In trial it’s pertinent that you maintain a consistent story line of your case. However, if you can establish inconsistency in your opposition’s case you may be able to pull the rug out from underneath them, removing the need for you to argue at all. Removing credibility from your opponent is obviously beneficial, but difficult to do definitively. Today I’ll share the tools available to remove a witness’s credibility, how to use them efficiently and effectively, leading to impeachment.
It could easily be argued that the most important aspect of impeachment is your presentation of evidence. Simply reading previous excerpts will not have the same impact as visually presenting the statements to the jury and court. Your best option for visual presentation would be to hire a trial technician. Trial technicians have the valuable ability to instantly designate previous statements and display the designation and corresponding video. This is incredibly useful when you are thrown the common curveball of someone changing their story upon reaching the stand. All you would need to do in that situation is find the alternative statement in their previous testimony and notify your trial technician of the page and line number in the transcript. Seconds afterwards, you can expect the contradictory statement to be displayed on a large screen to be easily viewed for the entire courtroom to see during questioning.
However, if you’re anticipating the witness to change their testimony, trial technicians can be used to a greater extent in a four step process, easily described as “The Four Cs of Impeachment.”
Step One: Compile
Compile a list of any statements the witness has previously made that either benefits your stance or harms your opposition’s. By categorizing your list of statements into subgroups you can be prepared for any curveball and hit it out of the park. For example, if you were defense counsel for a case involving a car accident, you would want to organize a list of each time the plaintiff’s expert suggests that the impact isn’t guaranteed to result in injuries. Trial technicians can expedite this process by synchronizing transcripts to video then word-search the transcripts to instantly find key phrases and export the corresponding videos. Generating this list of statements and videos for each stance that benefit you will prove very useful for you at trial regardless of opinion, applicable for use during cross examination, opening, and closing.
Step Two: Confidence
If the witness on the stand does not change their stance then you’re in safe waters; opposing counsel has offered support for your position on a silver platter. However if the opinion changes, your next move should be to establish witness confidence in their new perspective. Don’t beat a dead horse; you don’t want to make this new harmful statement last long in the jury’s mind, you just want to establish that this statement was not mistakenly said by the witness. This is as simple as stating “So your memory/position is that (insert witnesses statement here)?” Get them to solidly make a stance and if it deviates from his/her previous statement, you’re ready to move to step three.
Step Three: Call Up
During step three you’ll be utilizing your trial technician excessively. With his/her assistance, call up any and every document you have showing the contrast in position. Trial technicians have an abundance of methods to display multiple documents, ranging from simply showing them side by side to organizing them into a rotating carousel to be cycled through page by page. If the previous deposition was videotaped you can even organize clips of their statements next to the transcript excerpt to ensure there was no mistake in transcription or a misinterpretation of tone. Consult with your trial technician before approaching trial to discuss and demonstrate your options so you can decide which options best apply to your presentation. Now that the witness has made his/her statement and you have called up evidence where they stated otherwise, you’re ready to go on the offensive.
Step Four: Compare
Compare contrasts in previous statements against current statements and establish changes. Touch upon the fact that the witness was under oath for both statements that contradict each other and emphasize how memory deteriorates with time and that the event should be remembered more clearly before rather than now. Ask for reasons why they changed but frequently mention the previous statement that was beneficial to you and suggest that the reasons for change are not at all substantial.
At the very least, you will have removed a significant portion of the witness’s credibility, and if done definitively moving to impeach is certainly justified. All you need to know at this point is that when attempting to utilize these Four Cs of Impeachment, also remember the 5 Ps of success: Proper Preparation Prevents Poor Performance.
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