Impeachment With Prior Testimony, A Refresher
A quick refresher. In this case, here’s a quick look at the basics of impeachment with prior testimony. Specifically, using prior testimony taken under oath (for example: deposition, preliminary hearing, or grand jury proceedings).
Normally, an attorney is queued to a potential impeachment upon hearing a witness testify on direct examination when their testimony contradicts, or is contradicted by, a prior statement made by that witness.
The formula for the impeachment is really a quick two step process.
1) ask the witness to verify the statement they just made on direct; and
2) present their prior testimony, and ask them if in fact that’s what it says.
As an example, here’s what an impeachment looks like:
Q: Mrs. Johnson, you just testified that you looked at the gunman for 10-15 seconds, is that correct?
A: That’s correct.
Q: Do you recall previously testifying in court on June 16, 2008 at the preliminary hearing?
A: Yes.
Q: Turning court and opposing counsel’s attention to page 5, lines 16-22 of the preliminary transcript. Mrs. Johnson, I’d like you to take a moment and read this section of your testimony to yourself. (Give the witness a few moments to read). Do you recall being asked the question: “Did you have an opportunity to see the gunman?” and you’re answer being, “Only for a second or two, because I ran and hid behind the beer cooler.”
A: Yes.
Q: In fact, you only saw the gunman for a second or two, and not 10 or 15 seconds, correct.
A: Yes.
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A few things to keep in mind. Not all impeachments are this straightforward. A witness may very well see the blow to their credibility coming and try to manipulate the situation by arguing that their testimony was not recorded accurately. In some situations this can be countered, particularly in a civil matter, the witness can be further questioned about the fact that they were given an opportunity by the court reporter to review the transcript before it was transcribed, and further, that they failed to indicate any errors.
Perhaps the most important aspect to keep in mind in deciding whether or not to impeach, is determing what is a collateral fact or determining whether a non-collateral fact is only minimally relevant. Impeachments, if possible, should be reserved for the most relevant facts so as to maintain the powerful effect on the judge or jury.
