by Britta Stanton
Impeaching a witness effectively is the best real life equivalent to your own Perry Mason or “You can’t handle the truth” moment for a trial lawyer. It kills the witness’s credibility and bolsters your own. But, if you do it wrong, it kills your credibility. So, how do you do it right?
1. Take a good deposition.
First, you have to get a clean admission on the record. If you get a witness to testify he “thinks” he was going “about” 50 miles per hour, you are probably not going to be able to impeach him on his speed. Hone in on a clear statement of fact to set up later trial impeachment. “So, as best you can remember, you were going at least 45 miles per hour?” “Yes.” Spend some time on it during the deposition, because the record never looks as clear as you think it will.
2. Know the rules and your judge.
Texas Rule of Evidence 613(a) covers examining witness about prior inconsistent statements. Read it. Also, know your judge. Not all judges are sticklers about impeachment. Some are. Some judges hate video impeachment. Others will just let you start playing a clip.
3. Set him up.
“How fast were going, Mr. Witness?” “Maybe 30 miles per hour.” He is committed to his testimony. Now you can impeach him. Before you get too excited, know your deposition citation, check it, and make sure you have a clean impeachment. I usually have impeachable points quoted out as footnotes in my examination outlines so I know exactly what I need the witness to say to contradict his prior testimony. Once you are sure, grab your copy of the deposition and turn to the right page. Have the witness repeat his testimony at trial if you are not sure that you have a clean inconsistency, or if you are not sure that the jury heard it.
Now, lay the foundation. Ask, “Do you recall giving a deposition in this case? I was there. You were there. Your lawyer was there. And you swore to tell the truth. Just like you raised your right hand and swore here today to tell the truth.” Now, you have told the witness where and to whom he made the statement. You have also explained to the jury how he should not have lied at his deposition. For the first impeachment of the trial, lay it on thick. Keep questioning about how he tried to tell the truth during his deposition, how he had the opportunity to review it, how he signed it, and so forth.
Ask, “Do you recall in your sworn deposition testimony telling me you were going at least 45 miles per hour?” If he says no, you can impeach him. This step is not optional, but it is often missed.
Now, impeach him. “Let me read your sworn deposition testimony, Mr. Witness. Counsel: page 128, line 5.” Ask to approach, and point to the deposition testimony while you read. You might say “Follow along, as I read from your sworn testimony.” Then, “I asked you, ‘So, as best you can remember, you were going at least 45 miles per hour?’ And you answered “Yes.’” Do not let him read it—he will start to equivocate and read other parts of the deposition. Do not let him answer the question “What was your response?” He will just start to explain it and the jury will not hear it. Remember, you are in the driver’s seat. Do not cede control to a lying witness.
You did it! Great job. If you did it right, you took a serious chunk out of the witness’s credibility. And you did not lose any of your own credibility. Now, stop speaking. Why? Now is not the time to say “Why did you tell us 35 miles per hour and before you said 45 miles per hour?” The witness will come up with some explanation. Do not let him. Do not ask one question too many. Just let his lying sit with the jury. He can explain himself on redirect. There is nothing more for you to do than bask in the glory of your own Perry Mason moment.
Britta Stanton is a partner at Lynn Pinker Cox & Hurst, LLP and the chair of the DBA’s Trial Skills section. She can be reached at firstname.lastname@example.org.