Why impeach a witness? Hopefully, with good cause. We impeach witnesses to weaken their credibility and/or to advance our own stories. As described by Charles Rose in FUNDAMENTAL TRIAL ADVOCACY, “[a] properly planned impeachment is an effective exclamation point to a strong cross-examination.”
But to be effective – and indeed to be warranted – another adage must be followed during witness impeachment. It is that of the physician’s oath of primum nil nocere – first, do no harm. The impeaching evidence must never be more damaging to your cause than the in-court testimony you now seek to contradict.
This was demonstrated vividly in a murder case where, on direct examination, the witness testified to seeing the accused go around the corner, hearing a gunshot, and then seeing the defendant come back around the corner stuffing “something” into his waistband. Defense counsel, a haughty, self-confident fellow with a booming voice, proceeded to cross-examine as follows:
Q: On direct examination, you said you saw my client put something in his waistband, correct?
A: Yes.
Q: Isn’t it true that you testified at a preliminary hearing?
A: Yes.
Q: Isn’t it true that you were under oath?
A: Yes.
Q: And isn’t it true that when you testified then you said that you saw my client put a gun in his waistband?
A lesser ‘sin,’ but one that may prove just as catastrophic, occurs when counsel impeaches on a miniscule point and, in the buildup to the climax, repeats all of the damaging testimony heard on direct. This violates two precepts. First, only summarize the information you are about to contradict when it is damaging, or, as Pozner and Dodd have written, “[o]nly extract the minimum verbiage from direct examination to set up the impeachment. Do not repeat the entire direct examination chapter.” Pozner and Dodd, CROSS-EXAMINATION SKILLS FOR LAW STUDENTS. Second, make sure that the impeachment that does occur is tight and can’t be explained away.
The failure to adhere to these rules was vividly demonstrated in a recent murder trial. A street-shooting was captured on a store security camera, but the face of the perpetrator was somewhat obscured by a hoodie. The sister of the deceased, shown the video by police, identified the murderer as the defendant, explaining that she had known him all her life and recognized his attire, walk and build. [Whether this is an adequate foundation for lay opinion testimony is another matter entirely.] But her statement to police contained what might have been a small nugget for impeachment – she told police that she thought the first name of the man she claimed to have known all her life was “Kaliph.”
Let’s stop there. Can a person know someone for life and still be uncertain of a first name? Sure, particularly in a neighborhood where people also have street names or go by initials. But assume that this impeachment might have merit. Following Pozner and Dodd, one would summarize the witness’ testimony in the most succinct fashion possible, and then ‘surgically strike’ with the contradicting statement. This would be exemplified as follows:
Q: Did I hear you correctly that you said the man you believed to be my client is someone “who I have known all my life?”
A: Yes.
Q: Please read your police interview with me. It says “I believe his name is Kaliph.” Did I read that correctly?
A: Yes.
In the actual case, the ‘summarize’ rule was broken, and counsel never realized that the impeaching fact itself had little or no value because of the nickname phenomenon. Here is how counsel destroyed his client’s cause by repeating the direct ad nauseam:
Q: It’s your testimony that based on the video that you can tell –
A: Correct
Q: tell that that is my client?
A: Yes.
Q: The way you are able to tell that is because you’ve known my client for quite some time, right?
A: Yes. We all used to hang together on the block.
Q: And you know his walk?
A: Exactly.
Q: And you know all about how he hangs with?
A: Yes.
Q: And you know him very well?
A: Yep.
Q: And it’s this deep knowledge of his walk and his relationships that allows you to make this identification?
A: I know him personally. He used to hang with me and my brothers and the boys that live on Bucknell [Street] every day.
It was after this extraordinarily complete repeat of the direct, a direct coming from the grieving sister of the deceased, that the witness was shown her police statement with the “I believe” language. Even if “I believe” is a significant contradiction, the jury did not need to be reminded of the distinctive walk and the defendant’s presence on the same street on a daily basis.
But the failure to weigh the value of the impeachment was shown by two facts – the witness had told police the street name of the perpetrator in her statement. “The male wearing the hoodie pulled up is KB.” Not “I think it is KB,” but “is KB.” And defense counsel then made it worse. When the witness claimed that she expressed uncertainty about KB’s full name because she was still emotional from her brother’s murder, he again repeated the witness’ familiarity with his client.
Q: But this is someone that you’ve known for 17 years, right?
A: That’s okay. I still wasn’t – I still wasn’t right.
Q: You know his walk?
A: Yep.
Q: You know where he lives?
A: Um-hmm.
Q: You know all his friends?
A: Yes.
Suffice it to say, the transcript is available because the defendant was convicted. The lessons are real. Read this, read it again, and don’t ever do it. The method here evokes the “mountain out of a molehill” image, with a twist – here, trial counsel fought a molehill with a mountain of pro-prosecution evidence. Impeach when it’s worth it, and without repeating all of the damning evidence.