EVIDENCE REFRESHER: Impeachment by Prior Omission or Inconsistent Statement John C. Donovan and Amanda L. Maris, Asst. Public Defenders, Durham NC
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Impeachment Fundamentals a) Make sure the impeachment is consistent with your Theory of Defense: i)
Which fact or version of events do you like better for your theory— the fact from the prior statement or current statement? (a) If the current version of events is better for your client than the previous version, don’t impeach! Be sure to keep a consistent theory of defense throughout the trial!
ii) What is your explanation for the witnesses’s inconsistent statement? Do you want to make the witness look like a story-teller or just mistaken? (a) Bias or motive? (b) Calculated dishonesty? (c) Unreliable observer? (perception, memory) (d) Honest mistake? (i) If the impeachment doesn’t further your narrative, don’t bother. Consider keeping the witness as a “friend” and don’t risk alienating the fact finder by roughing up the witness. iii) If you are only establishing inconsistency and not a lack of veracity, ask yourself: (1) Does the inconsistency really matter to your case? Is it an essential fact or is it just nitpicking? (2) Can the inconsistency be easily explained and the witness rehabilitated? b) Use the appropriate method to impeach: One question to establish one fact. No compound questions. No elaborate set-ups. Build up to your conclusions fact by fact, question by question. i)
Example—omission in prior statement given to the police: (a) You called 911 that day? (b) You called 911 immediately after your altercation with your husband? (c) Officer Smith arrived within minutes of your call?
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(d) You gave a statement to Officer Smith? (e) Officer Smith told you to describe what happened between you and your husband in that statement? (f) You understood you were to recall the events truthfully and accurately? (g) You understood that your statement would be relied upon by the police and the courts? (h) You wrote the statement in your own words? (i) You reviewed the statement after you wrote it? (j) You signed the statement? (Next step is to confront…) ii) Each “one fact question” should be leading and restrict the witness to a “yes” answer— (1) Leading questions should consist of affirmative statements by you with which the witness merely agrees. c) Don’t ask an impeaching question that calls for an explanation or opinion – it’s your job to later. i)
The witness typically won’t give you the conclusion you want, so don’t expect it or solicit it. (1) Trust the jury to understand the sequence of clues leading to the conclusion.
ii) Remember to explain the significance of the inconsistency later in closing argument. iii) Don’t ask that final question and elicit the witness’s self-serving explanation! d) Don’t merely review direct testimony and elicit a repetition of prior negative testimony. II. Attack the Witness’s Credibility without Hurting Your Own (The Ethics of Cross-Examination) Don’t be a wise a**. Don’t rub it in. Otherwise, the jury is likely to sympathize with the witness and not the lawyer. Do your job and get out. Let the impeaching facts speak for themselves. a) Have a good faith basis for every question you ask for impeachment purposes. b) Don’t imply facts that aren’t true. c) Don’t ask irrelevant questions to anger or humiliate the witness. III. Forms of Impeachment a) Bias, Prejudice & Motive b) Perceptual and Mental Incapacity c) Character Evidence (Rule 608) d) Prior Convictions (Rule 609) e) Prior Inconsistent Statements 2
IV. Impeachment With Prior Inconsistent Statements a) Know the witness’s prior statements before you reach trial.
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b) Pay close attention to the witness’s answers on direct (current statement) & write down those that may contradict prior statements. i)
If you don’t remember what was said, you can’t impeach!
V. Remember the FORMULA: a) Recommit + Accredit = Confront (RAC) !! VI. Recommit (Affirm & Acknowledge): a) Affirm the new: Get the witness to affirm the statement he just made at trial on direct. b) Acknowledge the old: Ask the witness if he made a previous statement (Don’t ask about the actual prior statement, just whether he made one – you will do that next!) VII. Accredit (Truthful, Evidence, Relied, Proximity, Reviewed) a) Truthful: Prior statement was made in circumstances where truth was important (e.g. victim statement on scene or took an oath at prior hearing). b) Evidence: Witness knew his statement might be used as evidence in a legal proceeding. c) Relied: Witness knew police and courts would need to rely on the statement. d) Proximity: Statement was made close in time to the events. e) [No reason to omit: Witness would have included every detail he thought was important (use in cases of omission in prior statement only).] f) Reviewed: Witness was given a chance to review the prior statement for correctness. VIII. Mark or underline the prior statement for identification (Don’t try to introduce it into evidence yet.) IX. Confront a) Confront the witness with the actual prior statement using the witness’s own words if possible, reciting it to him or her, and ask the witness if he made that statement. i)
If the witness admits making the prior statement, stop. You have established the inconsistency before the jury and are not allowed to introduce the prior statement into evidence.
ii) If the witness denies making the prior statement, then you can move to have the statement admitted into evidence as a prior inconsistent statement. Once admitted, you can: (1) read it to the jury, (2) have the witness read it (this is a reading test for the witness, not a chance to explain), or,
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(3) if you have sufficient copies for all jurors ask the court to allow you to publish it to the jury (pass it out to them). Be sure you have “blacked out” anything besides the prior statement if you publish the statement. X. Stop! a) Don’t ask the witness to give you the conclusion you want. b) Don’t expect the witness to admit he is a liar. c) Don’t ask the witness which statement is true. d) Do NOT give the witness a chance to explain the inconsistency. e) Never ask the “one question too many” conclusory question.
XI. EXAMPLE: At a preliminary hearing, the witness testified that he observed a border collie eat his homework. At trial, he testified on direct examination that he observed a beagle eat his homework. Here’s how to impeach… a) FIRST, ASK YOURSELF: Which is better for your theory of defense, the border collie or beagle eating the homework? If the beagle is better, DON’T IMPEACH. If, on the other hand, the border collie is better, use the preliminary hearing transcript to impeach the witness. RECOMMIT (Remember: Affirm & Acknowledge) 1. GET THE WITNESS TO REPEAT OR “RECOMMIT” TO THE STATEMENT HE JUST MADE AT TRIAL Q: You testified on direct examination that you saw a dog eat your homework? A: Yes. Q: And you said that dog was a beagle? A: Yes. 2. ASK THE WITNESS IF HE MADE A PRIOR STATEMENT Q: Do you remember testifying at a preliminary hearing on April 12th of this year? A: Yes. ACCREDIT 3. ACCREDIT THE PRIOR STATEMENT BY ASKING A SERIES OF LEADING QUESTIONS THAT GET THE WITNESS TO SAY IT WAS IMPORTANT TO HIM THAT THE PRIOR STATEMENT WAS TRUE (Remember: Truthful, Evidence, Relied, Proximity, Reviewed) Q: And before you testified at that preliminary hearing, you took an oath to tell the truth?
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A: Yes. Q: You knew it was important to testify truthfully at that preliminary hearing? A: Yes. Q: You knew that the court reporter was recording everything you said? A: Yes. Q: You knew that after you testified at that preliminary hearing, a judge would rely on your testimony? A: Yes. Q: And a jury would rely on it? A: Yes. Q: So you thought carefully about your answers when you were testifying at the preliminary hearing? A: Yes. Q: And you made sure you told the truth at that preliminary hearing? A: Yes. 4. MARK THE RELEVANT LINES OF THE PRELIMINARY HEARING TRANSCRIPT FOR IDENTIFICATION CONFRONT!! 5. CONFRONT THE WITNESS WITH THE ACTUAL PRIOR STATEMENT USING THE WITNESS’S OWN WORDS IF POSSIBLE, RECITING IT TO HIM OR HER, AND ASK THE WITNESS IF HE MADE THAT STATEMENT. Q: And at that preliminary hearing do you remember being asked the following question and giving the following answer? “Question: ‘What kind of dog ate your homework?’ Answer: ‘A border collie’” A: Yes b) Stop here. The witness has acknowledged the inconsistency, and is impeached. You may not introduce the transcript. You should, however, be sure to refer to the inconsistency in your closing argument. OR A: No. c) NOW OFFER THE RELEVANT LINES OF THE PRELIMINARY HEARING TRANSCRIPT INTO EVIDENCE. READ THEM OR PUBLISH THE STATEMENT TO THE JURY. 5
XII. HEARSAY NOTE: Prior inconsistent statements are not hearsay when only offered to impeach and not for their own truth. a) RULE 801(c): “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. XIII. WHO MAY IMPEACH? Can the State impeach their own recanting witness?? a) RULE 607: The credibility of a witness may be attacked by any party, including the party calling him. b) Recanting witness: The state may not call a witness solely to solicit impeachment evidence against the witness. *Be alerted to make a pretrial motion to suppress a witness’s statements (e.g. recanting domestic violence victim) in a case where the prosecutor has knowledge prior to the trial that their witness has recanted. i)
State v. Wiliams, 341 N.C. 1 (because the testimony of the State witness was other than expected, the State was permitted to impeach her with her prior statements; prior to testifying, the witness did not inform the prosecutor that she intended to testify differently, so the impeachment was allowed under Rule 607).
ii) State v. Hunt, 324 N.C. 343 (while the State may impeach its own witness with prior inconsistent statements, this may not be done as a mere subterfuge to get evidence before the jury that is otherwise inadmissible). iii) State v. Batchelor, 109 N.C. App 369 (although the credibility of a witness may be attacked by prior inconsistent statements where the party is genuinely surprised at trial, such evidence is admissible only for impeachment purposes, not as substantive evidence). c) Other relevant case law i)
State v. Covington 315 N.C. 352 (prosecutor clearing up misunderstanding of witness okay).
ii) State v. Riccard 142 N.C. App 298 (state may not impeach witness with prior statement where witness denies ever making the statement but may impeach where witness doesn’t remember making the statement or contends the statement is false). iii) State v. Jerrels, 98 N.C. App. 318 (state cannot impeach its own witness by calling another witness to recount the inconsistent statement. Likewise the party who cross-examines a witness on a collateral matter is not permitted to use other testimony to contradict unfavorable answers). iv) (For more, see the N.C. EVIDENCE COURTROOM MANUAL).
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