Impeachment

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IMPEACHMENT BY PRIOR NON-STATEMENT

MORE CROSS-EXAMINATION IN THE LINDBERGH KIDNAPPING CASEProsecutor David T. Wilentz (left) and Key Witness John F. CondonThe law has long recognized the propriety of impeachment by prior inconsistent statement. The first description of the proper method for such impeachment was given in the 1820 divorce case tried in the House of Lords, where King George [...]

HOW NOT TO IMPEACH BY PRIOR INCONSISTENT STATEMENT

Cross-Examination in the Lindbergh Kidnapping CaseOn more than one occasion during the cross-examination of John F. Condon, the star witness in the Lindbergh Kidnapping Case, the defense attempted to get Condon to admit to prior inconsistent statements. Condon had described his meeting with and delivery of the ransom money to the mysterious figure “Cemetery John,” [...]

THE THREE I’S OF IMPEACHMENT CROSS-EXAMINATION

It may be somewhat counterintuitive, but the impeachment of a witness is not the primary goal of cross-examination. The primary goal of cross-examination is to persuade the jury to endorse your case theory. Impeaching opposing witnesses contributes to proving your case theory only indirectly. It tends to encourage the finder-of-fact to reject the opposing side’s [...]

HOW NOT TO IMPEACH WITH DOCUMENTS

I (Bob Dekle) recently had the privilege of watching a very competent prosecutor conduct a post-conviction evidentiary hearing. The issue was mental competence, and the state’s expert had testified quite convincingly on direct examination. The defense attorney arose and began a performance which can only be characterized as a case study in how not to [...]

CROSS-EXAMINER’S DEMEANOR AND CONTROL

Through a Law Student’s EyesNo matter how much you stress certain principles of cross-examination in a law school trial advocacy class, the lessons don’t stick the way seeing them come live in a courtroom does. Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report [...]

LINCOLN’S “MISSOURI METHOD” CROSS-EXAMNATION

Lincoln’s Almanac TrialAlmost every practicing trial lawyer in America has heard the story of how Abraham Lincoln broke down a witness’s testimony by use of an almanac. The witness Charles Allen testified he saw Duff Armstrong murder Preston Metzker by the light of a moon high overhead. Lincoln firmly committed him to this statement by [...]

2ND ROOKIE MISTAKE OF CROSS-EXAMINATION: BEING WITHOUT PROOF

You Know the Cross-Examiner is a Rookie When . . .A lawyer should never attempt to impeach a witness with a prior inconsistent statement if the prior statement cannot be proven. Some lawyers ask about a prior statement without proof of the prior statement in the hopes that either the witness will admit it or, [...]

“AHA” MOMENT AND CROSS-EXAMINATION

Closing the Loop of Cross in ClosingCross-examination designed to expose the defect in the witness’s testimony may not be evident to the jurors during the cross. Rather, the loop may be closed in closing argument when you unveil the flaw and the jurors comprehend the full impact of the examination. Michael Tiger describes the effect [...]

CROSS-EXAMINATION ROOKIE MISTAKE #1: PITTING

Don’t Ruin Your Cross-ExaminationCross-examination intended to compel the witness to contradict another witness by calling the other witness a liar is called “pitting,” and it is a rookie mistake and reversible error in this nation. Michael E. Tigar noted notes that this isn’t true elsewhere around the world: “The rules limit your ability to ask [...]

LINCOLN AND ASSISTED SUICIDE

Cross of the Exaggerating Witness There’s an old saying that cross-examination is more often suicidal than homicidal. It is meant as a caution to lawyers to be sure that they don’t impale themselves on their own sword, but it applies equally to a witness. When a witness overstates, embellishes, or otherwise plays fast and loose [...]