One of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements. This results in embarrassing situations for those attorneys. The purpose of this article is to demonstrate a proper method to impeach witnesses on the stand by the use of depositions and inconsistent statements.
When a witness makes a statement in trial that is inconsistent with his or her deposition testimony, you should first highlight the question that was answered differently at trial. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions: 1. Do you remember having had your deposition taken on (state the date)? 2. Do you remember that a court reporter was present at your deposition? 3. Do you remember having been sworn in to tell the truth? 4. Did you tell the truth on that date? 5. (If applicable) Do you remember having your attorney present at your deposition? After you have set the foundation for the impeachment, then you should ask the witness the following question: “Do you remember having been asked the following question and your giving the following answer.” At this point, you should read the question previously asked and the answer given by the witness in the deposition.
A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement, letter, etc. The trial attorney should first highlight the inconsistent trial testimony that will be impeached. Next, the lawyer should identify and authenticate the document that will show the inconsistent statement given by that same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions: 1. Do you remember having given a statement to (person) regarding how the accident occurred? 2. Did you give that statement freely? 3. Who was present when you gave your statement? 4. When was the statement given? The witness should then be shown the exhibit and asked the following question: “I show you what has been marked as Plaintiff’s Exhibit “A” for identification. Is this a copy of your sworn statement?” Finally, read the relevant portion of the statement that directly contradicts the trial testimony of the witness. Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages, lose momentum or control of the witness. There is nothing more impressive than to see an attorney properly impeach a witness through the use of inconsistent statements in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will prove to be an effective means of cross-examining even the most “dangerous” witness at trial.