There are several ways to impeach a witness, including:
- Contradiction: Presenting evidence that directly contradicts what the witness has said.
- Prior Inconsistent Statements: Showing that the witness has made statements in the past that are inconsistent with their current testimony.
- Bias: Proving that the witness has a reason to lie or skew their testimony in favor of one side.
- Untruthfulness: Demonstrating that the witness has a history of dishonesty.
Impeachment can be a powerful tool, but an ineffective impeachment will result in interrupting questions from opposing counsel or the judge, lessening the effect or alienating the judge or jury.
To impeach a witness, challenge their credibility and reliability by showing the inconsistency in their testimony and other evidence. Confirm their in-court testimony that is inconsistent with a statement or document. Present the witness with the prior, inconsistent statement from their deposition, previous testimony, or document, juxtaposing the two to make the inconsistency obvious. The document is not admitted into evidence unless it is used as part of the testimony. After this, the witness’s change in testimony will be obvious, and the questioning attorney should move on to minimize the opportunity for the witness to explain themselves.
Refreshing a Witness
Refreshing a witness’s recollection, on the other hand, is a technique used when a witness is having trouble remembering certain facts. The goal isn’t necessarily to discredit the witness but to help them recall information they may have forgotten or should have known at one time. This is accomplished by showing the witness evidence that may jog their memory. Refreshing generally does not affect the credibility of the witness, and it typically doesn’t lead to any negative legal consequences unless the refreshed testimony contradicts the previous testimony or seems unreliable.
To refresh a witness’s recollection, ask the witness if seeing a specific document or piece of evidence will help them remember. Once the witness confirms that it will, present the witness with a document, object, or prior statement that may help them remember specific details relevant to the case. Ask the witness to review the item to help recall the facts and then allow them to testify based on the refreshed memory. The document is not admitted into evidence unless it is used as part of the testimony. After this, the witness should testify based on their refreshed memory, not from the document itself.
Impeachment Versus Refresher
The confusion between the two techniques results from their similarities. Both involve the use of documentary evidence, which can be deposition testimony, prior statements, or other documents. The attorney must be certain that the evidence it intends to present directly contradicts the testimony (for an impeachment) or contains the forgotten information (for a refresher). Also, the mere use of the evidence in the questioning is not sufficient for that exhibit to be admitted into the evidentiary record. Despite the use of a document, the impact is resulting from the testimony, not the document.
Both impeachment and refreshing a witness’s recollection are important tools for a trial lawyer. Impeachment is done with the goal of undermining the credibility of the witness by highlighting prior inconsistent evidence. Refreshing a witness helps the witness recall specific details by providing the witness with prior evidence to help them remember. As you continue to grow in your legal career, understanding the nuances of each technique will be essential in crafting effective strategies for your cases.
