We have all seen it or read it in a transcript – the self-satisfied if not smirking delivery of the lines “were you lying then or are you lying now” after a witness has been impeached. And what follows is all-too-often an explanation that defeats the juxtaposition of the two differing versions of events – they get reconciled or justified.
What is shocking is that this approach was endorsed in a chapter in a generally-excellent compilation of articles – THE ART OF CROSS-EXAMINATION, Charles A. Gibbons, Editor (ABA 2014). The chapter addressed use of a deposition at trial and offered an illustrative impeachment by prior inconsistent statement. The chapter author used the following two questions and answers as the finale of that examination:
Q: Now, is your testimony today correct under oath or was your testimony correct [at the deposition]?
A: I knew it at that time. I had forgotten it.
Q: Why did you give contrary testimony under oath [at the deposition]?
A: Sir, I gave you the best testimony I could at that time, and I am doing the best I can today.
THE ART OF CROSS-EXAMINATION, 306. For the chapter author, “[t]his exchange illustrates how prior inconsistent statements…can be a devastating tool to impairing a witness’s credibility.” Id. To the contrary, it was the final two questions that proved devastating to the impeachment – they surrendered control, permitted an explanation, and drew attention away from the irreconcilability of the two versions.
With two opinions – the chapter’s author’s view that this model devastates the witness, and this writer’s view that it undoes the impeachment – the issue was put to trial advocacy experts nationally. The above excerpt was shared along with two inquiries:
- Would you ask the questions (yes, no or maybe)
- Please explain your response
There was near consensus. With 21 respondents, here is how the “would you” inquiry was answered:
As to the explanations, they are reproduced here verbatim:
- For proper impeachment, I would never give the witness to explain away the inconsistency
- Do not give W the opportunity to characterize which answer is “correct.” Rather, show the inconsistency and argue it to your advantage on closing. Secondly, never give an OW the opportunity to explain away an inconsistency
- Why give the witness a chance to explain his inconsistency. If he wants to do that, let it happen on redirect. But I would simply demonstrate the inconsistency through the impeachment and then argue the inconsistency in closing. I would point out that he doesn’t do nearly enough even with what he does. Why not comment on the fact that his deposition testimony was closer in time to the acquisition. And that since then he’s had a chance to meet with trial counsel to prepare for his trial testimony. In other words, the cross-examiner can extend the impeachment and make it more pronounced still without allowing the witness to explain.
- Why ask an open-ended question that allows the witness to try to explain away the inconsistency?
- You don’t want to give the witness the opportunity to explain (wiggle) out of the contradiction.
- The mere inconsistency already looks bad to the jury, and it can be used effectively in closing argument to discredit the witnesses’ testimony. Most likely if the witness has a good explanation for the inconsistency, it will come out on redirect — but if opposing counsel is asleep at the switch, asking these questions can defuse your own impeachment efforts!
- A good impeachment speaks for itself. Plus, don’t give the witness a chance to explain themselves. If your opponent wants to redirect, fine. But don’t let anyone anyone else on your stage.
- This is an example of what not to do on cross. Why would you give the witness a chance to explain away their “devastating” answer. These are the two questions too many
- Juries are not comprised of fools, they can see that the inconsistency without the drama of “were you lying then or are you lying now” tactics. Furthermore, it gives the witness the perfect opportunity to explain away the inconsistency with “I misremembered, I apologize” and thus humanize themselves in front of the jury.
- First, both questions are open-ended–the second more so than the first. Thus, both questions surrender complete control to the witness to offer an answer and an explanation for which I’m not entirely prepared. Why gamble on that when I don’t have to gamble? Second, the whole exchange is muddy. The contrary facts aren’t evident to the reader. Rather, what is apparent is that the lawyer says they’re contrary. That’s ineffective. In my humble opinion, and minds can differ, the power of impeachment with a prior statement is placing the new fact and the prior “sworn” fact immediately next to each other, as plainly and as clearly as one can. With the proper set up questions, this side-by-side pairing lets the jury see and conclude for themselves that these two facts just aren’t the same. Their conclusion is stronger and more sticky than me uttering conclusions in the hopes they stick. I’ll reinforce THEIR conclusions on this whole exchange during my close.
- There is no reason to let him explain why he is being inconsistent. The inconsistency is clear and should be left for argument in closing.
- I think it violates one of Younger’s 10 commandments which is to never allow a witness to explain. I think the inconsistency is enough and you can highlight the reason (to your liking) in closing
- Well, first, they are open ended non-leading questions. Second, what is the benefit of giving the witness a chance to explain him/herself? You’ve caught them in a lie. Either they lied in their deposition or they lied on the stand, but either way the point of impeachment by prior inconsistent statement is to harm their credibility by pointing out the inconsistency and highlighting it for the jury. Their explanation is pointless for you as the cross-examiner.
- First, they aren’t leading. It’s cross examination. Lead. Second, the cross examiner is not using the most effective way to impeach with a prior inconsistent statement. Finally, never ask the witness to explain the difference. It’s cross. Maintain control.
- The second seems like showboating. I might ask something like the first just to drive home the point that the witness testified under oath one way in deposition and under oath again a contrary way at trial.
- That’s ridiculous. The lawyer looks like a bully (and to anyone who knows how to impeach- like the judge- incompetent), and the witness looks helpful and reasonable.
- not a TV lawyer; and I pretty much never ask why on cross
- The second question should never have been asked. The open-ended why question which allows witness to explain away. The first question was clumsy and should have been worded better.
- It’s one or two questions too far. All you need to do is get the witness to admit that it is contrary.
- You don’t know the answer and you allow the witness to explain.
So, why tempt the fates, disrespect juror intelligence, and fit the caricature of the aggressive lawyer too many jurors and judges detest. Adhering to the Othello rule, impeach wisely, not too well.
Jules Epstein (with thanks to the members of the national trial advocacy listserv who responded and shared their insights and wisdom).