Taking the Sting Out: Using Direct Examination to Anticipate and Undercut Attacks on Your Witness

Sadly, it can be the rare witness who does not come with some baggage – a criminal conviction, a potential bias, an inconsistent statement, or some other challenge to her/his credibility. So, the proponent of that witness has to make a choice – bring it out first, or simply wait for the sting of cross-examination. The suggestion of this article is to do the former, a technique supported by law and, as importantly, by the tenets of solid advocacy.

As litigators, we are told emphatically that a witness’ credibility may not be bolstered before it is attacked. But this is wrong in two regards – the limitation is actually as to bolstering with character for truthfulness, which may occur only after an averment of the witness having an untruthful character; and it is inapposite when the form of bolstering has the appearance of attacking one’s own witness. Abundant caselaw makes this point.

As explained by the First Circuit nearly thirty years ago, “[t]he prosecution, having called a witness, may then ‘take the wind out of the sails’ of the defense by questions eliciting possible bases for impeachment.” United States v. Frappier, 807 F.2d 257, 259 (1st Cir. 1986). This remains accepted as basic evidence law. See also, United States v. Flemmi, 402 F.3d 79, 88-89 (1st Cir. Mass. 2005); Evans v. State, 2014 Nev. Unpub. LEXIS 492, *12, 2014 WL 1270606 (Nev. 2014) (“Either party is permitted to preemptively impeach its own witness”). As the Nevada Court elaborated,

In the present case, the State began questioning Thomas by asking if he had any prior felony convictions. Thomas later testified that he had pleaded guilty to burglary for his role in the forged check-cashing scheme. The State asked Thomas if he had received any leniency in exchange for his testimony, which Thomas testified that he had not. To the extent that Evans could have brought up Thomas’s plea in order to demonstrate bias, the State appropriately impeached its own witness to preemptively dispel the obvious issue of bias that could have been raised on cross-examination.

The most commonly cited legal foundation for this preemptive attack is Federal Rule of Evidence 607, which permits any party to impeach a witness, even its own. Reliance on this Rule is ‘bizarre’ as the impeachment is in form only, and is not meant to attack but to protect (and perhaps enhance) credibility. But having no other apparent source in the Rules – with the possible exception of Rule 611, which allows a judge to control the method and order of witness examination to “make those procedures effective for determining the truth[]” – 607 has sufficed to justify this approach when challenged on appeal.

And the advocacy theory supporting this technique? As described by Thomas Mauet, because “the opposing side has the opportunity to bring out all negative information…the better approach is to anticipate [this…] and incorporate it into the direct…” Mauet, TRIALS, 2nd Edition, 143 (Aspen 2009). Stephen Lubet concurs as long as the witness’ proponent is “sure that the information is known to the other side and will be admissible…” Lubet, MODERN TRIAL ADVOCACY, 3rd Edition, 53 (NITA, 2010).

So, how and when does an advocate ‘take the sting out?’ First, consider a definition of this idiom, which is “to make something that is unpleasant a little less unpleasant.” If that is the best to be achieved, it must be done neither at the beginning or the end of direct examination, when primacy and recency principles dictate that this is what will be remembered most and when the factfinder has yet to accept the witness as a [potentially] trustworthy source of information. Instead, it should be done deftly, but candidly, somewhere in the middle with just enough discussion to acknowledge the flaw and mitigate its harm.

Q: Ms. Witness, you’ve told us about the accident and how the cars drove that night. The jury, of course, is also entitled to know about your past. Were you convicted of a crime three years ago?

A: Yes. Theft.

Q: Please tell the jury the background.

A: I was out of work, and I stole from a neighbor.

Q: Is that case over?

A: I was on probation, and paid them back 100%.

Q: Okay. Now, earlier you told us that you were at the scene because you volunteer as part of Town Watch. Let’s talk about what happened after the police came.

A: Okay.

There are lawyers who draw the sting out as the first business of a direct examination, and these are usually prosecutors presenting a cooperating witness. Admittedly, the dynamic there is different – the prosecutor is not seeking to mitigate as much as to display her/his own candor, and this up-front disclosure is part of the greater [if unstated] motifs of ‘it takes a criminal to catch a criminal’ and ‘look at who this accused hangs out with.’ But this should be the exception, not the rule.

And should one ever forego ‘taking the sting out’ and ignore the impeaching material entirely? Two circumstances may justify that approach. Where the impeachment is so weak or petty as to bring shame upon the cross-examiner or make that party seem to be grasping for straws, the witness’ proponent may decide to leave it alone. The second circumstance is dictated by whether the impeachment is arguably improper but a judge has ruled in limine that it may occur. If the jurisdiction follows the rule of Ohler v. United States, 120 S. Ct. 1851 (U.S. 2000) that if the witness’ proponent elicits the information any objection is waived for appellate review, the decision of whether to ‘take the sting out’ must factor in the likelihood of winning or losing at trial and the strength of the issue on appeal.

Overall, however, the preemptive impeachment is actually deft bolstering, an essential litigator’s tool. if you don’t shield the witness and mitigate, the witness’ credibility will take a plunge, as will yours for failing to disclose.