![]() ![]() This precludes the witness from claiming that they misunderstood the question that led to the new statement or that they simply misspoke. This can be achieved by doubling back and having the witness reiterate the new statement by your use of specific leading questions – do not paraphrase the witness’s new testimony. The first step in impeachment by prior inconsistent statements is to ensure that the witness has committed to the new statement. Of course, if your case needs all the help it can get and there are several “small” inconsistencies that you can spin into a pattern, you may have no other choice but to go there. Was the prior statement of any material significance? If not, you may lose credibility by being petty. Spencer (1969) 71 Cal.2d 933, 941.Ī primary consideration of whether you should impeach with a prior inconsistent statement is the degree of the inconsistency. The test is whether the prior statement is inconsistent in effect with the trial testimony. Code, § 780(h)) The inconsistency need not be a complete contradiction. Perhaps the most effective and most frequently used form of impairing credibility is proof of a statement or conduct by the witness that is inconsistent with the trial testimony. The three most often used methods to impair witness credibility include prior inconsistent statements, character evidence and case-specific impeachment. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest. ![]() However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony. Also, two people may see the same event but remember it differently. ![]() People often forget things or make mistakes in what they remember. Sometimes different witnesses will give different versions of what happened. Sometimes a witness may say something that is not consistent with something else he or she said. Rather, as stated in CACI 107, the jury remains the sole judge of witness believability: If you determine that you can successfully challenge a harmful witness’s credibility (impeachment) you must first understand that the impeachment does not necessarily mean that all of the witness’s testimony will be determined to be unreliable. While you do not want to give the harmful witness any more importance to the case than necessary, you may have to when the witness is the only source for the evidence. Such cross-examination may address corroboration of a timeline, the weather at the time of the occurrence, persons present at the scene, laying foundation for documentary evidence, etc. This would entail a series of simple, short statements that the witness must agree upon. When the witness has harmed your case on direct examination, you should first consider cross-examination to elicit some helpful facts. It also opens up further re-direct and the chance for something harmful to develop. Unnecessary cross-examination opens the door to a witness suddenly surprising you with something harmful. Although the jury anticipates a thorough cross and looks forward to it, you must quickly resist the temptation. When the witness has not harmed your case, there should be no reason to cross-examine, let alone challenge credibility. You must carefully analyze the first two goals before you decide to impair the credibility of a witness. Cross-examination goals essentially boil down to developing facts which support your case harm the defense case and impair credibility.
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