Impeaching By Omission

The art of witness impeachment is inextricably bound with the substantive law of
evidence. Evidence rules explicitly allow for impeachment of any witness (even one called by the party) and set the procedures for attacking with inconsistencies – the impeaching document need not be shown to the witness, and impeachment must occur with there being some opportunity for the witness to respond and explain. But the rules are silent on at least two critical issues – the why of impeachment, and a definition of what exactly makes a prior statement “inconsistent.”

The former question is one answered not in evidence law but in the art and techniques of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars or mistaken and unreliable. We impeach witnesses to tell or support our own story. We impeach witnesses for the drama it brings to the courtroom and the control it places in the hands of the questioner.

As to when a prior statement is “inconsistent,” there is little in terms of a definition beyond inconsistency being in the eye of the advocate/beholder, with a judge viewing that assessment liberally.  As one court explained, 

It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict. Ohio’s courts should be liberal when determining whether two statements are inconsistent. A trial court has the discretion to determine whether two statements are inconsistent and whether any differences between prior statements and trial testimony are material inconsistencies.

State v. Raia, 2014-Ohio-2707, P26, 2014 Ohio App. LEXIS 2656, *12 (Ohio Ct. App., Portage County June 23, 2014).

This “some indication” test is to be read broadly. “Any statement is inconsistent if under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness said.” Weinstein’s Federal Evidence § 613.04[1] (2d ed. 2001).

And omissions as inconsistencies? Three essential principles govern their use.  The omission must be on a core issue, and not collateral. Next, “[p]rior statements that omit details covered at trial are inconsistent if it would have been ‘natural’ for the witness to include them in the earlier statement.” And a judge’s role is to ask only whether a jury might reasonably find the omission “unnatural” in light of the circumstances at the time the earlier statement was taken. United States v. Williams, 740 F. Supp. 2d 10, 11 (D.D.C. 2010)(citations omitted).

So what are the advocate’s task and art to ensure that an omission is provable and stands as potent impeachment material? Where the initial statement is a deposition or interview within the lawyer’s control, the task is to ensure that the directions to the witness and the questions posed require complete answers, and that the deponent/interviewee knows that the answers are intended to be and ‘the last word’ on the subject.

How is this done? With pre-deposition instructions, such as “when you are asked a question, please remember that your task is to give full and complete answers;” or by asking questions that start with the general and then drill down to a specific point, after which completeness is confirmed. An example of the latter is as follows:

  • Let me review this, please.
  • I asked you about “X.”
  • You have told us what you personally knew/saw/witnessed.
  • You have told us what you have heard/seen in documents.
  • Have you told us everything [every reason]?
  • Is there anything else that you know/heard that addresses this issue?
  • Would you like any more time to think about it?
  • Is your answer complete? 

Of course, this can be done in a more colloquial, don’t-tip-the-witness-off fashion, by simply saying “I asked you for all the reasons for X decision” or “I asked you for all that stood out about the person” and then following up with “and you’ve now told us ‘all the reasons’ or ‘all that stood out,’ correct?” An even softer approach is “And is there anything else you can tell us about [topic X]?” This last works as long as “X” is a sufficiently narrow topic.

When there is nothing on the face of the prior statement to confirm its intended completeness, the art of the cross-examiner comes to the fore. Pozner and Dodd suggest three essential predicates that must be established as the foundation for an attack based on omission, after the witness is committed to the [new] trial version:

  • Showing that the person being impeached knew the need to be complete when the earlier statement was given, either by a pre-existing duty or because of the setting in which the statement was taken.
  • There was a place in the earlier statement where the critical and heretofore unmentioned fact(s)  should have been raised.
  • “Under the factual circumstances of this case, at the time of the making of the document, report, or hearing, the matters were known and were important.”


The third predicate,quoted from the text, requires restating. It should be that under the factual circumstances of this case, at the time of the making of the document, report, or hearing, the matters if known would have been understood as important and disclosed.

It is here that the art of advocacy takes hold. Deftness should prevail over anger or assertiveness. The witness, conversationally, should confirm the setting of the prior statement and the reason(s) for completeness and detail. Illustrative are the following: 

  • You were talking to the police so they could learn what the robber looked like?  So they could catch her before another person was harmed, right?
  • You knew that this information was what would be used to decide whether to let X keep his job? So how X performed on the job was important?
  • You were in the doctor’s office to answer questions needed to decide if surgery would be a safe option, correct?  

Once that foundation is set, the next step is the simple one of “let’s read what you did tell.” Read it aloud, with the witness reading along, and then conclude with the simple “did I read that correctly?” And stop.

There is no need to conclude with “well, what you said today isn’t mentioned, is it?” This invites argument and, possibly, an explanation the jury might credit. Leave it to your closing, when the conversation is with the jury and the explanation is yours – liar, mistaken,unreliable. Or more deftly still, let the jurors decide which it is; just give them the tools.