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 Prior Statement: If It Isn’t Signed, Is It Impeachment Material?

How should judges approach a case where a testifying witness is going to be impeached, but the impeaching document was not created or adopted by the witness?  What is the rule when the impeaching lawyer has a report by person “B” that avers what testifying witness “A” allegedly said?  The rule, as is developed below,

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.

When There’s Only “Reasonable Doubt”

Law students are taught that the ‘beyond a reasonable doubt’ standard is the bedrock of the justice system, one that is desirable because, as Blackstone declared, it is “better that ten guilty persons escape than that one innocent suffer.” But does that resonate with jurors? In other words, when a lawyer argues that “the prosecution

The “Personal Knowledge” Rule: An Evidence Principle Worth Considering

Rare is the case [excepting expert testimony] where a witness is not describing what s/he claims to have seen, heard, smelled, touched or tasted. Without that sensory connection to the item at issue, there would be no relevance; and most lawyers abstain from calling a witness to testify to what was behind a closed door