Use of Prior Statements, Depositions and Corollary Proceedings: Searing Impeachment and Effective Rehabilitation FITZPATRICK, CELLA, HARPER & SCINTO 30 Rockefeller Plaza New York, NY Henry J. Renk, Esq. Partner

2 Impeachment of a Witness “To call into question the veracity of a witness, by means of evidence adduced for such purpose, or the adducing of proof that a witness is unworthy of belief.” Black’s Law Dictionary (6th ed. 1990)

3 Rehabilitation of a Witness “After cross examination, a witness whose credibility has suffered may be examined again (redirect examination) to improve his standing with the trier of fact in matters covered on cross examination.” Black’s Law Dictionary (6th ed. 1990)

4 IMPEACHMENT

5 Any Witness Can Be Impeached (Rule 607) Your Own Live Witness Adverse Live Witness Out-of-Court Declarant

6 Timing Of Impeachment Your Own Witness: At Any Time Adverse Witnesses: Usually on Cross-Examination Out-of-Court Declarant: Whenever Credibility Attacked

7 Impeachment Techniques 1)Attacking witnesses’s character e.g., through prior bad acts or prior convictions 2)Demonstrating Bias e.g., what motivation does the witness have? 3)Demonstrating Sensory Deficiencies e.g., could they really see what happened? 4) Use of Prior Inconsistent Statements e.g., previous statements that now contradict their trial testimony

8 Types of Prior Statements for Use in Impeachment Testimony: Statements Under Oath: Statements Not Under Oath: Litigation Documents: –Deposition or Trial –U.S. or Foreign Litigation –P.T.O. Testimony –Affidavits or Declarations –P.T.O. Sworn Papers –Internal Company Records –Publications by Witnesses –P.T.O. Papers –Discovery Responses, Expert Reports, Etc...

9 Rules of Evidence - Impeaching With Prior Inconsistent Statements Rule 613: Prior Statements of Witnesses Relaxes common-law foundation requirements Show statement to opposing counsel upon request When proving prior statement through extrinsic evidence: –Witness must be given chance to explain/deny –N/A to admission by party opponent [Rule 613(b)]

10 Rules of Evidence - Impeaching With Prior Inconsistent Statements (cont.) FRE 806: Attacking and Supporting Credibility of Declarant Allows for impeachment (or rehabilitation) using out-of- court statement against declarant

11 Impeachment Technique Using Prior Inconsistent Statement Step 1 : Recommit Witness to His/Her Direct Testimony Step 2 : Validate the Prior Statement e.g., Establish when/how prior statement was made Authenticate prior statement If prior statement is more valuable demonstrate that it is the more accurate of the two statements. Step 3 :Confront the Witness with the Prior Statement Leave no room for evasion or argument by witness re: statement inconsistencies

12 Impeaching Experts Rules 702 – 705 To question soundness of opinions Opportunity to contrast multiple experts

13 Impeaching Out-of-Court Declarant Only When Statement Offered for Its Truth Can Use Inconsistent Statement Made At Any Time (vs. Requirement of Prior Inconsistency for Live Witness) Inconsistency Must be Independently Admissible

14 Practical Considerations Regarding Impeachment Practice Tip 1: Don’t overuse the weapon of impeachment –Use sparingly –Save for key fact(s)

15 Practical Considerations Regarding Impeachment (cont.) Practice Tip 2: Make sure the trier of fact understands the impeachment

16 Practical Considerations Regarding Impeachment (cont.) Practice Tip 3: Make sure the impeachment is consistent with theory of your case

17 Practical Considerations Regarding Impeachment (cont.) Practice Tip 4: Impeach only when success is probable - i.e., only where inconsistency clear

18 Practical Considerations Regarding Impeachment (cont.) Practice Tip 5: Do not impeach on information favorable to your case

19 Practical Considerations Regarding Impeachment (cont.) Practice Tip 6: Consider the witness your are impeaching

20 REHABILITATION

21 Rules of Evidence Relating to Rehabilitation Using Prior Statements FRE 801(d)(1)(B): Prior consistent statement admissible, but only: 1)After credibility of witness has been attacked 2)To rebut express or implied charge of recent fabrication, improper influence, or bad motive. 3)Prior statement must have been made before corrupting influence or event was present (See, Tome v. United States, 513 U.S. 150 (1995))

22 Rules of Evidence Relating to Rehabilitation Using Prior Statements (cont.) FRE 806: Attacking and Supporting Credibility of Declarant Declarant’s statement admitted in evidence Declarant’s credibility attacked

23 Practical Considerations Relating to Rehabilitation Practice Tip 1: Hit your own witness’s inconsistent statements head on during direct

24 Practical Considerations Relating to Rehabilitation (cont.) Practice Tip 2: Rehabilitate only where absolutely necessary

25 Practical Considerations Relating to Rehabilitation (cont.) Practice Tip 3: On redirect refer to adversary’s raising of inconsistent statement

26 Practical Considerations Relating to Rehabilitation (cont.) Practice Tip 4: Prepare your witness to adequately handle the bad points

Thank You