Impeachment

Question 1

If you have the option, should you take a hard or soft approach with a witness you’re going to impeach?

Answer 1

Soft.

Question 2

What analogy can we use to describe a 3-step approach to impeachment?

Answer 2

A traffic stop.

Question 3

Break down the traffic stop analogy (3 steps):

Answer 3

1. Find a positive confrontation - “do you know why I pulled you over today?”
2. Find a morally acceptable reason for the underlying conduct. Allow the person to save face.
3. Get them to sign a confession.

Question 4

What are the four big categories of impeachments?

Answer 4

1. Prior inconsistent statement
2. Direct credibility attacks
3. Omissions
4. Probabilities

Question 5

What are the two main ways to do prior inconsistent statement impeachments?

Answer 5

1. CCC
2. Single-Sentence

Question 6

What does CCC stand for?

Answer 6

1. Commit
2. Credit
3. Confront

Question 7

Explain “commit.”

Answer 7

Commit the witness to the testimony they made on direct.

Question 8

Explain “credit.”

Answer 8

Credit how the circumstances of the prior statement make the prior statement more reliable.

Question 9

Explain “confront.”

Answer 9

Confront the witness with the prior statement.

Question 10

What are the two things that could happen as a result of the confrontation? What do you do in either event?

Answer 10

The witness can either admit the contradiction or deny it. If they admit it, your job is done. If they deny it, you can introduce non-collateral extrinsic evidence to prove the prior inconsistent statement.

Question 11

When do you use the single-sentence method?

Answer 11

When there’s an unquestionable contradiction that you don’t want or need to spend that much time on.

Question 12

What two kinds of witnesses do you often use single-sentence with?

Answer 12

Doctors and cops.

Question 13

What are the two kinds of direct credibility attacks?

Answer 13

1. Case specific
2. Character evidence

Question 14

What are 6 examples of case specific direct credibility attacks?

Answer 14

1. Bias for one party
2. Bias against another party
3. Relationship between witness and a party
4. Witness has an interest in the outcome
5. Witness only testifying for direct personal benefit
6. Witness shifting blame to avoid the spotlight

Question 15

What are 5 examples of character evidence?

Answer 15

1. Prior convictions
2. Prior bad acts
3. Reputation evidence
4. Character for untruthfulness
5. Witness is self-important

Question 16

What are the two main types of omissions you want to elicit on impeachment?

Answer 16

1. Failure to admit a fact on direct
2. Failure to act according to a duty

Question 17

What is the 3-step process for impeaching by way of an omission?

Answer 17

1. Show the person being impeached knew the need to be complete when giving earlier statement, either because of pre-existing duty or the setting in which the statement was given
2. There was a place in the earlier statement where critical and heretofore unmentioned fact(s) should’ve been raised
3. Make the witness agree that in this case, at the time of the making of this document, report, or at this hearing, the matters were known and were important

Question 18

What broader concept/technique helps us develop impeachments based on probability?

Answer 18

Psychodrama.

Question 19

How does psychodrama help?

Answer 19

Putting yourself in the witness’s role. Think of what you would say and do.

What did the witness say or do - or NOT say or do - that seems to contradict what you would do if you were in their shoes?

Question 20

Because impeachments by probability are relatively risky, you should always make sure they advance your ____.

Answer 20

Theme.

Question 21

What is a safe haven?

Answer 21

A time worn excuse used by a witness to avoid arriving at the factual destination the lawyer is driving toward in a given chapter.

Question 22

How do you block safe havens?

Answer 22

Ask questions designed to emphasize the importance of not making the mistake they made and how there was no excuse for having made the mistake.