Impeaching a Witness
In many commercial cases, witnesses present contradictory testimony about important facts. One witness may testify that she delivered perfectly fine goods, and another witness may testify that the delivery never took place or that the goods were completely unusable. If the case proceeds to trial, a lawyer needs to develop a strategy to convince the judge or jury to believe the witnesses that support her side and not to believe opposing witnesses. The process of undermining the credibility of a witness is called impeaching a witness.
Why should you read this post about impeaching a witness?
You have already read my post about cross-examination and you’d like to know more about politely doing in public what would normally be a rude conversation.
You know that it may not be enough to just present helpful evidence at trial, but to address unhelpful evidence as well.
An adverse witness is testifying right now and you are frantically searching the internet for advice about what to do.
Image credit: https://commons.wikimedia.org/wiki/File:Sidney_Paget_-_The_Boscombe_Valley_Mystery_02.jpg
Inconsistent Statements
The primary way a lawyer can undermine the credibility of a witness is to reveal that the witness has made inconsistent statements. If the witness said inconsistent things, then logically one of the statements must be false. And this means either that the witness is lying on the stand or that the witness must admit having lied in the past, which undermines her credibility generally.
Investigating the Source of the Witness’s Knowledge
It is relatively easy for a witness to make a general statement that is helpful for her side of a case. But many people make statements based on what they feel to be true rather than what they know. And to illuminate the difference, a lawyer may examine the witness based on the source of her knowledge, or the “foundation” of her testimony.
Setting Traps
Occasionally, a lawyer may lead a witness down a line of questioning in which the witness makes a statement that can be easily refuted or that is not credible. These situations are rare, I’ve seen them happen a few times.
Setting traps works when the lawyer is confident that she knows how a witness will answer a question and that the answer will be demonstrably false. So, for example, if the lawyer is confident that the witness will testify that a light was red, the lawyer may ask what color the light was, and then show a picture of a green light to reveal that the witness was wrong.
This tactic better at depositions than it does at trial since it involves asking questions that the attorney does not already know the answer to. The witness may have reasonable answers, which will make the judge or jury think that the attorney is wasting their time. But at a deposition, or when a trial attorney is willing to take a risk, a lawyer can set a trap for a witness to give an answer she expects even though it will undermine the witness’s credibility.
One way to accomplish this method is to have an exhibit ready that disproves the witness’s expected statement. So if the witness testifies that she has never used a bank account, the lawyer may start by asking her whether she did so and then immediately thereafter show a bank statement that reveals that she did use the bank account. Another way to accomplish this is to lead a witness to make a statement that is inherently unbelievable. So if a witness testifies that every member of the defendant’s family was deliberately torturing her, it may be worth asking if the defendant’s toddlers did, too. If she says yes, that may help undermine her credibility.