Impeaching a Witness Based on Inconsistencies


One way to undermine the evidence of an opponent is to impeach his or her witnesses based on inconsistencies in his or her testimony. Lawyers are always advised to listen during the direct and cross-examination because this is the perfect time to observe the testimony and behavior of the witnesses of their opponent.

David Serna, a lawyer of over 40 years, offers helpful tips to both new and experienced lawyers. Today, he discusses prior statements of witnesses governed by the Federal Rules on Evidence 613.
Discrepancies in testimonies are expected when several witnesses are testifying to the same incident. It is but natural that these individuals remember the details of the incident differently.  However, lawyers should consider only those errors and testimonial inconsistencies that are significant and deserving of the jury’s attention. Persistently bringing up minor inconsistencies will only waste the time of the court and will most likely annoy the jury.

FRE 613 provides that extrinsic evidence of a prior inconsistent statement of a witness is generally inadmissible. Extrinsic evidence may be allowed only when the witness is given due process to explain the inconsistency and when the opposing party is allowed to interrogate such witness regarding the inconsistency. The second exception is when the interests of justice require that the evidence be admissible.

David Serna, a lawyer of the defense, reminds lawyers that they must also pay attention to testimonies that sound fabricated. This is usually evident when the witness seems to provide rehearsed answers, or when the answers to several questions seem the same.
Lastly, lawyers must look for behavioral inconsistencies. The disposition of a witness during the direct examination is usually different during the cross-examination. This may be because he or she is uncomfortable with the questions asked by the opponent’s counsel.

However, when the witness seems extremely unresponsive to the questions during the cross-examination, the lawyer must take note of such unwillingness to participate. This will help the lawyer later as he makes his or her closing arguments.

Read more advice by David Serna, a lawyer and well-known lecturer in New Mexico. Follow his blogs today.

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