Impeaching With Technology
Damaging a witness’s credibility through impeachment is one of the most powerful persuasive tactics at trial. It can literally make or break a case. During cross-examination, a witness’s memory, honesty and sincerity are all tested, and it is the one time the jury sees the witness answer questions for which he has not been prepped. While all trial attorneys know the importance of impeachment, not all know the best way to accomplish it.
We ought to know. As experienced trial technicians, we have collectively worked on hundreds of trials and have worked an equal number of war rooms, helping lawyers all over the country get ready for direct and cross-examination. So, from this perspective, please allow us to offer some practical suggestions and observations.
Let’s start with the end goal in mind. Fundamentally, there are two objectives: (1) to display a contradiction in a way that the jury sees and remembers testimony, and (2) to give yourself ammunition to later use in closing argument.
Displaying the Contradiction
At its simplest, you want to find a way to juxtapose two (or more) witness statements (whether orally or on a screen) and then get the jurors to appreciate there is a contradiction—a contradiction that really matters and is worth the jury remembering. This last point is very important. Not all contradictions are created equal; not all have the same impact. Don’t waste your time on “differences without distinction.” Focusing on things that don’t really matter not only makes you look petty and unduly defensive, but also (and perhaps most important to judges and juries) wastes valuable time.
Generally, there are three ways to display contradictory statements: (1) you can read the statements aloud, (2) if it’s available, you can project a video deposition version of the statement, or (3) you can put a printed version of the statement on the screen for the jury to see as you read it.
Option No. 1: Read the testimony aloud. Having the lawyer read the deposition testimony aloud is the quickest and easiest way to impeach a witness. However, it is also the most fleeting because the jury hears it once from the attorney, and then it’s gone. Reading testimony is most effective for demonstrating short, clear inconsistencies, such as when a witness says “yes” in trial but said “no” at her deposition. The advantage of this method, beyond its simplicity, is that the attorney can read the testimony in her own voice, giving it her own inflection and filling it with drama.
You can also have the witness read the deposition response. There are a couple of clear disadvantages to this. First, it takes extra time. Second, you are never actually sure what tone or inflection the witness may use when reading his or her past words. A feisty witness may read it in a way that is defiant or with an emphasis deliberately designed to downplay the contradiction. Conversely, the witness may read the answer back in an embarrassed or sheepish response. The fact is that you never know, and as such, the risk is generally not worth the potential reward.
However, no matter how dramatic the rendition, reading long passages aloud can be difficult for the jury to follow. Rather than scoring points, the attorney can lose the jury if she is not concise and clear when reading impeachment testimony. Another downside to this option is missing an opportunity to engage the jurors in a visual way. Many jurors are visual learners, and this technique does not take advantage of that.
Option No. 2: Play the deposition video clips. Playing a video deposition is a high-tech alternative to reading it aloud, as it requires significant technology and preparation. The deposition must have been previously videotaped and put through a process called syncing, which matches up video footage to the deposition transcript in order to easily search the video and make clips of it. You should have someone, preferably a trial tech, make the clips, and play them in court. A laptop, projector or monitor, and loudspeaker are needed in order to play the clips for the jury.
There are good reasons for all this preparation. Playing a video deposition engages the jurors visually and aurally, so it is a great way to command their attention in a way that reading or listening cannot. It gives jurors a glimpse into the witness’s demeanor in what is typically a less guarded, less prepared state. We all know that many witnesses who are polite, modest and accommodating on the stand are not that way all the time, especially without hours of preparation and the pressure of a lawsuit. Often a video deposition of them will reveal that difference. Showing jurors the Mr. Hyde side of a Dr. Jekyll witness is a major reason videotaped depositions have become so commonplace.
Additionally, showing a witness’s demeanor when he answers a question can enhance or change the meaning of an answer, even if it doesn’t directly contradict the in-court testimony. If a witness gives an unequivocal “yes!” on the stand, playing the video showing her give a significant pause, a look at her attorney, and then answering “ummmmm...yesssss...” could cast significant doubt in jurors’ minds.
Unfortunately, it is our experience that video is often more powerful as an idea than it is in actual practice. We have had many attorneys excitedly ask us to show them a video clip, based on what they remember was some great-sounding testimony from the deposition. Then, when we play it for them, their response is “Oh, that’s not as good as I thought it would be.”
Video clips do not always play the same way as the transcript reads, or as you remember it. Also, an answer that is concise and punchy on the page may sound and look completely different on video. The witness may say it with pauses, “uhms” and “ahs,” which can cause it to play slowly, with less impact than how it reads. Seeing the witness answer a deposition question can definitely be an advantage, but there are instances where it can be a disadvantage as well. Don’t just assume it will be good; always watch the clip before playing it to get a sense of how the witness comes across on the screen.
Lastly, creating video clips is time consuming, so it is best to choose only clips that will be powerful. Playing a clip is kind of a spectacle, and you want it to have some punch. The last thing an attorney wants is to create a lot of build up, put the jury on the edge of their seats, and then deliver a dud. Hearing crickets chirping in a court room is never a good thing, so being selective in the clips to be played in court is key. Make sure that it looks and sounds good (including audio-visual quality), and most importantly packs a punch.
Option No. 3: Show the transcript on the screen. If the courtroom is equipped with a projector and a document camera (commonly referred to by the brand name ELMO), the physical page of the transcript can be displayed on the screen for all to see. You can also show the electronic version of the transcript if you have a laptop connected to the projector, which offers the added benefit of being able to focus more precisely on the testimony you want. This is particularly powerful if you have a trial tech who can highlight the text and zoom in on the only portion you want the jury to see.
Regardless of whether you use the actual page or electronic version, showing the transcript on the screen is the most versatile option. Unlike simply reading the testimony, or playing a video clip of it, putting the words on a screen gives the jury the ability to read the testimony themselves. For some, this approach engages them more fully, and gives them the chance to better absorb how it relates to the witness’s answer in court. It is more powerful to let a contradictory statement linger on the screen for a moment with key phrases highlighted for more emphasis.
The only drawback to this technique is that it does not give a flavor of how the witness answered the original question. It can be flat, in other words, and there’s no guarantee that the jurors will look at it—it may not be as engaging as playing a video.
The golden rule of trials is that when displaying deposition testimony to impeach a witness, use the method that will deliver rapid and precise results, the most versatility, and the greatest impact. Remember, do not be locked into any one way of doing things because the judge has the final say in the method you use in court. Here is actual trial testimony from a case we worked on to demonstrate this point:
ATTORNEY: “Your honor, I would like to show the excerpt of the video deposition....”
THE COURT: “Why don’t you just read it? Is it something that is going to be shocking that we have to see? It is just an answer. Just read the question and answer.”
Remind the Jury of the Contradiction
Choosing the best way to display a contradiction to the jury is only half the battle. It is equally important to then make sure that the jury remembers not only the contradiction, but why it was important. The most common way to do this is to incorporate the contradiction into your closing argument.
At the conclusion of trial, especially a long one, jurors may not remember all the impeachment moments you want them to, no matter how effectively they were elicited. Create an impeachment folder to record the contradictions you elicit on cross so you can review them prior to closing. You won’t use all of them—closing is for the best of the best, so use only the ones that will have maximum impact. However, having all of this material set aside in one place will make the process of deciding what to use easier, and it will hopefully remind you to always consider using such material in closing.
During your closing argument, you can be matter of fact with how you show the contradiction by showing the trial transcript next to the witness’s deposition transcript. Or you can be creative; our colleagues have created graphics showing witnesses speaking out of both sides of their mouth, charts listing inconsistent testimony, and other visuals that highlight impeachment and cast doubt on credibility.
Most jurisdictions have a jury instruction that says, essentially, if you find a witness to have given false testimony on one issue, you can assume he gave false testimony about other issues. Regardless of how you remind the jury of a contradiction in your closing, make sure to pair this instruction with a witness’s inconsistent statement.
Using the best impeachment method for the situation, picking only the most powerful contradictions to highlight, and then reminding the jury of the contradiction will allow you to cast considerable doubt on a witness’s credibility and bring you closer to the ultimate goal—winning your case.
This article is reprinted with permission from the September 12, 2011 issue of The Recorder. ©The Recorder, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Appeared in The Recorder
September 12, 2011