When cross-examination develops facts and circumstances that go to the credibility of the witness, it is generally said that the witness has been impeached. This is neither the fact nor the law. A witness is successfully impeached only when the trier of fact deter mines that the witness is not worthy of belief or that certain parts of his testimony are incredible.
Successful impeachment not only discredits a witness and his testimony but can also destroy the opposition's case.
A witness may be impeached in two ways: (1) His credibility may be destroyed as the direct result of questions propounded by the cross-examiner, or ( 2 ) he may destroy his own credibility aside from the examiner's direct questions, although the examiner may intensify the impeachment by questions.
Witness Impeaches Himself
With little or no prompting from the cross-examiner a witness may impair or destroy his own credibility in many ways.
Examples are: displaying an extremely poor appearance and demeanor on the witness stand; assuming a belligerent attitude and fighting with the cross-examiner; refusing to answer questions or hesitating unduly in answering; displaying hostility to the cross-examiner's client or extreme favoritism to the party calling him as a witness; showing a very low degree of intelligence and understanding; or giving testimony of an unbelievable character.
If the witness presents any of these attitudes or characteristics, the examiner can try to prod him to express it more forcefully by delicate questions.
Relationship to Parties
Without attempting to impeach the witness by proof of prior contradictory statements, counsel may develop the witness's bias or interest in the case on cross-examination, even if the witness evinced none on direct examination.
It is always proper to identify the witness with the party originally calling him. Thus some of the following preliminary questions may be asked (with subsequent interrogation depending on the witness's answers):
- Q. Are you related to Mr. X (the opposing party)?
- Q. If so, what is your relationship?
- Q. Are you friendly with Mr. X?
- Q. Are you connected in business with Mr. X?
- Q. Are you and Mr. X social acquaintances?
- Q. What IS the nature of your social contacts?
- Q. Do you visit at each other's homes?
- Q. Are you members of the same country club or other organization?
- Q. Are your wife and Mr. X's wife related in any manner?
- Q. Are you indebted to Mr. X?
If counsel has cause to believe that the witness has some interest financial or other, in the result of the litigation, he should question the witness along these lines:
- Q. Have you any financial interest in the outcome of this case?
- Q. Are you interested in any matter that this case may have a bearing on?
- Q. If this case terminates favorably for Mr. X, will it result in some future activity on your part that may be of financial interest to you?
It may develop that a witness has actively assisted the opposite side in preparation of its case. This should be brought out:
- Q. Have you contributed or promised to contribute any financial aid to the conduct of this case?
- Q. Have you been active in procuring witnesses in support of Mr. X's case?
- Q. Have you interviewed any person to determine if he or she would be a supporting witness for Mr. X?
- Q. Have you been in constant attendance during this trial?
- Q. During this trial have you been giving advice and information to opposing counsel?
The cross-examiner should investigate whether the witness compared notes with other witnesses on the same side. This may indicate that he adjusted his testimony to conform to that of others. Counsel may ask:
- Q. Have you discussed this case with the other witnesses?
- Q. How often have you discussed this case with them?
- Q. How recently did these conferences take place?
- Q. With whom did you discuss this case?
- Q. Did you discuss your testimony with these other witnesses?
- Q. Did you and these other witnesses discuss what knowledge of the situation each of you had?
- Q. Was such a conference called so that each of you could refresh the other's memory of what was said and done?
- Q. Was any conference with other witnesses called for in the presence of opposing counsel?
- Q. Was any conference with other witnesses called by and in the presence of Mr. X?
Just as relationship, friendship, or business connections with the adverse party are important in developing the witness's interest, so hostility to the cross-examiner's client may impair the witness's credibility.
Counsel can develop this by asking:
- Q. Are you friendly with my client, Mr. Y?
- Q. Have you ever had any personal difficulties with my client?
- Q. Have you ever sued my client or been sued by him?
- Q. Have you ever had financial difficulties or misunderstandings with my client?
- Q. Are any members of your family on unfriendly terms with my client or any member of his family?
- Counsel should exercise caution in asking these questions, since they may open the door to most damaging testimony against his client.
The examiner must, of course, pick and choose from among all these questions those that fit his situation. If any questions produce favorable answers, they are valuable not only for the immediate effect produced in the minds of the judge and jurors, but also for use in closing argument. It is absurd for counsel to rely on the triers of fact to remember the question asked and answer given by any witness. One of the purposes of counsel's closing argument is to make use of this favorable material. If he has a transcript of each day's proceedings, he should read from it and not merely summarize or give his recollection of the questions and answers. (This holds true for all important testimony in the case.)
Proof of Prior Contradictory Statements
One of the most effective ways to impeach a witness is by proof that on a prior occasion the witness made a statement that contradicts his testimony on direct examination.
Before enactment of the Evidence Code, the rules governing proof of prior inconsistent statements in California were similar to those in most jurisdictions, in that they required the witness to be asked about the prior statement while he was still on the stand and required the cross-examiner to make certain disclosures to the witness before questioning him about that statement. The Evidence Code significantly changed these rules, recognizing that the effectiveness of this type of impeachment depends to a large extent on surprise. The code eliminated the forewarning that "gives the dishonest witness the opportunity to reshape his testimony in conformity with the prior statement.
Extrinsic proof that the witness made a prior statement may now be introduced even if the witness was not asked about it while he was on the stand, provided the witness has not been unconditionally excused, i.e., can still be recalled as a witness in the case so that he can explain or deny the statement. The cross-examiner should request, at the conclusion of the cross-examination, that the witness be excused "subject to recall."
If counsel chooses to question the witness about a prior inconsistent statement during cross-examination, he need not disclose any information to the witness about the statement. Before enactment of the Evidence Code, if the prior statement was in writing the cross-examiner was required to show the document to the witness before questioning him about it.
Now it is sufficient, whether the prior statement was oral or written, to ask without further preliminaries:
Qualifying Impeaching Witness
The examiner must qualify the impeaching witness by proving that he was present when the inconsistent statement was made and heard it.
It is not correct or proper to ask the impeaching witness to relate the conversation in which the contradicting statement was made, e.g., to read or relate the questions and answers given at a prior trial or deposition.
Evidentiary Value of Prior Statement
Before enactment of the Evidence Code, California followed the rule, applicable in many jurisdictions, that a witness's prior statement that is inconsistent with his testimony at the trial is admissible only for the limited purpose of impeaching the witness, and may not be used as evidence of the truth of the matters stated.
Counsel may inquire whether the witness wears glasses and if so whether he uses them merely to read or to look into the distance. He should be asked if he had his glasses on at the time of the event he witnessed. The lighting conditions and visibility must also be brought out in the interrogation.
The examiner can ask how good the witness's hearing is. The lawyer generally tests this by dropping his voice. If the witness requests that the question be repeated, he asks it again in the same tone of voice. In some situations, the ability of the witness to under stand simple English words should be investigated.
Pitfall of Rehabilitation
When a witness has been impeached by prior contradictory statements or testimony justifying the inference that he was coached and his story fabricated, the side that called him may rehabilitate him. This is done by proving that at a time be fore the time of the impeaching statements the witness had made statements conforming to his testimony on direct examination. Such rehabilitation may not only destroy the effect of the impeachment but also fortify the witness's original testimony. Therefore, counsel should never impeach unless he is reasonably sure that the witness cannot be rehabilitated.