IMPEACHMENT BY PRIOR NON-STATEMENT
MORE CROSS-EXAMINATION IN THE LINDBERGH KIDNAPPING CASE
Prosecutor David T. Wilentz (left) and Key Witness John F. Condon
The 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 IV unsuccessfully tried to disentangle himself from a loveless marriage to Queen Caroline.
A lesser type of impeachment by prior inconsistent statement is impeachment by prior non-statement. Such impeachment is not as well recognized as impeachment by prior inconsistent statement, nor is it often as effective. A typical impeachment by prior non-statement which I have heard many times goes like this:
Q. You never said that before, did you? A. Nobody ever asked me before.
For impeachment by prior non-statement to be effective, the non-statement should be something which was said in a situation where it would be reasonable to expect that the witness should say it. For example, if a witness has identified a defendant as the perpetrator of a crime. It would be natural to expect that the witness would have identified the defendant in a post-arrest lineup. If law enforcement had confronted the witness with the defendant and asked him to make an identification, and if the witness had not done so, it would seem to cast some doubt on the in-court identification. If, on the other hand, a reporter had stuck a video camera in the face of the witness and asked him to identify the perpetrator, the fact that the witness said nothing is more evidence of the witness’s caution than of any possible mendacity. Let us see how this might play out in an actual trial. We will return to the Lindbergh Kidnapping Case and the testimony of John F. Condon, who had identified Bruno Richard Hauptmann as the mysterious “Cemetery John” to whom he delivered the ransom money.
Q. Did you see any newspaper men while you were there