If a witness testifies at trial, there's a chance to impeach that witness. In other words, a witness's testimony can be challenged for truthfulness. Either side can impeach a witness, even their own. Impeachment can occur on direct examination or cross-examination. There are different rules for impeaching an accused who takes the stand as a witness and all other witnesses. This article deals with the impeachment of witnesses other than the accused.

Ways to Impeach a Witness

The most frequent ways to impeach a witness is through the use of their prior inconsistent statements or criminal records. Other methods of impeachment include showing that a witness is biased in favor of one side over the other because of a family relationship, financial interest or other motivation. A witness can always be impeached by showing that they were drunk or on drugs at the time of the incident.

Prior Inconsistent Statements

A prior inconsistent statement is the most common type of impeachment - the "gotcha" moment at trial. The purpose of impeaching with a prior inconsistency is to show that a witness made conflicting statements about a material issue in the case. First, it casts doubt on the truthfulness of their trial testimony. Then, because the witness told two stories, one of which is untrue, it suggests that the witness has a general tendency to lie.

Not every inconsistency in a witness's testimony is a source of impeachment. A witness can simply be confused, nervous or forgetful. Depending on the nature and seriousness of the inconsistency, a witness can merely be mistaken or deliberately lying. A witness who deliberately lies at trial commits the crime of perjury.

There are other inconsistencies that can be impeached besides prior statements. For example, a witness who failed to call the police right away can be impeached for an inconsistent action. The inference being that a witness who doesn't immediately call the police is unreliable. Another example is a witness who testifies to a fact that they never told the police or anyone. That's impeachable as an inconsistent omission. In other words, if something happened, why didn't the witness tell somebody before testifying to it at trial? As such, the suggestion is that the witness's testimony isn't believable.

Criminal Records

The idea behind impeachment based on a witness's prior criminal record is that criminals are less trustworthy than other witnesses. At the same time, just because someone has a criminal record, it doesn't mean that their testimony isn't truthful. Although laws vary from state to state about using a witness's criminal record for impeachment, there are rules that generally apply:

  • Crimes involving dishonesty - A conviction for fraud, embezzlement, forgery or any crime that involves dishonesty or a lack of truthfulness can always be used to impeach a witness
  • Other felony convictions - A conviction punishable by death or more than one year in prison can be used for impeachment unless it's unfairly prejudicial
  • Expunged crimes - If a witness's criminal record has been expunged, it can't be used for impeachment
  • Juvenile records - A juvenile conviction may be used to attack a witness's credibility as long as the judge finds that it's important to the jury's decision

In some cases, if there's a question about whether a witness's criminal record can be used, the trial judge will balance the usefulness of the record for impeachment against its level of prejudice. If a witness's conviction is more harmful than helpful to the jury's decision, a judge probably won't allow it to be used for impeaching. A balancing test will also be used if a conviction is more than 10 years old. Typically, the name of the crime, the date and place of the conviction are disclosed. However, a detailed description of the criminal act isn't usually allowed.

Impeachment makes a difference in the way a jury views the witness. Effective impeachment basically discredits the witness as a reliable source of information, shows a lack of credibility and can influence the jury's final decision.

Questions for Your Attorney

  • Is my medical condition or medical records something that I can be impeached with?
  • What if I can't recall something during my testimony?
  • If the other side impeaches me, will I have a chance to explain things?

Tagged as: Criminal Law, witness impeachment, criminal lawyer