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Use of Prior Statements, Depositions and Corollary Proceedings: Searing Impeachment and Effective Rehabilitation

FITZPATRICK, CELLA, HARPER & SCINTO30 Rockefeller PlazaNew York, NY

Henry J. Renk, Esq.Partner


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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)


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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)


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IMPEACHMENT


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Any Witness Can Be Impeached (Rule 607)

• Your Own Live Witness

• Adverse Live Witness

• Out-of-Court Declarant


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Timing Of Impeachment

• Your Own Witness: At Any Time

• Adverse Witnesses: Usually on Cross-Examination

• Out-of-Court Declarant: Whenever Credibility Attacked


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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


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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. . .


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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)]


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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


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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


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Impeaching Experts

• Rules 702 – 705

• To question soundness of opinions

• Opportunity to contrast multiple experts


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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


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Practical Considerations Regarding Impeachment

Practice Tip 1:

Don’t overuse the weapon of impeachment

– Use sparingly– Save for key fact(s)


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Practical Considerations Regarding Impeachment (cont.)

Practice Tip 2:

Make sure the trier of fact understands the impeachment


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Practice Tip 3:

Make sure the impeachment is consistent with theory of your case


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Practice Tip 4:

Impeach only when success is probable- i.e., only where inconsistency clear


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Practice Tip 5:

Do not impeach on information favorable to your case


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Practice Tip 6:

Consider the witness your are impeaching


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REHABILITATION


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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))


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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


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Practical Considerations Relating to Rehabilitation

Practice Tip 1:

Hit your own witness’s inconsistent statements head on during direct


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Practical Considerations Relating to Rehabilitation (cont.)

Practice Tip 2:

Rehabilitate only where absolutely necessary


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Practice Tip 3:

On redirect refer to adversary’s raising of inconsistent statement


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Practice Tip 4:

Prepare your witness to adequately handle the bad points


Thank You

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