You don’t say … or maybe you did: a brief explanation of witness impeachment by prior inconsistent s
In a criminal trial, one of the jury’s main tasks is to evaluate and weight the evidence that was presented in court. There is no set calculus, mathematical process, or mechanical application as to how the jury is supposed to accomplish this task; jurors are simply left to their common sense and the jury instructions provided by the court.
Although jury deliberations are completely private, the general understanding is that during jury deliberations, the jurors are supposed to carefully consider the testimony and evidence that was presented to them during the trial to determine if the prosecution proved its case beyond and to the exclusion of a reasonable doubt. Before the jurors retire to deliberate, the jurors are instructed that “it is up to [them] to decide what evidence is reliable.” The jurors are provided with basic jury instructions that outline general propositions for “weighing” the evidence.
There are few reasons offered to the jurors in the instructions as to why a jury might not want to believe a specific witness. One of the possible reasons is: has the witness been impeached? In this sense, “impeached” means that it has been demonstrated that the jury should not believe this witness for whatever reason. In fact, impeachment is a potential reason for the juror or the jury, as a whole, to find a witness less reliable or completely unbelievable.
Generally, witness impeachment refers to the process for calling into question the credibility of the witness.[i] There are several different acceptable impeachment reasons that a juror may use to believe or not believe a witness.[ii] For instance, the witness is biased, or has been convicted of a felony or crime of dishonesty or has an interest in the outcome of the case or was paid to testify. Any of these reasons might tip the scales into drawing into question the truth and veracity of a witness’s testimony or claims. Keep in mind, all witnesses called to the stand to testify under oath put their credibility at issue in a trial.[iii] All witnesses have their credibility judged by the jury.
In Florida, the jury is specifically instructed in a criminal case as follows, “It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence. … You should consider how the witnesses acted, as well as what they said. … You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.”[iv]
Impeachment by prior inconsistent statement can be a powerful way to discredit a witness’s testimony. Take for instance the following: a witness was interviewed at the crime scene by officers and states, “I saw the light and the light was green.” Now fast forward several months and the witness is now on the stand, on direct examination, under oath, and testifies to the jury in response to the prosecutor’s questions and states, “I saw the light and the light was red.” The jury has heard that the “light was red” and has no idea that the witness has previous on the night in question said the “light was green” which is something completely different. On cross-examination, the defense attorney can offer the other statement to the witness to demonstrate that the witness made another statement at another time.
The theory is simple: the purpose of allowing the use of a prior inconsistent statement is not to prove the truth of the prior statement, but to merely show that the witness may not be credible or believable because the witness has made a different statement from the one that the witness has just testified to in court. The prior statement could be evidence of fabrication or deceit, improper influence or motive, or simply faulty memory. In any event, the jurors need this information to accurately evaluate the testimony and make their own determination. A witness’s ability to recall their testimony and tell the truth are always questions for the jury to decide.
For instance in the above example, the introduction of the “the light was green” is not offered to prove that the light was actually green on the night in question. It is offered to pose a credibility question to the jury that goes something like this: if the witness is now testifying that the light was red, but previously said that the light was green then when he was first interviewed, then which is it? Was the light red or was the light was green? And how do you decide which to believe? How do you know which is the truth?
Some may scoff at this, but in some instances, the ability to impeach a witness may demonstrate a problem with the witness's testimony and may be the reasonable doubt that the jury needs to acquit the accused.
At trial, if the witness is confronted with the prior inconsistent statement and admits to making it, then the impeachment is accomplished, and no further evidence is required. Use the above example, the questioning may go something like this in its basic form:
“Mr. Smith, you testified on direct that the ‘light was red,’ is that correct?”
“You were questioned by law enforcement officers at the crime scene on the night in question, right?”
“At that time, you said that the ‘light was green,’ did you not?”
“Yes, I did.”
No further questioning is required because the witness has admitted to the prior inconsistent statement. It would now be up to the attorney to argue to the jury during closing arguments that the jury should not believe so-and-so because he made two different statements about the incident and can’t be trusted.
There are some technical aspects of the impeachment.[v] Any prior inconsistent statement may be offered to impeach a witness and demonstrate the inconsistency. The prior statements do not have to be under oath. There is a common misconception that the prior inconsistent statement must have been made in a deposition or under oath; this is simply not true.
The witness must “distinctly admit” to making the prior inconsistent statement to impeach. If the witness does not remember or recall making the prior statement, extrinsic evidence may be offered to prove the prior statement. Extrinsic evidence refers to another witness who heard the statement or a document like a letter or email or a sworn statement like a deposition. If the witness denies making the statement, then to impeach the witness the opponent must introduce the prior inconsistent statement through extrinsic evidence (otherwise the witness has not been impeached).
For instance, the witness on the stand absolutely denies making a statement. Another witness may be called for the sole purpose of demonstrating (a) that the statement was made and (b) the prior witness said it. The questioning may go like this if, Mr. Smith, the witness has denied making the statement:
“Mr. Jones, were you present at the crime scene on the night in question?”
“Yes, I was.”
“Were you in a position to hear Mr. Smith speaking with the officers?”
“Did Mr. Smith say the light was green in response to the officers' questioning?”
In the above scenario, the extrinsic evidence of what the other witness heard[vi] offered to demonstrate that the witness has made a different statement about the incident at another time.
The ability to impeach a witness is a trial skill that is perfected over time. It should not be undertaken lightly because a butchered impeachment of a key witness at trial can spectacularly backfire and unintentionally bolster the credibility of that witness. Many cases over the years have been lost by terrible impeachment attempts.
Although the principles of impeachment can be easily learned through studying caselaw and understanding the predicate/foundational questions, impeachment is better understood in practice and requires many years and trials to master. Watching a skillful practioner impeach a witness can be captivating; it is a revered artform when done properly. As with many trial skills, the more trial experience an attorney has, the better the attorney usually is at impeaching a witness. In this regard, there are no substitutes for trial experience and trial preparation.
If you or a loved one has been arrested or has a federal or Florida criminal matter, then do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 for a review of the situation.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
[i] In this sense, witness impeachment is very different from the process outlined in our constitution to remove an elected official from office.
[ii] On the other hand, it is faux pas for a juror to simply disbelieve a witness because of their nationality, religion, or gender. Reasons such as nationality or religion or gender are not to be considered. Also, jurors are not supposed to give witnesses greater believability or credibility because of their given profession like law enforcement officers.
[iii] “At issue” in this sense means simply that the witness’s credibility is completely placed in front of the jury for the jury to make its determination. During deliberations, whether or not a juror believes or disbelieves a witness is entirely up the juror. Jurors are instructed that, “You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.” Instruction 3.9 - Florida Standard Jury Instruction in a Criminal Case.
[v] See §90.614, Fla. Stat. Prior statements of witnesses.—
(1) When a witness is examined concerning the witness’s prior written statement or concerning an oral statement that has been reduced to writing, the court, on motion of the adverse party, shall order the statement to be shown to the witness or its contents disclosed to him or her.
(2) Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible. This subsection is not applicable to admissions of a party-opponent as defined in s. 90.803(18).
History.—s. 1, ch. 76-237; s. 1, ch. 77-77; ss. 17, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 492, ch. 95-147.
[vi] The statement is not hearsay for two reasons. First, the “light was green” was not being offered to prove the truth of the matter asserted (or in other words, the statement is not being presented to demonstrate the light was in fact green). Lastly, §90.801(2)(a), Fla. Stat., states, “(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;” because it is being offered to impeach.