Litigation

Cross Examination: Impeachment of Witness

A prior inconsistent statement is any statement, oral or in writing, made prior to the witness’s testimony, which is ...


A prior inconsistent statement is any statement, oral or in writing, made prior to the witness’s testimony, which is inconsistent with that testimony.

Using a witness's own prior written or spoken words can be a powerful method of impeaching the witness. If you have a significantly inconsistent statement, then the inconsistency itself is a significant element of an argument that the evidence of the witness should be accepted. In addition to the inconsistency itself there are several methods of bringing out the inconsistency in a more effective and powerful manner. If you can provide an explanation or a motive for the inconsistency, and you can tie it into your theory of the case then you can raise the significance of the inconsistency. It is possible you may want to leave the issue of the motive to the final arguments, but nevertheless you can consider bringing out, in cross-examination, the facts that support your theory of motive.

A second method of placing more emphasis on an inconsistency is to attempt to prolong the impeachment by breaking the prior testimony into multiple parts with multiple questions. By breaking it into more components, the impeachment becomes longer, and more focus is put on the inconsistency. A third method of putting more focus, on the impeachment of a witness, is to bring out as much detail as possible relating to the circumstances surrounding the making of the statement. These details could include:

  • whether the statement was made under oath or pursuant to some official duty to make the statement;
  • whether the statement was against the person’s interests;
  • whether it was made soon in time after the events in question; and-whether there was an accurate record of the statement.

Using these three methods, cross-examining lawyers can put more emphasis on the prior inconsistent statement. A prior statement on a material after by itself can be very significant. It can appear even more significant with the proper focus on the details and motive behind the changing of the evidence.

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