You’re in the middle of a trial and a witness for the opposing party says something on direct examination that’s unfavorable to your case. But wait – you have evidence that she said something different on an earlier occasion, and it’s contained in an official report, sworn statement, deposition, or similar document. The document is right in front of you. What do you do with it on cross-examination?
Impeaching a witness through a prior inconsistent statement can be a devastatingly effective moment of high drama in the courtroom … if done correctly. What is the most effective way to cross-examine a witness on a prior inconsistent statement? There are a few different variations to establish the foundation. I like to use this four-step process (acronym: CRAC):
- Commit the witness to her version on direct examination
- Rebut this version with the substance of the earlier statement
- Accredit the reliability of the earlier statement
- Confront her verbally with the earlier statement
Let’s go into the four steps in more detail. We will use a simple hypothetical. You represent one party in a car accident. A witness for the other party has just said on direct examination that the light was red for your client. However, in a signed statement the day after the accident she said the light was green for your client. Your goal is to impeach her credibility with the earlier statement.
Q: “You just told this jury a few minutes ago that the light for my client was red, right?”
This step requires only a single question. Keep it short and parallel the exact words of the direct testimony to minimize evasion and ensure a simple affirmative response.
Q: “In fact, isn’t it true that the light for my client was green?”
A: “No, it was red.”
Another single question, explicitly contradicts her direct testimony. Make sure you repeat exactly what she said in the earlier document that is inconsistent. It should be a short, simple question, not a compound question with multiple components. After just committing to the opposite state of facts, her response has to be a negative answer.
Q: “You gave a statement to an investigator the day after the accident, didn’t you?”
(Answers to all the questions that follow will be yes.)
“He came to your house, did he?”
“He knocked on the door, right?”
“You let him in?”
“He told you why he was there, correct?”
“He told you he wanted to know about the accident?”
“You agreed to tell him, yes?”
“You wanted to be honest about it, of course?”
“You wanted to be accurate about it, yes?”
“While you were talking he was writing, yes?”
“Then he handed the piece of paper to you?”
“You read it, didn’t you?”
“He asked if it was accurate, yes?”
“You told him it was?”
“You signed the statement, right?”
“You signed the statement because it was accurate, correct?”
This is the only step requiring multiple questions. The exact questions, and the number of questions, will depend on the type of document containing the prior inconsistent statement and the circumstances under which it was made. The general idea is to build up (“accredit”) the credibility of the prior statement. Questions that show that the witness wanted to be truthful and accurate, took the time to read the document, made corrections if necessary, signed it, etc., all help to bolster its credibility. In most cases, the statement will have been made at a time much closer to the events in question when it was fresher in the witness’s memory. The goal of this step is to convince the trier of the fact that the witness was unlikely to have been mistaken or untruthful in that document.
Q: “And in [that document] you signed, you said the light for my client was green, didn’t you?”
This step requires a single question. At this point, you will likely get a yes answer (especially if you have one hand holding the corner of a piece of paper which she likely knows says what you say it does). If the witness says yes, sit down. You’ve won! You have impeached the witness. If the witness says no, or if the witness says she doesn’t remember, you may want to take the paper in both hands and ask slowly, deliberately, “Isn’t it a fact that you said the light for my client was green?” At this point, you’ve got the witness skewered on a spear. If she is smart, she will admit the inconsistency rather than be embarrassed with the physical document itself. That’s when you say no further questions and sit down. You have won. You have impeached the witness.
If the witness continues to play games by saying she doesn’t remember or if she denies making the statement, it is then – and only then – that you need to show her the document itself. It shouldn’t come to that. Producing the document, having it marked, and showing it to her is a last resort. Think of it as something you don’t want to do unless you absolutely have to. Too many young lawyers seem to want to have the document marked and show it to the witness before even starting the foundation. You should not display the document unless and until you’ve completed all four steps and the witness is refusing to admit the inconsistent content of the document.
If you follow this four-step CRAC process you will handle most prior inconsistent statements (and even omissions in prior statements). With minor adaptations, you can use it for all types of past statements. It is a simple formula for courtroom success! Meanwhile, good luck in court!
Rick Collins, Esq., is a principal in the law firm of Collins Gann McCloskey & Barry [www.cgmbesq.com], with main offices on Long Island. He is a former prosecutor in the Office of the Nassau County District Attorney and has been practicing criminal defense since 1990. He has served as a faculty member in dozens of trial practice courses. Currently the President-Elect of the Nassau County Bar Association, he also sits on the Executive Committee of the New York State Bar Association Criminal Justice Section and is Co-Chair of its Sealing Committee. He is internationally recognized as a legal authority on performance-enhancing drugs and substances and has a nationwide practice focusing on the strength, health, and sports communities. He received his undergraduate degree from Hofstra University, Hempstead, NY, and his law degree from Hofstra School of Law, where he attended on a full academic scholarship and served on the Law Review. He is admitted to practice in New York, Massachusetts, Pennsylvania, Texas, the District of Columbia, and numerous federal courts. He can be reached at 516-294-0300.