Tag Archives: impeachment

I Impeach Thee!

It’s been a busy week, but I did have the time to update…

Kaitlyn’s Mock Trial Tip of the Day

Let’s talk impeachment. This is going to be relevant to both witnesses and lawyers (the excitement!), so read carefully and memorize every word that I’m going to write down. Or at least pay attention. Or..I guess, just read it?

Anyways, a witness can be impeached when the answers they give while on the witness stand disagrees with the statements they made in their affadavits. This is a real problem, for either side, because, (1), the real facts are not being told and (2), the witness is dictating the course of events. Sorry witnesses, but you should never be inventing your own version of events. Let’s talk lawyer side first. As a lawyer, you are more likely to come across a lying opposing witness, but sometimes your own team’s witness can get confused. The former is much easier to handle than the latter…

Lying opposing witness: After the witness answers with an answer that is either not in their affadavit, or contradictory to their affadavit, repeat the question, with a little increduality thrown in. If they continue to insist that their answer is correct, ask politely if they remember signing an affadavit (extra points if you can say the exact date they signed their affadavit!). At that point, it is obvious to everyone that you think the witness is lying, including the witness. If the witness is not confident/is smart, they will immediately change from a definite answer to something along the lines, “well, maybe I’m wrong…”. At this point, you whip out your copy of their affadavit, ask to approach the witness, and direct their attention to the line that contradicts their answer. Then, you read that line to the jury, emphasizing exactly the parts you want emphasized, then move on with your questioning. That last step is actually the most important step, because there’s always the slim chance that if you ask again for a definite answer, that the witness will still lie. Always resist the urge to do “Aha!” questions: that’s for closing.

You: You hit Mr. Cowell, right?

Witness: No, I did not.

You: I’m sorry, did you say you *didn’t* hit Mr. Simon Cowell?

Witness: Yes, I never touched him.

You: You gave a sworn statement in this case, right?

Witness: Yes, I did.

You: And you swore to tell the truth in that statement, right?

Witmess: Yes, I did.

You: The whole truth and nothing but the truth?

Witness: Yes.

You: And you signed that statement on February 14th, 2010, right?

Witness: Yes, I did.

You:  Your honor, I would like to approach the witness.

[Granted]

You: This is a copy of your sworn statement, isn’t it?

Witness: Yes, it is.

You: And it’s a fair and accurate copy.

Witness: Yes.

You: I’d like to direct your attention to page 3, line 27. Please follow along as I read that line. “I punched Simon Cowell in the face. He deserved it.” Did I read that correctly?

Witness: Yes.

You: After you punched Mr. Cowell, you also started yelling?…

Mistaken friendly witness: (Note that your witness never lies: they are always “mistaken”) Ask your witness if they are sure about the answer they just gave. At that point, your witness should realize that they made a mistake, and either correct themself if they know what the mistake was, or else indicate that they aren’t actually sure. Then, you can step in and graciously offer them their own affadavit to “refresh their memory”. This looks really bad for the witness, in terms of points, but it is a lot better than having the cross examining lawyer point out the mistake, which then becomes a “lie”.

You: Did you hit Mr. Cowell?

Witness: No, I did not.

You: I’m sorry, did you say you *didn’t* hit Mr. Simon Cowell?

Witness: Well…I might be mistaken….

You: Would seeing a copy of your affadavit help you to remember?

Witness: Yes, it would.

You:  Your honor, I would like to approach the witness.

[Granted]

You: Could you tell me what this is?

Witness: It’s a copy of my affadavit.

You: Is it a fair and accurate copy?

Witness: Yes.

You: I’d like to direct your attention to page 3, line 27. Could you read that line for me?

Witness: I punched Simon Cowell in the face.

You: Why did you punch Mr. Cowell?…

Okay, now for the witnesses. You know your affadavit, probably better than anyone else in the courtroom. But people make mistakes, sometimes. If your lawyer has to ask you a question again, chances are, you are mistaken. Just accept it gracefully, and ask to see your affadavit to refresh your memory (see above dialogue). If the cross examining lawyer, however, attempts to impeach you, be very careful. If you think you might be remembering information incorrectly, or you honestly are not sure about your answer, let them have the answer they expected. It is better to back out gracefully than to have it proven to the courtroom that you were lying.

However, there will be points that you know for a fact that you are correct. The most common occurrence is when quotes or events are taken out of context and used in an appropriate way. For example, last year in mock trial, I was a toy company owner who said at one point that our new product needed to be completed “cheaply and quickly, and nothing else mattered.” This quote was being used to imply that I had no regard for safety in my product. Which was a perfectly solid implication. However, the question was not “You said  that [the toy] had to be done “quickly and cheaply, and nothing else mattered“. It was “You wanted [the toy] done “quickly and cheaply and nothing else mattered.” Which seems stronger and very inconsequential in terms of how much I could disagree with the statement. But I did disagree with the statement, because safety did matter to the toy as well, as evidenced by the large number of precautions I took to insure the toy’s safety *after* I made the incriminating statement. I explained that I had said that, but I also cared about safety, just look at the steps I took to prevent injury!, approximately five times. After the sixth time they asked the question, I told them that I could not agree with the statement as it was phrased. They breathed a sigh of relief, pulled out their affadavit, pointed out the line where I had made that statement (which I had admitted to saying, mind you), then moved on. But when it came to judging, both judges remarked that they had been impressed with my commitment to the real story, even under heavy attack, and scored me very highly.

Generally, being impeached looks terrible as a witness, but there are situations where it was appropriate to hold your ground, as mentioned above. Make sure you only do so for things that are legitimately wrong, though, not mostly wrong. Those situations don’t happen very frequently. But, as mentioned before, you will know your affadavit. You will know when things are entirely incorrect. And you’ll know when you should stand your ground. You won’t know if you are actually guilty of the crime in question, but that matters less in the long run.

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