instance, when you confront the witness with his deposition testimony in our ex- ample, you can emphasize in your question “when you entered the intersec- tion” or “at the moment you entered the intersection” (or however the question was asked during the deposition). This focuses the jury’s attention on a precise moment and it heightens the jury’s awareness of the importance of the answer. If you have the witness read the testimony, they may read too slowly, too quickly, too quietly, or, worse yet, emphasize a different part of the exchange.
The sole purpose of such impeachment is to demonstrate the difference in sworn testimony. Never attempt to get the wit- ness to admit that they were wrong or get them to concede the point you wished to make by making the mistake of asking the witness to clarify or explain (e.g., “What did you mean?”) or ask the question di- rectly (e.g., “So where were you looking at the moment you entered the intersection?”). You have made your point by showing the jury that the witness’s testimony is differ- ent today, when it really counts, then their prior sworn testimony. Save the conclu- sions (i.e., that the defendant driver couldn’t have seen the light and/or the defendant driver is not credible because he has changed his story) for argument. If you have a witness that is particu-
larly incredible or has been impeached with deposition testimony several times,
you could even ask “Which sworn testi- mony of yours are we to believe?” If the witness then states that they have an ex- planation, politely state that their lawyer will have an opportunity to ask them more questions when you are finished.
If the
witness begins to give an explanation, raise your hand as an indication to stop and say to the witness “My point was simply that your sworn deposition testimony is dif- ferent than your testimony today.” If the witness continues with their explanation , then communicate your disinterest in the answer to the jury perhaps by turning your back on the witness and moving around the courtroom, preferably in front of the jury box or by looking at documents while the witness is speaking. If the explana- tion is particularly incredible, you could simply cross your arms or shake your head. The jury will get the point. I’d suggest that once you have im- peached a witness with a deposition transcript, that you state “why don’t we leave a copy of the transcript with you in case we need to refer to it again.” This will accomplish several things. It will serve as a leash for the witness, it will serve as a reminder to the jury that the witness has changed their testimony and it gives you the opportunity to retrieve the transcript when the witness leaves the stand after re- direct reminding the jury again that the witness’s testimony was inconsistent. Impeachment with a prior inconsistent
statement is only effective if the prior statement is indeed inconsistent. Impeach with subtle inconsistencies and you will alienate the jury and reinforce the witness’ direct testimony. And remember, brevity is power. Limit your cross-examination to a few points and the jury will remem- ber them. If you rebut every single point made in direct, the jury will stop paying attention and won’t see the hits that you score. Hopefully there techniques and suggestions will improve your cross-ex- aminations and improve your results.
Fall 2001
Trial Reporter
29
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