Impeachment on Direct - How to deal with unexpected testimony on direct examination - Part 2
Impeachment on Direct
How to deal with unexpected testimony on direct examination - Part 2
You call your last witness and things are going great. A verdict in your client’s favor will be soon to follow. All you have to do is establish that there was moonlight.
Counsel: Was there moonlight at the time you saw the accident?
Opposing Counsel: Objection. Leading and lacks foundation.
Court: Overruled.
Witness: It was the sun.
Counsel: Are you sure?
Opposing Counsel: Objection. Asked and answered and leading.
Court: Sustained.
The witness had previously said there was moonlight. Invariably, your next question is “didn’t you testify that” and before you can finish the question your adversary stands up and objects. The objection is sustained followed by deafening courtroom silence. Before you say another word, you need to decide whether the witness: (1) forgot that there was moonlight or; (2) believes it is the sun.
• Impeachment •
We previously discussed helping the witness remember under FRE 612. Alternatively, If the witness insists that there was sunlight, you need to impeach. At the moment the witness gives you an unexpected and inconsistent answer, she is hostile to you. Your instinct is to pounce and ask leading questions. Your adversary is grinning like a Cheshire cat waiting to object to your next question. You call a sidebar and tell the judge that the witness is a dirty-rotten scoundrel! Meanwhile, the jury is chewing on the witness’s last answer while watching you squirm.
It is a common mistake to believe that impeachment is solely reserved for cross examination. You may impeach on direct. Federal Rule of Evidence 607 provides that: “the credibility of a witness may be attacked by any party, including the party calling the witness.” The manner in which you impeach, at least to start, must be with non-leading questions pursuant to Federal Rule of Evidence 611 (c). If you want to ask leading questions, you need to establish through non-leading questions, that the witness is actually hostile towards you or your client. A typical example is a former employee of your client that has an axe to grind. If you cannot get the witness to openly express antagonism, just impeach with non-leading questions. Below are examples of questions you should ask the witness:
- Mrs. Witness, did you provide a statement to the police an hour after the accident?
- Did you want to provide the police officer with accurate details of the accident?
- Did you provide the police officer with honest answers?
- Did you review your statement with the police officer?
- Did you read your statement to make sure you provided an accurate account of the accident?
- Did you sign the statement after you reviewed it?
- Your honor, may I approach the witness? Witness, showing you what has been previously marked as Exhibit X. Is that your signature?
- What is the date next to your signature?
- Directing your attention to paragraph 3 of Exhibit X. Did you tell the police officer there was moonlight at the time of the accident?
You have impeached the credibility of your witness on direct with the use of a prior inconsistent statement pursuant to Federal Rule of Evidence 613 (a). The moon is still full and your case is still bright.
Comments (8)
Read through and enter the discussion by using the form at the endMichael E. Clark - February 22, 2011 11:32 AM
Good piece, Hayes. Thanks for sharing this. It's amazing to periodically revisit the rules of evidence and notice some of the nuances within the rules that you may not realize.
Gene Killian - February 23, 2011 8:51 AM
Hayes: Good post, Hayes. What if the witness hasn't gone rogue on you but has just made an honest mistake and is still friendly to you? I'm guessing you still introduce the police report but close the line with a different question, such as: "Ms. Witness, in light of this report, would you like to change your earlier answer?" Thoughts?
Hayes Hunt - February 23, 2011 8:53 AM
Gene, Technically, you may need to refresh recollection under Rule 612 with the police report and merely mark it as exhibit without dealing with admissibility. (Take a look at Part 1 http://www.fromthesidebar.com/). "Would you like to change your earlier answer" may be objectionable. I doubt your adversary would actually object without looking like a jerk in front of the jury. I like how you suggest closing the loop. Thanks for your comment.
Gene Killian - February 23, 2011 10:43 AM
Hayes: Yep, I missed part one. What if she says "yes I remember, and yes it was the sun" - but it's clear she inadvertently made a mistake? I guess then you go the impeachment route - gently. : )
JD Herrera - February 23, 2011 3:23 PM
Another alternative, especially to gain credibility with the jury, (provided you know the correct answer) could be, "Alright, Mr. Witness I'm not going to put words in your mouth. You tell us. Was it the sun or the moon?" Might even draw some laughter. If you need to impeach, this could be followed up with perhaps asking the court to admit and to take judicial notice from the National Weather Service or NOAA a chart relecting the time of moonrise.
Rebekah Plowman - February 24, 2011 8:52 AM
I concur, what a great piece. I have shared your piece with my associates. Thank you for sending.
Gerrard McGeachy - February 25, 2011 9:07 AM
I just joined this group yesterday and was pleased to find this informative and practical post. As a Canadian criminal prosecutor, I thought some of you may find the Canadian equivalent to your rules on this topic interesting. We have an Evidence Act, which deals with your scenario as follows:
Adverse witnesses
9. (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
Previous statements by witness not proved adverse
(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
R.S., 1985, c. C-5, s. 9; 1994, c. 44, s. 85.
(note: we use the 9(2) approach which depends upon inconsistency alone, much more often than 9(1) which depends upon a demonstration that the witness is actually adverse, and not merely inconsistent)
If you compare your rules to our evidence act, the underlying principles appear similar... basically, everyone forgets, and memories can be refreshed. The court's concern is to make sure that the recollection that emerges is genuine, and not the result of a suggestive answer. That's all for now from north of the border!
William D. Kickham - February 25, 2011 9:09 AM
No question about it -This was an excellent analysis.