My general inclination, however, is to avoid placing the impeachment at the end of the examination, mainly because my “out piece,” that recency material I want the jurors replaying long after the witness leaves the stand, has already been curated. Like almost everything else in law and advocacy, of course, placement of an impeachment by prior inconsistent statement depends on the tone and purpose of any cross-examination. Once you decide that, it’s easier to find the right sequence for the impeachment. So it’s useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. Jurors, like all of us, are best at understanding ideas if they only need to understand one idea at a time. The message is, “Members of the Jury, my client is correct about this important fact.” If an eyewitness testified at deposition that the light was green and at trial that the light was red, I would deliver that impeachment when I get to the part of the cross where I had planned to establish the light was green. As another example, if a defendant employer testified that he cared a great deal about employee safety, but he had previously made had contradictory statements, I would start the cross there. The message is, “Members of the Jury, this witness is not who you thought they were.”īut if the prior inconsistent statement is more useful as rebuttal to a substantive fact or conclusion, it’s better used topically. If I had evidence that the witness actually had a personal relationship with my opposing party, I would start the cross there. Suppose an expert testified that she is neutral and doesn’t really know the parties. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. The best place for impeachment by prior inconsistent statement depends on your primary purpose. Or is the answer that classic law professor response of “it depends?” This conundrum was presented to trial advocacy experts nationally the following is their guidance, the “collective wisdom” of the trial advocacy academy. place it chronologically in the flow of the cross?.Precisely because of the presence of dual objectives, ‘timing is everything.’ Said differently, assume a witness has information useful to the cross-examiner but also made an averment during direct examination that must be impeached with a clearly contradictory “prior inconsistent statement. He viewed it as capable of serving two ends: proving untruths and completing the story by eliciting facts that “remained suppressed or undeveloped” on direct examination, including “the remaining and qualifying circumstances of the subject of testimony, as known to the witness.” Despite early emphasis on cross-examination as being needed to expose “mendacity,” Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. The recognition of multiple goals of cross-examination is nothing new. Rarely is a cross-examination limited to an attack on credibility – there are often multiple goals which may include eliciting positive/supportive facts and ultimately telling or reinforcing the ‘story’ the witness’ examiner is presenting.
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