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May 31, 2011 Articles

How to Deal With Unexpected Testimony on Direct Examination

You can impeach the credibility of your witness on direct examination with the use of a prior inconsistent statement

By Hayes Hunt, Esq.

You call your last witness and things are going great. A verdict in your client's favor will be soon to follow. All you have to do is establish that there was moonlight.

    Counsel: Was there moonlight at the time you saw the accident?
    Opposing Counsel: Objection. Leading and lacks foundation.
    Court: Overruled.
    Witness: It was the sun.
    Counsel: Are you sure?
    Opposing Counsel: Objection. Asked and answered and leading.
    Court: Sustained.

The witness had previously said there was moonlight. Invariably, your next question is "Didn't you testify that . . ." and, before you can finish the question, your adversary stands up and objects. The objection is sustained followed by deafening courtroom silence. Before you say another word, you need to decide whether the witness: (1) forgot that there was moonlight, or (2) believes it is the sun.

Rule 612

If you decide your witness has made a mistake as a result of poor memory, you merely need to follow Rule 612 of the Federal Rules of Evidence and refresh the witness's recollection in the following order:

1. Establish that the witness's memory is exhausted on the specific issue or event.
You: Do you remember whether or not there was moonlight?

2. Establish that the witness's memory may be refreshed by a specific document.
You: Would your memory be helped by reading the signed statement you gave to the police an hour after the accident?
You: Your Honor, if I may, I'd like to mark this as Exhibit X. Show opposing counsel Exhibit X.

3. Give the witness the document.
You: I'm giving you your signed statement. Please read the third paragraph to yourself.

4. Allow the witness to review the document.
You: Have you had a chance to read the signed statement you gave to the police immediately following the accident?

5. Ask the witness if her memory has been refreshed.
You: Is your memory refreshed regarding the accident?

6. Take the document away from the witness.
You: May I have Exhibit X, Witness. Thank you.

7. Pause and ask your original question again.
You: Now, Witness. Was there moonlight at the time of the accident?
Witness: YES! Absolutely. I'm sorry, I got nervous and forgot.

Now that the witness has reviewed her statement, she apologizes to the jury for her mistake, smiles in embarrassment, and is completely forgiven by the jury. The moon is bright and your client's case is back on track. Don't wait for redirect/rehabilitation since a strong advocate would not ask a single question on cross.


Alternatively, if the witness insists that there was sunlight, you need to impeach. At the moment the witness gives you an unexpected and inconsistent answer, she is hostile to you. Your instinct is to pounce and ask leading questions. Your adversary is grinning like a Cheshire cat waiting to object to your next question. You call a sidebar and tell the judge that the witness is a dirty-rotten scoundrel. Meanwhile, the jury is chewing on the witness's last answer while watching you squirm.

It is a common mistake to believe that impeachment is solely reserved for cross examination. You may impeach on direct. Federal Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling the witness." The manner in which you impeach, at least to start, must be with non-leading questions pursuant to Federal Rule of Evidence 611(c). If you want to ask leading questions, you need to establish through non-leading questions that the witness is actually hostile towards you or your client. A typical example is a former employee of your client that has an axe to grind. If you cannot get the witness to openly express antagonism, just impeach with non-leading questions. The following are examples of questions you should ask the witness:

Mrs. Witness, did you provide a statement to the police an hour after the accident?
Did you want to provide the police officer with accurate details of the accident?
Did you provide the police officer with honest answers?
Did you review your statement with the police officer?
Did you read your statement to make sure you provided an accurate account of the accident?
Did you sign the statement after you reviewed it?

Your honor, may I approach the witness? Witness, showing you what has been previously marked as Exhibit X. Is that your signature?

What is the date next to your signature?

Directing your attention to paragraph 3 of Exhibit X. Did you tell the police officer there was moonlight at the time of the accident?

You have impeached the credibility of your witness on direct with the use of a prior inconsistent statement pursuant to Federal Rule of Evidence 613 (a). The moon is still full and your case is still bright.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).