{"id":1328,"date":"2016-05-11T08:00:27","date_gmt":"2016-05-11T12:00:27","guid":{"rendered":"https:\/\/www2.law.temple.edu\/voices\/?p=1328"},"modified":"2016-07-28T12:34:52","modified_gmt":"2016-07-28T16:34:52","slug":"impeaching-by-omission","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/","title":{"rendered":"Impeaching By Omission"},"content":{"rendered":"
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The art of witness impeachment is inextricably bound with the substantive law of<\/span>
\nevidence. Evidence rules explicitly allow for impeachment of any witness (even one called by\u00a0<\/span>the party) and set the procedures for attacking with inconsistencies \u2013 the impeaching\u00a0<\/span>document need not be shown to the witness, and impeachment must occur with there being\u00a0<\/span>some opportunity for the witness to respond and explain. But the rules are silent on at least\u00a0<\/span>two critical issues \u2013 the\u00a0<\/span>why<\/span>\u00a0of impeachment, and a definition of what exactly makes a prior\u00a0<\/span>statement \u201cinconsistent.\u201d<\/span><\/p>\n

The former question is one answered not in evidence law but in the art and techniques\u00a0<\/span>of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars\u00a0<\/span>or mistaken and unreliable. We impeach witnesses to tell or support our own story. We\u00a0<\/span>impeach witnesses for the drama it brings to the courtroom and the control it places in the\u00a0<\/span>hands of the questioner.<\/span><\/p>\n

As to when a prior statement is \u201cinconsistent,\u201d there is little in terms of a definition\u00a0<\/span>beyond inconsistency being in the eye of the advocate\/beholder, with a judge viewing that\u00a0<\/span>assessment liberally. \u00a0As one court explained,\u00a0<\/span><\/p>\n

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It is enough if the proffered testimony, taken as a whole, either by what it says or by\u00a0<\/span>what it omits to say, affords some indication that the fact was different from the\u00a0<\/span>testimony of the witness whom it is sought to contradict. Ohio’s courts should be liberal\u00a0<\/span>when determining whether two statements are inconsistent. A trial court has the\u00a0<\/span>discretion to determine whether two statements are inconsistent and whether any\u00a0<\/span>differences between prior statements and trial testimony are material inconsistencies.<\/span><\/p><\/blockquote>\n<\/div>\n

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State v. Raia, 2014-Ohio-2707, P26, 2014 Ohio App. LEXIS 2656, *12 (Ohio Ct. App., Portage\u00a0<\/span>County June 23, 2014).<\/span><\/p><\/blockquote>\n

This \u201csome indication\u201d test is to be read broadly. \u201cAny statement is\u00a0<\/span>inconsistent if under any rational theory it might lead to any relevant conclusion different from\u00a0<\/span>any other relevant conclusion resulting from anything the witness said.\u201d Weinstein’s Federal\u00a0<\/span>Evidence \u00a7 613.04[1] (2d ed. 2001).<\/span><\/p>\n

And omissions as inconsistencies? Three essential principles govern their use. \u00a0The\u00a0<\/span>omission must be on a core issue, and not collateral. Next, \u201c[p]rior statements that omit details\u00a0<\/span>covered at trial are inconsistent if it would have been ‘natural’ for the witness to include them\u00a0<\/span>in the earlier statement.\u201d And a judge\u2019s role is to ask only whether a jury might reasonably find\u00a0<\/span>the omission \u201cunnatural\u201d in light of the circumstances at the time the earlier statement was\u00a0<\/span>taken. United States v. Williams, 740 F. Supp. 2d 10, 11 (D.D.C. 2010)(citations omitted).<\/span><\/p>\n

So what are the advocate\u2019s task and art to ensure that an omission is provable and\u00a0<\/span>stands as potent impeachment material? Where the initial statement is a deposition or\u00a0<\/span>interview within the lawyer\u2019s control, the task is to ensure that the directions to the witness\u00a0<\/span>and the questions posed require complete answers, and that the deponent\/interviewee knows\u00a0<\/span>that the answers are intended to be and \u2018the last word\u2019 on the subject.<\/span><\/p>\n

How is this done? With pre-deposition instructions, such as \u201cwhen you are asked a\u00a0<\/span>question, please remember that your task is to give full and complete answers;\u201d or by asking\u00a0<\/span>questions that start with the general and then drill down to a specific point, after which\u00a0<\/span>completeness is confirmed. An example of the latter is as follows:<\/span><\/p>\n

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  • Let me review this, please.<\/li>\n
  • I asked you about \u201cX.\u201d<\/span><\/li>\n
  • You have told us what you personally knew\/saw\/witnessed.<\/span><\/li>\n
  • You have told us what you have heard\/seen in documents.<\/span><\/li>\n
  • Have you told us everything [every reason]?<\/span><\/li>\n
  • Is there anything else that you know\/heard that addresses this issue?<\/span><\/li>\n
  • Would you like any more time to think about it?<\/span><\/li>\n
  • Is your answer complete?\u00a0<\/span><\/li>\n<\/ul>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n
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    \n

    Of course, this can be done in a more colloquial, don\u2019t-tip-the-witness-off fashion, by simply\u00a0<\/span>saying \u201cI asked you for all the reasons for X decision\u201d or \u201cI asked you for all that stood out about\u00a0<\/span>the person\u201d and then following up with \u201cand you\u2019ve now told us \u2018all the reasons\u2019 or \u2018all that\u00a0<\/span>stood out,\u2019 correct?\u201d An even softer approach is \u201cAnd is there anything else you can tell us\u00a0<\/span>about [topic X]?\u201d This last works as long as \u201cX\u201d is a sufficiently narrow topic.<\/span><\/p>\n

    When there is nothing on the face of the prior statement to confirm its intended\u00a0<\/span>completeness, the art of the cross-examiner comes to the fore. Pozner and Dodd suggest three\u00a0<\/span>essential predicates that must be established as the foundation for an attack based on\u00a0<\/span>omission, after the witness is committed to the [new] trial version:<\/span><\/p>\n

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    • Showing that the person being impeached knew the need to be complete when the\u00a0<\/span>earlier statement was given, either by a pre-existing duty or because of the setting in\u00a0<\/span>which the statement was taken.<\/span><\/li>\n
    • There was a place in the earlier statement where the critical and heretofore\u00a0<\/span>unmentioned fact(s) \u00a0should have been raised.<\/span><\/li>\n
    • \u201cUnder the factual circumstances of this case, at the time of the making of the\u00a0<\/span>document, report, or hearing, the matters were known and were important.\u201d<\/span><\/li>\n<\/ul>\n

      CROSS-EXAMINATION, SCIENCE AND TECHNIQUES (2<\/span>ND<\/span>\u00a0EDITION), \u00a717.1.<\/span><\/p>\n

      The third predicate,<\/span>quoted from the text, requires restating. It should be that under the factual circumstances of\u00a0<\/span>this case, at the time of the making of the document, report, or hearing, the matters\u00a0<\/span>if<\/span>\u00a0known\u00a0<\/span>would have been understood as important and disclosed<\/span>.<\/span><\/p>\n

      It is here that the art of advocacy takes hold. Deftness should prevail over anger or\u00a0<\/span>assertiveness. The witness, conversationally, should confirm the setting of the prior statement\u00a0<\/span>and the reason(s) for completeness and detail. Illustrative are the following:\u00a0<\/span><\/p>\n

        \n
      • You were talking to the police so they could learn what the robber looked like? \u00a0So they\u00a0<\/span>could catch her before another person was harmed, right?<\/span><\/li>\n
      • You knew that this information was what would be used to decide whether to let X keep\u00a0<\/span>his job? So how X performed on the job was important?<\/span><\/li>\n
      • You were in the doctor\u2019s office to answer questions needed to decide if surgery would\u00a0<\/span>be a safe option, correct? \u00a0<\/span><\/li>\n<\/ul>\n

        Once that foundation is set, the next step is the simple one of \u201clet\u2019s read what you did tell.\u201d\u00a0<\/span>Read it aloud, with the witness reading along, and then conclude with the simple \u201cdid I read\u00a0<\/span>that correctly?\u201d And stop.<\/span><\/p>\n

        There is no need to conclude with \u201cwell, what you said today isn\u2019t mentioned, is it?\u201d\u00a0<\/span>This invites argument and, possibly, an explanation the jury might credit. Leave it to your\u00a0<\/span>closing, when the conversation is with the jury and the explanation is yours \u2013 liar, mistaken,<\/span>unreliable. Or more deftly still, let the jurors decide which it is; just give them the tools.<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

        The art of witness impeachment is inextricably bound with the substantive law of evidence. Evidence rules explicitly allow for impeachment of any witness (even one called by\u00a0the party) and set the procedures for attacking with inconsistencies \u2013 the impeaching\u00a0document need not be shown to the witness, and impeachment must occur with there being\u00a0some opportunity for the witness to respond and explain. But the rules are silent on at least\u00a0two critical issues \u2013 the\u00a0why\u00a0of impeachment, and a definition of what exactly makes a prior\u00a0statement \u201cinconsistent.\u201d The former question is one answered not in evidence law but in the art and techniques\u00a0of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars\u00a0or mistaken and unreliable. We impeach witnesses to tell or support our own story. We\u00a0impeach witnesses for the drama it brings to the courtroom and the control it places in the\u00a0hands of the questioner. As to when a prior statement is \u201cinconsistent,\u201d there is little in terms of a definition\u00a0beyond inconsistency being in the eye of the advocate\/beholder, with a judge viewing …<\/p>\n","protected":false},"author":3,"featured_media":1341,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[145,57,411,139],"audience":[55],"coauthors":[40],"class_list":["post-1328","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-faculty-commentary","tag-advocacy","tag-evidence","tag-impeachment","tag-litigation","audience-practitioners"],"yoast_head":"\r\nImpeaching By Omission - Voices at Temple<\/title>\r\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\r\n<link rel=\"canonical\" href=\"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/\" \/>\r\n<meta property=\"og:locale\" content=\"en_US\" \/>\r\n<meta property=\"og:type\" content=\"article\" \/>\r\n<meta property=\"og:title\" content=\"Impeaching By Omission - Voices at Temple\" \/>\r\n<meta property=\"og:description\" content=\"The art of witness impeachment is inextricably bound with the substantive law of evidence. Evidence rules explicitly allow for impeachment of any witness (even one called by\u00a0the party) and set the procedures for attacking with inconsistencies \u2013 the impeaching\u00a0document need not be shown to the witness, and impeachment must occur with there being\u00a0some opportunity for the witness to respond and explain. But the rules are silent on at least\u00a0two critical issues \u2013 the\u00a0why\u00a0of impeachment, and a definition of what exactly makes a prior\u00a0statement \u201cinconsistent.\u201d The former question is one answered not in evidence law but in the art and techniques\u00a0of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars\u00a0or mistaken and unreliable. We impeach witnesses to tell or support our own story. We\u00a0impeach witnesses for the drama it brings to the courtroom and the control it places in the\u00a0hands of the questioner. 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Evidence rules explicitly allow for impeachment of any witness (even one called by\u00a0the party) and set the procedures for attacking with inconsistencies \u2013 the impeaching\u00a0document need not be shown to the witness, and impeachment must occur with there being\u00a0some opportunity for the witness to respond and explain. But the rules are silent on at least\u00a0two critical issues \u2013 the\u00a0why\u00a0of impeachment, and a definition of what exactly makes a prior\u00a0statement \u201cinconsistent.\u201d The former question is one answered not in evidence law but in the art and techniques\u00a0of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars\u00a0or mistaken and unreliable. We impeach witnesses to tell or support our own story. We\u00a0impeach witnesses for the drama it brings to the courtroom and the control it places in the\u00a0hands of the questioner. As to when a prior statement is \u201cinconsistent,\u201d there is little in terms of a definition\u00a0beyond inconsistency being in the eye of the advocate\/beholder, with a judge viewing …","og_url":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/","og_site_name":"Voices at Temple","article_published_time":"2016-05-11T12:00:27+00:00","article_modified_time":"2016-07-28T16:34:52+00:00","og_image":[{"width":840,"height":560,"url":"https:\/\/www2.law.temple.edu\/voices\/cms\/wp-content\/uploads\/2016\/05\/Impeachment-Witness-2.png","type":"image\/png"}],"author":"Jules Epstein","twitter_card":"summary_large_image","twitter_misc":{"Written by":"Jules Epstein","Est. reading time":"6 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/#article","isPartOf":{"@id":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/"},"author":{"name":"Beckie Schatschneider","@id":"https:\/\/www2.law.temple.edu\/voices\/#\/schema\/person\/505b7875ef49205bf81379b92d47f94e"},"headline":"Impeaching By Omission","datePublished":"2016-05-11T12:00:27+00:00","dateModified":"2016-07-28T16:34:52+00:00","mainEntityOfPage":{"@id":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/"},"wordCount":1112,"commentCount":0,"image":{"@id":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/#primaryimage"},"thumbnailUrl":"https:\/\/www2.law.temple.edu\/voices\/cms\/wp-content\/uploads\/2016\/05\/Impeachment-Witness-2.png","keywords":["Advocacy","Evidence","Impeachment","Litigation"],"articleSection":["Faculty Commentary"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/","url":"https:\/\/www2.law.temple.edu\/voices\/impeaching-by-omission\/","name":"Impeaching By Omission - 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