![\"inconsistent\"](\"http:\/\/www2.law.temple.edu\/aer\/cms\/wp-content\/uploads\/inconsistent-300x180.jpg\")
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Advice on a listserve can be like medical, \u2018scientific\u2019 or political information on the internet \u2013 of questionable accuracy and dubious value.\u00a0 Yet listserves persist and advice-givers proceed apace, sometimes requiring a cooler\/older \u2018head\u2019 to intervene.\u00a0 Such was the case on a criminal defense listserve, where a lawyer sought advice on how to impeach a witness with inconsistencies and omissions.<\/p>\n
That the lawyer asked for advice was admirable, although it gave pause that such a fundamental skill was not second nature.\u00a0 What proved perturbing was the incorrect advice that followed, leading to the need for a \u2018corrective action.\u2019\u00a0 Here are the exchanges, with commentary.<\/p>\n
The lawyer\u2019s initial inquiry went along these lines:<\/p>\n
I am looking for the best way to cross a ‘victim’ who is alleging that two people robbed him at gunpoint.<\/p>\n
The police reports\u2026are consistent. \u00a0However, at the preliminary hearing\u2026he deviated on several key points [and] he added a terroristic threat.<\/p>\n
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?<\/p>\n
BTW: I was thinking about asking [the [police officer who wrote the reports] if victim\u2019s testimony at the preliminary hearing is consistent with what is in his beautifully written and thorough reports.<\/p>\n
Several replies were forthcoming, with none addressing the dangers of the \u201cby the way\u201d plan.\u00a0 Instead, some incomplete or inaccurate advice was forthcoming.\u00a0 One respondent urged that the lawyer \u201cask 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 \u2018victim’s\u2019 version.\u201d<\/p>\n
What is wrong here? Under Rule of Evidence 613, this can\u2019t be done without confronting the declarant with the inconsistencies.<\/em>\u00a0 Indeed, Pennsylvania Rule 613 is even more restrictive than its federal counterpart, as explained in the COMMENT \u2013 \u201cextrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness\u2019s examination.\u201d\u00a0 So what the listserve adviser omitted was a critical point – you must first confront the \u2018victim.\u2019<\/p>\n Below is the advice this author ultimately provided:<\/p>\n q: Today, you said the gun was purple.<\/strong><\/p>\n q: You remember talking to the police right after the incident.<\/strong><\/p>\n q: Facts were fresh in your mind<\/strong><\/p>\n q: Your goal was to be accurate and tell the police facts about what happened and\u00a0 to help catch the right person, correct?<\/strong><\/p>\n q: Let’s read together what you told the police officer that day – it says “the gun was yellow.”\u00a0 I did read that correctly, didn’t it.\u00a0 [Alternative – say to witness “you go ahead and read line 7 of the police report, from your interview.”]<\/strong><\/p>\n q: Now, today you also said XXX<\/strong><\/p>\n q: Again, let’s go the that same police report<\/strong><\/p>\n q: from the same day<\/strong><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 q: Let’s read line 9 of that report – it says BBBB<\/strong><\/p>\n d) When you are attacking witness for adding<\/em> 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.\u00a0 So set it up that way.<\/p>\n q: Today, you told the jury that the perp threatened you.<\/strong><\/p>\n q: Again, as we discussed earlier, you spoke to the police when this was fresh…<\/strong><\/p>\n q: Your goal was to be accurate and tell the police facts about what happened and\u00a0 to help catch the right person, correct?<\/strong><\/p>\n q: I am handing you the report.\u00a0 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.<\/p>\n As they say, don\u2019t take my word.\u00a0 In the classic text CROSS-EXAMINATION: SCIENCE AND TECHNIQUES (2nd<\/sup> Edition), Pozner and Dodd offer an 8-step process for impeachment by inconsistent statement:<\/p>\n The bottom line?\u00a0 Be careful with what you read on the internet or a listserve; be more careful and precise when you impeach.<\/p>\n","protected":false},"excerpt":{"rendered":" Advice on a listserve can be like medical, \u2018scientific\u2019 or political information on the internet \u2013 of questionable accuracy and dubious value.\u00a0 Yet listserves persist and advice-givers proceed apace, sometimes requiring a cooler\/older \u2018head\u2019 to intervene.\u00a0 Such was the case on a criminal defense listserve, where a lawyer sought advice on how to impeach<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,7,11],"tags":[73,74],"coauthors":[238],"class_list":["post-1739","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-evidence","category-trial-advocacy","tag-impeachment","tag-inconsistent-statements"],"yoast_head":"\n\n
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