Advice on a listserve can be like medical, ‘scientific’ or political information on the internet – of questionable accuracy and dubious value. Yet listserves persist and advice-givers proceed apace, sometimes requiring a cooler/older ‘head’ to intervene. Such was the case on a criminal defense listserve, where a lawyer sought advice on how to impeach a witness with inconsistencies and omissions.
That the lawyer asked for advice was admirable, although it gave pause that such a fundamental skill was not second nature. What proved perturbing was the incorrect advice that followed, leading to the need for a ‘corrective action.’ Here are the exchanges, with commentary.
The lawyer’s initial inquiry went along these lines:
I am looking for the best way to cross a ‘victim’ who is alleging that two people robbed him at gunpoint.
The police reports…are consistent. However, at the preliminary hearing…he deviated on several key points [and] he added a terroristic threat.
If he testifies at trial to the new version, what is the best way to cross him on the original story without giving him a chance to explain?
BTW: I was thinking about asking [the [police officer who wrote the reports] if victim’s testimony at the preliminary hearing is consistent with what is in his beautifully written and thorough reports.
Several replies were forthcoming, with none addressing the dangers of the “by the way” plan. Instead, some incomplete or inaccurate advice was forthcoming. One respondent urged that the lawyer “ask the officer as many questions as possible that he must answer affirmatively using direct quotes from his reports to bring out every possible inconsistency from the ‘victim’s’ version.”
What is wrong here? Under Rule of Evidence 613, this can’t be done without confronting the declarant with the inconsistencies. Indeed, Pennsylvania Rule 613 is even more restrictive than its federal counterpart, as explained in the COMMENT – “extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness’s examination.” So what the listserve adviser omitted was a critical point – you must first confront the ‘victim.’
Below is the advice this author ultimately provided:
- a) Please do NOT ask the police officer whether victim’s testimony is consistent with reports. Cop is not likely to be your friend, and you may get a boomerang answer of “it was mostly consistent.”
- b) The cop will admit to doing a professional job on the case in terms of reporting what he/she was told.
- c) With the witness, keep it tight:
q: Today, you said the gun was purple.
q: You remember talking to the police right after the incident.
q: Facts were fresh in your mind
q: Your goal was to be accurate and tell the police facts about what happened and to help catch the right person, correct?
q: Let’s read together what you told the police officer that day – it says “the gun was yellow.” I did read that correctly, didn’t it. [Alternative – say to witness “you go ahead and read line 7 of the police report, from your interview.”]
q: Now, today you also said XXX
q: Again, let’s go the that same police report
q: from the same day
q: Let’s read line 9 of that report – it says BBBB
d) When you are attacking witness for adding a detail that was not in the original report, you have to show that witness had the opportunity to provide the information and that it is the type of information a reasonable person would have said in that circumstance. So set it up that way.
q: Today, you told the jury that the perp threatened you.
q: Again, as we discussed earlier, you spoke to the police when this was fresh…
q: Your goal was to be accurate and tell the police facts about what happened and to help catch the right person, correct?
q: I am handing you the report. Please take as much time as you need, but look through it and show us where it says “he threatened me.”
Save the rest for closing argument.
As they say, don’t take my word. In the classic text CROSS-EXAMINATION: SCIENCE AND TECHNIQUES (2nd Edition), Pozner and Dodd offer an 8-step process for impeachment by inconsistent statement:
- Uncover or find the inconsistency
- Physically prepare the cross-examination on inconsistency
- Establish the current version…to be impeached
- Tie the witness to the current version
- Where necessary, “translate” the versions to make them parallel/related
- Expose the inconsistent statement
- Maximize the damage or effect
- Listen for useful volunteered information
The bottom line? Be careful with what you read on the internet or a listserve; be more careful and precise when you impeach.