Part of being an effective trial lawyer is the ability to cross examine
witnesses. Usually there is at least one witness whom you need to effectively
impeach and demonstrate that they are wrong. And usually there is at least
one witness you need to show that they are just not credible or believable.
Many times you won’t be able to find physical evidence or other
circumstantial evidence that contradicts them. You have to show that there
word simply can’t be trusted.
Examples of Impeaching a Witness
A lot of times you can show a witness is wrong by physical evidence or
circumstances that cast doubt on their accuracy. You may be able to show
that their positioning makes it impossible for them to have seen what
they claim. Or you may be able to show that the lighting was such that
they could not have seen what they claim. Eyewitnesses are frequently
wrong and a good lawyer searches the situation for physical proof or physical
circumstances that prove that they are most likely wrong. A witness like
that can be impeached gently. You don’t have to accuse them of being
a liar, you just have to show them to be wrong. Sometimes when presented
with the proof they will cave in and admit they could be wrong.
Expert Testimony Used in Undermining a Witness
Sometimes you need to bring in an eyewitness expert to talk about the psychological
phenomenon and the physical situation to demonstrate to the jury how witnesses
tend to get things wrong. Witnesses want to be helpful and that bias causes
them to exaggerate their certainty and makes them resistant to admitting
that they just don’t know what they claimed to have known. These
eyewitness experts are usually psychologists who specialize in the social
science research of human factors, such as lighting and vision, and the
psychological factors that go into witness observations.
"Your Word Against Mine"
More difficult to cross examine is the witness where there is no physical
evidence or psychological phenomenon to contradict. They simply are accusing
you of doing something and it is their word against yours. They may have
a grudge against you, they may just not like you, or they may just be
nasty humans. In any event you have to impeach them or you will be convicted.
Building the Case Against Witness Testimony
The first thing to do is figure out what their motive is to lie. But once
you do that you still have to attack. One of the best ways to impeach
a witness like this is to impeach they with prior inconsistent statements.
In many cases a witness will give two or three statements to the police
or other agencies. Nowadays most of these statements are tape recorded,
either by video or audio or both. A lot of times the initial statement
to the police will not be recorded but by the time social services or
the detective interviews them they will be recorded.
The first thing you do is to get every statement possible. In a sexual
assault case make sure your lawyer gets the medical report from the sexual
assault response team. That report always has statements made by the alleged
victim and many times they are different than what they tell the detectives
later. Later on you can add the preliminary hearing to that list of times
they have given a statement.
Second you need to have all of the statements transcribed. Once you have
a written transcription of all of the statements you will have the tools
to impeach them with inconsistencies in their statements. This is where
the lawyer, and the client, should go over the statements several times
and compare what they said on each topic. If your alleged victim is not
telling the truth I guarantee you things will be different. Sometimes
the differences are subtle and sometimes they are huge.
If your lawyer is good they will be able to catch the witness in some unexplainable
inconsistencies. Once a witness has been caught and they realize it they
lose confidence and will likely show behavior that will cause a jury to
wonder why they couldn’t keep the story straight.
How You Can Help
You can help your lawyer by reading the various accounts carefully and
pointing out the inconsistencies by page and line. Sometimes your lawyer
won’t agree that what you have found is significant but your lawyer
will appreciate the help.