in the courtroom, tried civil and criminal cases, and had the opportunity to observe all kinds of lawyers advocating for their clients.
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