Cross-examination Made Simple

(Part II)

IMPEACHMENT BY INCONSISTENT
STATEMENT (& OMISSION)
 Michael DeBlis III, Esq.

• Trial Lawyer
• Actor
• Author
• NCDC Graduate
• Collegiate Hockey Player
• Marathon runner
Slaying the Dragon
 PREPARATION
• Preparation for cross-examination largely
consists of generating “paper” with which to
cross-examine.
• By “paper,” I am referring to the statements,
affidavits, or transcribed testimony of the
witness himself.
• Once the paper has been generated, a safe
cross may be conducted.
 PREPARATION
• Why paper?
• First, there is no form of control more
impenetrable than the statements, affidavits,
or transcribed testimony of the witness
himself.
• Second, to the extent that you want the jury
to believe the truth of the earlier statement,
“paper” demonstrates lack of credibility.
 PREPARATION
• The earlier statement is both the compass and
the safety net. Whenever the witness strays
from the paper by denying the exact words of
his earlier statement, he may be impeached.
• You must be ready, at all times, to “back up”
the exact words of the earlier statement with
the paper itself.
 PREPARATION
• You should no more tolerate a recalcitrant
witness staying from the written statement
than you would tolerate your teenage son or
daughter breaking curfew.
 PREPARATION
• How do you “back up” the exact words of the
earlier statement with the paper itself?
• I construct a chart for every witness that testifies
based on the witness’s earlier statement.
• If the witness is a lay witness, then the “paper” is
likely to be a formal typed-written statement. If
the witness is a police officer or detective, then
the “paper” is likely to be a police report or the
grand jury transcript of that officer’s sworn
testimony.
 PREPARATION
• My chart consists of three columns: (1) Point,
(2) Source, and (3) Supporting Facts.
• The “Point” column reduces to one sentence
each point that is favorable to my client and
that I want the jury to accept as true.
• The “Source” column describes the “paper”
where the facts supporting this point can be
found (i.e., Grand Jury transcript, police
report, Typed Statement).
 PREPARATION
• The “Supporting Facts” column marshals all
the facts, inferences, interpretations,
explanations, details, etc., that support this
point and references the page number on
which it can be found.
 PREPARATION
• The following is a sample chart. It originates
from a self-defense case. The theory of
defense is that the defendant, while minding
his own business, was “sucker punched” by
the victim and viciously assaulted. Had he not
pulled out a knife from inside his pocket, he
would have been left for dead in a pool of
blood.
 PREPARATION
• The witness is a twenty three year-old woman
who was present in the barbershop at the
time the defendant was attacked. Detectives
interviewed her shortly after the incident and
she gave a formal statement that was typed by
a stenographer.
PREPARATION
PREPARATION
 PREPARATION
• This is extremely tedious. As one of my
mentors stated, “It is pick and shovel work.”
• However, it is an essential part of preparing
for impeachment. Once the paper has been
produced, a safe cross is just a heartbeat
away.
 The Three Steps
• Below are the three steps involved for
impeachment:
– Step 1: Re-commit: Remind the witness and the
jury exactly what the witness said on direct that
you intend to contradict. This is called, “re-
committing.”
 The Three Steps
– Step 2: Accredit: This is the part where you set the
scene for the earlier statement. If you want the
jury to consider the earlier statement as being
true, the more you do to explain the reasons that
the witness had for being complete and honest at
that time; the more the jury will believe that he
probably was. I like to refer to this step as closing
off every conceivable escape route so as to “trap”
the witness. While this might sound devious, it is
permissible under the rules of evidence and is the
hallmark of a successful impeachment.
 The Three Steps
– Step 3: Confront. Let the jury know exactly what
the witness said before.
 Example
• An officer testifies on direct examination to a
fact that is inconsistent to what he wrote in
his police report. You want the jury to
consider the earlier statement (i.e., the one
made in the police report) as being true
because it is more favorable to your client.
 Example
• Practically speaking, here’s how it works:
– Step 1: “On direct examination, you said that you saw John
throw a bag of drugs onto the ground?”
– Step 2:
• “I’d like to show you a copy of your police report?”
• “Is this your report?”
• “This is the report that you wrote following the arrest?”
• “One of your responsibilities as a police officer is to
write police reports?”
• “Following an arrest, you file a report of that arrest?”
• “Your reports are received by others involved in the
investigation?”
 Example
• They rely on the information in those reports
• Your superiors rely on your reports when deciding what action to
take
• You want to assist others who are involved in the investigation
• So, of course, you are thorough, accurate, and complete when
writing your reports
• A police report must include all of the details
• Because you are only human
• And you might forget things if you don’t write them down when
they’re fresh in your mind
• If there was something that you forgot to include in your police
report, you could file a supplemental report
• You didn’t file a supplemental report in this case
 Example
– Step 3:
• Q: “I’d like to show you a copy of your police report?”
• Q: “Take a look at the first sentence of the third
paragraph?”
• Q: “It says, ‘I did not observe anything in Mr. Smith’s
hands.’”
 Example
• Notice something subtle. In this technique,
there is no fourth step: Beat the witness over
the head with the contradiction.
• Resisting the temptation to go to number four
is easier said than done. Why is it omitted?
You already have all the ammunition you need
to beat the witness “over the head” with the
contradiction and attack his credibility during
summation.
 Example
• Nothing good can happen by pushing the
witness beyond the exact words of his earlier
statement during cross-examination.
Unfortunately, Murphy’s law is such that any
attempt at doing so will backfire: the witness
will attempt to explain the inconsistency.
• In addition, the risk that the confrontation
stage will be undermined by additional
questions is substantial.
 Example
• This is why I recommend concluding the
impeachment after step three. In other words,
let the reading of the statement be the finale!
 Slight Variation to Example
• Let’s tweak this example slightly.
• The officer’s earlier statement remains the
same: “I did not observe anything in Mr.
Smith’s hands.”
• However, suppose the source of the statement
is not the officer’s police report but instead his
testimony at the grand jury hearing. If a
glimmer comes to your face, you already know
where this is heading.
 Slight Variation to Example
• What, if any step(s) of the impeachment
changes?
 Slight Variation to Example
• If you said, “The accreditation step and the
confrontation step,” you’ve guessed correctly.
 Slight Variation to Example
• Here’s how “Step Two” looks when the
“paper” is the grand jury transcript:
 Slight Variation to Example
– “This isn’t your first time testifying in this case?”
– “You testified at a grand jury hearing?”
– “Back on February 1st?”
– “In this very courtroom?”
– “You sat on the same witness stand that you’re sitting
on today?”
– “In the jury box sat the grand jury?”
– “Before the prosecutor could ask you any questions,
there was something that you had to do?”
– “You had to take an oath.”
 Slight Variation to Example
– “You know what an oath is?”
– “A sacred promise?”
– “In front of you sat a Bible?”
– “You put your left hand on that Bible?”
– “And held your right hand in the air?”
– “You promised to tell the truth?”
– “The whole truth?”
– “And nothing but the truth?”
 Slight Variation to Example
• Step Three: Confront!
 Slight Variation to Example
– “I’d like to show you a copy of the grand jury
transcript from that hearing?”
– “Specifically, page 3, line 5?”
– “The prosecutor asked you, ‘Did you observe
anything in Mr. Smith’s hands?’”
– “Answer, your answer, ‘I did not observe anything
in Mr. Smith’s hands.’”
– “You looked that grand jury in the eye and that’s
what you told them?”
 Slight Variation to Example
• You can see how exponentially more powerful
impeachment by grand jury transcript is than
impeachment by a police report.
• This gives life to a new rule: “When impeaching a
law enforcement officer, if the earlier statement
that you wish the jury to believe as true has been
testified to at a hearing where the officer has
taken an oath, the transcript from that hearing
should be used as the ‘paper’ to impeach the
officer instead of the officer’s report.”
 Pitfalls to Avoid
• POINT I: Remember the purpose of re-direct!
 Pitfalls to Avoid
• Consider what you do when it is your witness
who you expect to be on the receiving end of an
impeachment by inconsistent statement. I’m not
referring here to impeachment of your client by
prior convictions, which I am a staunch advocate
of eliciting on direct examination. The damage
caused by a bombshell this large being dropped
by the prosecutor on cross-examination would be
nothing short of devastating. You would be
perceived by the jury as “sneaky” and someone
who cannot be trusted.
 Pitfalls to Avoid
• In the words of the great Gerry Spence, “a
concession coming from your mouth is not
nearly as hurtful as an exposure coming from
your opponent’s.”
 Pitfalls to Avoid
• Returning to impeachment by inconsistent
statement when it’s your witness, you discuss it
thoroughly with the witness. You learn the reason
for the change in the story. You decide whether
or not to reveal the inconsistency on direct
examination.
• You plan the re-direct.
• Usually, the re-direct will be something like:
“Opposing counsel seems to think your testimony
today is different from what you said earlier. Is
it?”
 Pitfalls to Avoid
• In other words, it is the witness who has been
attacked and it is the witness who should
explain.

• Any form of re-direct which involves the

lawyer leading the witness in the explanation
may be fatal to the lawyer’s credibility, not to
mention unethical.
 Pitfalls to Avoid
• POINT II: Opening the door to re-direct on
cross-examination.
 Pitfalls to Avoid
• Re-direct is the other side’s attempt to
“explain away” the inconsistency.
• It is for this reason that I like to refer to it as,
“the uninvited guest.”
 Pitfalls to Avoid
• Conventional wisdom teaches us that it is not
a matter of if but when the witness is going to
explain the inconsistency and this usually
happens on re-direct.
• So one might argue, “Why does it matter if the
witness goes on a slight digression to explain
the inconsistency on cross?”
 Pitfalls to Avoid
• If the same explanation is given during cross-
examination, the information is far more
damaging than if it’s given on re-direct.
• Why?
 Pitfalls to Avoid
• Because you elicited it. And because you
elicited it, it’s as if you are endorsing it,
however tacit it might seem.
• My personal rule is to never allow my client to
suffer any harm while I am standing up. This is
like a solemn oath that I take.
 Pitfalls to Avoid
• The least I owe my client is to have no harm
befall him while I am in control of the
proceedings. He’s like an infant that I am
cradling in my arms.
• When I sit down and it is my adversary’s turn,
bad things will happen, but I should not be the
one who invites it.
 Pitfalls to Avoid
• The lawyer who can eliminate a stealthy
ambush on re-direct by setting up the cross in
such a way that re-direct is utterly
meaningless should be awarded the Medal of
Honor.
 Pitfalls to Avoid
• What can you do to avoid running afoul of
hearing a petulant explanation during cross?
• Below are a couple of questions that have
been known to welcome in “the uninvited
guest.”
 Pitfalls to Avoid
• Q1: “Were you lying then; or are you lying
now?”
• Q2: “That’s a far cry from what you told us
here today, right?”
• Q3: “Was your memory better then or now?”
 Pitfalls to Avoid
• Criticism
– The first and second questions motivate the
witness to explain. A “yes or no” answer is
inadequate, not to mention unresponsive to
either question. The judge will routinely permit an
explanation. Both questions walk straight into re-
direct. In the words of the great sage Homer,
“D’oh!”
 Pitfalls to Avoid
– The third question doesn’t fair any better. It
encourages the witness to explain. Additionally, it
has no value whatsoever. Everyone knows that
memories tend to fade over time.
– If you have already established that the prior
statement was made close in time to the event
and that it is now one year later, what can possibly
be gained by asking this question? The witness is
merely affirming that which we all know:
memories fade with time.
 Pitfalls to Avoid
– There is far more to be lost than to be gained. For
example, the witness may claim that the stress
associated with as traumatic an event as having a
gun waived in her face during a robbery prevented
her from giving a thorough and complete
statement shortly after the robbery. But after
having time to reflect, her mind is as clear as a
bell. In other words, reflection has allowed a
superior recall and the opportunity to provide a
more accurate description.
 Pitfalls to Avoid
• There is a lesson to be learned in all of this.
When anything can be lost – no matter how
trivial – and there is little or nothing to be
gained, take the safe path and do not ask the
question!
 Belated Clarification
• A less obvious form of inviting the same harm
as a result of the above questions is allowing
the witness to clarify the contradiction after
the earlier statement has been revealed.
 Belated Clarification
• In French, there is an expression that captures
the emotion behind the phrase, “Be careful!”
It’s called “Faites Attention!”
 Belated Clarification
• Once a light has been shined on the
contradiction, human nature teaches us that a
person’s motivation to explain is at its peak.
• What this means for the cross-examiner is that
you can expect the witness to be chomping at the
bit to offer an explanation and that any additional
questions will be viewed as an open invitation for
the “games to begin” (i.e., for the witness to “set
the record straight”).
 Pitfalls to Avoid
• POINT III: The impeachment not being clear to
the jury. I’ve made this mistake more times
than I care to admit and I’ve identified two
culprits.
 Pitfalls to Avoid
• First, the recommit phrase is not firmly
established. The solution is simple. Be sure to
state it clearly at the beginning.
• Returning to our example, “On direct
examination, you said that you saw John
throw a bag of drugs onto the ground?”
 Pitfalls to Avoid
• Second, the current testimony contradicts the
earlier statement by inference only.
• Solution: Express the current testimony in the
same terms as it exists in the prior statement.
 Pitfalls to Avoid
• Example
– Prior statement of witness: “It was dark under the
underpass.”
– Current testimony: “The lights were on under the
underpass.”
– Recast the current testimony in the same terms as
it exists in the prior statement. Here’s how that
might look.
 Pitfalls to Avoid
– Q: “On direct examination, you said that the lights
were on.”
– Q: “They were glowing.”
– Q: “Lighting up the darkness.”
 Pitfalls to Avoid
• From this example, an important lesson can
be learned. There may be times when it is
appropriate to add translation to the
recommit stage of impeachment.
 Pitfalls to Avoid
• POINT IV: Avoid inserting a “memory stage.”
• The “confront” stage, where the jury must be
told exactly what the witness said before, can
sabotage the entire impeachment if it is
introduced in the form of a question where
the witness is asked, “Do you remember
making the statement?”
 Pitfalls to Avoid
• The “confrontation” stage, where the jury
must be told exactly what the witness said
before, can sabotage the entire impeachment
if it is executed improperly. For example, if the
cross-examiner asks the witness, “Do you
remember making this statement?”
 Pitfalls to Avoid
• Example: In the earlier example, the
“confrontation” stage consisted of the
following phrase: “In your police report, you
wrote that you did not observe anything in Mr.
Smith’s hands.”
• Here’s what I mean by inserting a memory
stage. “Do you remember writing in your
police report that you did not observe
anything in Mr. Smith’s hands?”
 Pitfalls to Avoid
• Criticism
– First, if the officer answers, “no,” you’re up a creek
without a paddle. You cannot disprove the denial
of the witness’s own memory.
– Second, it suggests an escape route which the
witness would not otherwise have resorted to
without the suggestion.
 Pitfalls to Avoid
• Make it easy on yourself and simply have the
witness affirm the earlier statement that he
made.
 Exception to “Recommit”
• There may be times when you only want the
earlier statement to be believed and you could
care less whether or not the witness is
discredited.
• If this is your goal, then simply eliminate the
recommit stage. How does this help?
 Exception to “Recommit”
• Let’s face it. Recommitting the witness to the
direct examination version can be exhausting.
Why? The witness might know what’s coming and
doesn’t want to “look bad.” In that case, he might
be less willing to admit the truth of the earlier
statement.
• You’ll be amazed at how freely the witness agrees
with the earlier version without reminding him of
the inconsistent statement he made on direct
examination.
 Exception to “Recommit”
• But even if he suffers from “convenient
amnesia” and refuses to admit the truth of
the earlier statement, you can still conduct an
effective impeachment without sacrificing any
drama.
• How so? Go through the exact words of the
earlier statement breaking them down fact by
fact, and then ask each question one fact at a
time.
Who Reads the Earlier Statement?
• There is considerable debate over who should
read the impeaching statement. Some argue
that it should be the attorney. Others argue
that it should be the witness.
Who Reads the Earlier Statement?
• Personally, I think that it is better, not to
mention safer, for the attorney to do the
reading. Why?
• Two reasons.
Who Reads the Earlier Statement?
• First, the statement can be accompanied by
inflections and facial expressions that
emphasize its meaning. The witness, on the
other hand, will wring all of the meaning out
of it.
Who Reads the Earlier Statement?
• Second, while the witness has “the floor,” he
will take the opportunity to explain the
contradiction.
Who Reads the Earlier Statement?
• Those in favor of allowing the witness to do
the reading argue that when the witness reads
it, “he impeaches himself from his own
mouth” and there can be nothing more
satisfying then self-sabotage.
Who Reads the Earlier Statement?
• There is one time when I depart from the rule
of having the attorney read the statement and
that is when I am using omission as a form of
impeachment.
 Impeachment by Omission
• Tips for Impeachment By Omission
– The circumstances must be such that the absence
of a statement is itself a statement;
– Difficult to understand in the abstract.
 Impeachment by Omission
– Rule: When a witness makes a statement in which
he should have mentioned “Y”, the fact that “Y” is
missing from the statement is inconsistent with
the current testimony which includes “Y”.
– The witness’s silence about the fact at a time
when all of the circumstances make it likely that
he would have said it if it were true is damning! It
is of such great magnitude that the very absence
of it constitutes an admission by the witness that
the fact does not exist.
 Impeachment by Omission
– Example: The defendant, Mr. Doe, was
interrogated shortly after his arrest.
Strangely enough, it was not video
recorded. Despite being incriminating, the
only evidence that it was made (aside from
the detective’s testimony) is a one
paragraph summary that paraphrasing it in
the detective’s police report.
 Impeachment by Omission
– On direct examination, Detective Smith claims
that he told Mr. Doe that he was going to video
record the statement but that Mr. Doe refused to
make a statement if it was going to be recorded.
Detective Smith claims that Mr. Doe refused to put
his denial to be recorded on video despite being
asked to. Nor is there any written document
memorializing his refusal to be recorded.
 Impeachment by Omission
– Detective Smith’s testimony on direct: “Mr. Doe
said that he would not agree to put his refusal to
be video recorded on video.”
 Impeachment by Omission
– Step 1: Recommit: “You said on direct examination
that Mr. Doe would not agree to put his refusal to
be video recorded on video?”
 Impeachment by Omission
– Step 2: Accredit:
• As a detective, one of your duties is to fill out police
reports
• There are courses at the Academy that stress the
importance of filling out reports accurately
• You know that your reports are received by others
involved in the investigation
• Such as other members of law enforcement
• And prosecutors
• You know that they will rely on your reports
• Especially if they were not at the scene
 Impeachment by Omission
• Those who were not present will only know what
happened by referring to your report
• You want to assist others who are involved in your
investigation
• So of course you strive to be thorough, accurate, and
complete when you write your reports
• Another reason that you write reports is that in the
course of a year, you may have hundreds of cases
• You want to keep accurate records of what happened
in each case
Impeachment by Omission
• You want to keep accurate records of what
happened b/c it would be unrealistic to think
that you can memorize all of the important
facts of all of your cases
• When you prepared your report for this case,
you wanted to prepare an accurate report
detailing the important facts
• If you left something out of your report, you
could always write a supplemental report
• You didn’t write a supplemental report
 Impeachment by Omission
– Step 3: Confront: While handing the detective his
report I ask, “I’d like you to point out in your
report where you wrote that Mr. Doe would not
agree to put his refusal to be videotaped on
video?”
 Impeachment by Omission
• Detective Smith has been handed his report
and asked to read the part of it which contains
the omitted fact. Since there is nothing for
him to read, he doesn’t get to say anything.
The silence in the courtroom speaks louder
than any words and will be nothing short of
spectacular.
 Parting Words
• A colleague of mine once said, “Never shoot a
mouse in the ass with a cannon.”
• A contradiction on a minor point may be
corrected better by using a prior statement to
“refresh” the witness’s memory than to do a
full-blown impeachment.