Impeaching a Witness

Testimony is the solemn answers to questions posed to a witness in a lawsuit or criminal proceeding. Testimony can be oral or written. Testimony given by someone under oath during a trial — or other court-sanctioned proceedings, such as a hearing, deposition, or interrogatories – must be completely truthful. (Depositions and interrogatories are questions posed to the witness during the lawsuit’s discovery phase. Depositions are verbal; interrogatories are written).

If a witness’s truthfulness is in doubt, either side of the lawsuit can examine and challenge it. This process is known as witness “impeachment.” The word impeach means questioning someone’s integrity or ability to perform a job or task. Concerning testimony, it means questioning someone’s honesty or the truth of what they testified to.

For example, there may be doubt about the truthfulness of a person who has a criminal past and with people who have a reputation for lying. They can be impeached – that is, discredited.

Impeachment of a witness refers to cross-examining a witness to undermine their credibility. This is done by asking questions or presenting evidence that contradicts their current testimony or reveals a bias, inconsistency, or falsehood in their declarations.

In federal court, Federal Rules of Evidence 607 provides that any party may attack the credibility of a witness by introducing evidence that reflects on the witness’s character for truthfulness, prior inconsistent statements, bias, interest, or other reasons.

If one side of a legal case wants to impeach a witness, they want to establish that the witness lied or misspoke about some facts in the case. The party does this because they do not want the witness’ testimony to sway the decision-maker (judge or jury) or have any influence on the outcome of the case.

What are Some Examples of Impeaching a Witness?

There are several different methods for impeaching a witness. This includes introducing evidence that shows:

• Prior Inconsistent Statements: When a witness has given prior statements in the case that are inconsistent with statements made on the witness stand, the witness is considered an impeachable witness. For instance, if the witness made a statement to the police and later the “story” changed when the witness testified in court, the witness’s credibility can come into question and may not be included as testimony. At the least, the witness should be questioned about the inconsistencies
• Reputation for Lying: In some jurisdictions, if there is evidence to substantiate a claim that a witness has a reputation for dishonesty, a judge may impeach their testimony. Opponents can challenge the truthfulness of the testimony by calling witnesses who will testify that the person’s reputation for truthfulness is quite poor. In most states, such evidence is limited to showing the witness’s lack of truthfulness, not his bad moral character.
• Criminal Past: As the law sees it, people who have previously broken the law might have such disrespect for the rule of law that they will not honor the oath they take before testifying. If a witness has a prior criminal record, their credibility may come under question. Typically, crimes that involve deceit or untruthfulness — for example, perjury, giving a false statement, criminal fraud, and embezzlement – may warrant the impeachment of the witness. Witnesses can also be impeached if they have committed a felony, whether or not the crime involved deceit or untruthfulness. This ground for impeachment is subject to state rules and, above all, the trial judge’s discretion.
• Bias: If the witness is biased and cannot give a fair account of events or provide impartial information, they may be impeachable. For example, a close relative like a parent may not put aside their emotions about their loved one when testifying in a criminal case involving the son or daughter. If a witness cannot provide fair, unbiased, and accurate information, their testimony should not be allowed as evidence. At a minimum, the witness should be asked questions that reveal the fact that the witness is biased
• Incapacity: Should a witness have a mental disability that may affect the accuracy of information provided to the court, they are impeachable witnesses. An example may include someone who has a memory disorder and cannot recall prior events and information

There are other methods of impeachment. The methods used to impeach a witness and introduced in a courtroom hearing, trial, or deposition will vary from case to case. While the goal of impeaching a witness is to remove and discredit the witness’s testimony, how a witness impeachment proceeds depends on the situation and the circumstances of the individual case.

What are the Consequences of Impeaching a Witness?

When a lawyer wants to impeach a witness during a trial before a jury, the local court rules will often require that the lawyer tell the judge and opposing counsel in advance, alerting them to the statement that the lawyer intends to use. That preview is necessary because the judge can disallow the impeachment if the judge thinks its prejudicial impact on the jury will outweigh its value in calling the witness’s credibility into question.

Ultimately, a judge will decide whether or not a witness is impeachable. They will weigh in on the information presented by the party wishing to impeach the witness, and information presented by the other party or parties involved. The judge will decide if the witness testimony is to be included or excluded as part of the case.

The initial threshold to deem a witness credible is low. A witness is presumed to be trustworthy. The basic requirements to be a credible witness include that the person has knowledge and memory of the events and takes an oath — makes a promise — to tell the truth.

If the credibility of a witness has been attacked, the opposing party may introduce information to rebut the attack or share information about the witness that shows they have been rehabilitated.

If a judge decides to impeach a witness, then the testimony made by that witness is no longer considered credible or admissible in court proceedings. That could mean that the witness is not allowed to testify or that the jury will be instructed to exclude their testimony when they retire to consider the facts.

Eliminating or including witness testimony during a court hearing, deposition, or trial may be the deciding factor for the judge or jury regarding the matter. Therefore, impeachment is extremely important in prosecuting or defending a lawsuit.

Should I Contact an Attorney for Questions About Witness Impeachment?

If you are involved in a court case and believe that a witness’s testimony may not accurately reflect the facts surrounding the case, it is imperative to contact an experienced and knowledgeable criminal law attorney. This will ensure that all possible scenarios are covered for your particular circumstances. When there are choices to be made, an attorney can help you decide what is the best way to proceed.

While witness impeachment is commonly handled across the country, each state has its own rules of evidence. Working with an attorney who is well-informed about the local rules and procedures is important.