If you have the option, should you take a hard or soft approach with a witness you’re going to impeach?
Soft.
What analogy can we use to describe a 3-step approach to impeachment?
A traffic stop.
Break down the traffic stop analogy (3 steps):
- Find a positive confrontation - “do you know why I pulled you over today?”
- Find a morally acceptable reason for the underlying conduct. Allow the person to save face.
- Get them to sign a confession.
What are the four big categories of impeachments?
- Prior inconsistent statement
- Direct credibility attacks
- Omissions
- Probabilities
What are the two main ways to do prior inconsistent statement impeachments?
- CCC
- Single-Sentence
What does CCC stand for?
- Commit
- Credit
- Confront
Explain “commit.”
Commit the witness to the testimony they made on direct.
Explain “credit.”
Credit how the circumstances of the prior statement make the prior statement more reliable.
Explain “confront.”
Confront the witness with the prior statement.
What are the two things that could happen as a result of the confrontation? What do you do in either event?
The witness can either admit the contradiction or deny it. If they admit it, your job is done. If they deny it, you can introduce non-collateral extrinsic evidence to prove the prior inconsistent statement.
When do you use the single-sentence method?
When there’s an unquestionable contradiction that you don’t want or need to spend that much time on.
What two kinds of witnesses do you often use single-sentence with?
Doctors and cops.
What are the two kinds of direct credibility attacks?
- Case specific
- Character evidence
What are 6 examples of case specific direct credibility attacks?
- Bias for one party
- Bias against another party
- Relationship between witness and a party
- Witness has an interest in the outcome
- Witness only testifying for direct personal benefit
- Witness shifting blame to avoid the spotlight
What are 5 examples of character evidence?
- Prior convictions
- Prior bad acts
- Reputation evidence
- Character for untruthfulness
- Witness is self-important
What are the two main types of omissions you want to elicit on impeachment?
- Failure to admit a fact on direct
- Failure to act according to a duty
What is the 3-step process for impeaching by way of an omission?
- Show the person being impeached knew the need to be complete when giving earlier statement, either because of pre-existing duty or the setting in which the statement was given
- There was a place in the earlier statement where critical and heretofore unmentioned fact(s) should’ve been raised
- Make the witness agree that in this case, at the time of the making of this document, report, or at this hearing, the matters were known and were important
What broader concept/technique helps us develop impeachments based on probability?
Psychodrama.
How does psychodrama help?
Putting yourself in the witness’s role. Think of what you would say and do.
What did the witness say or do - or NOT say or do - that seems to contradict what you would do if you were in their shoes?
Because impeachments by probability are relatively risky, you should always make sure they advance your ____.
Theme.
What is a safe haven?
A time worn excuse used by a witness to avoid arriving at the factual destination the lawyer is driving toward in a given chapter.
How do you block safe havens?
Ask questions designed to emphasize the importance of not making the mistake they made and how there was no excuse for having made the mistake.
