ABCs of impeachment with prior deposition testimony

Cleopatra Wilson’s infant daughter fell through a screen door from a second-floor apartment onto a cement balcony below, sustaining serious injuries. Wilson sued the landlord for negligence because he failed to repair the screen door.

At trial, Wilson tearfully stares at the jury, testifying that she witnessed her child fall and was unable to prevent it. Plaintiff’s counsel concludes direct examination. The Hon. Anthony Caesar announces the lunch recess, with cross-examination commencing in one hour.

Exiting the courtroom, the landlord, Arnold Tiberius, whines to his lawyer and nephew, Mark Cicero: “I am up the creek. Ms. Wilson makes a great impression. What are you going to do now?”

“You know this is my first trial. You prevailed on me to take this case pro bono to gain experience. I need to be alone to ponder this situation. I’ll see you in the courtroom after lunch.”

Sitting on a bench in a conference room near the courtroom, Cicero’s mind begins to wander. Then it happens. The Deus Ex Machina appears, as if Cicero is watching an ancient Greek tragedy.

Deus reprimands Cicero for not being properly prepared. “For goodness’ sake, Cicero, impeach the woman. Remember the purpose of cross-examination is to advance or defend your case by asking the witness leading questions, which often call for the answer ‘yes’ and give you control over the witness. Impeachment in this context means destroying the credibility of the witness.

“Recall that during deposition, Ms. Wilson testified that when the incident occurred, she was in another room of the house. Thus she could not have seen the incident. Your goal is to expose this inconsistency. Use her prior deposition testimony to impeach her. But do not overdo it. You do not want the jury to have sympathy for Ms. Wilson or think you are overbearing.

“The first step to impeaching Ms. Wilson is having her reaffirm her testimony in her direct examination, which is inconsistent with the prior deposition statement. This establishes the foundation for the impeachment and demonstrates fairness to the witness. Second, present the context in which the prior statement was made, from which the witness cannot escape (she was summoned to her deposition, and testified under oath). The final step is to confront the witness with her prior inconsistent statement.”

Cicero awakes  with renewed enthusiasm. He returns to the courtroom. Here is his cross-examination:

Q:        Ms. Wilson, you testified that you saw the infant fall through the screen door to the ground below?

A:         Yes.

Q:        You recall that you were summoned to appear in my office six months ago for a deposition?

A:         Yes.

Q:        You remember coming to my office with your attorney?

A:         Yes.

Q:        You recall that we met in my conference room?

A:         Yes.

Q:        The testimony was recorded by a court reporter, correct?

A:         Yes.

Q:        Were you under oath?

1. Yes.

Q:        Your testimony was typed up by the court reporter, word for word, and submitted to you to read and correct any mistakes?

A:        Yes.

Q:         Did you read your deposition?

A:         Yes.

Q:        Did you correct any mistakes?

A:         Yes.

Q:         And then you signed your deposition before a notary public?

A:         Yes.

Q:         Ms. Wilson, I am now going to read to you a portion of that signed deposition: “Prior to the accident involving the infant, where were you? / I was in the bedroom looking after my little boy. / When was the last time you saw the infant prior to the accident? / After we had breakfast, she was playing with the other children staying with me, and I went to nurse my baby. / Am I correct in understanding that your testimony is that after breakfast you left the infant with the other children, and that you went into the bedroom to nurse the baby and you did not see the infant until after she had the accident? / Yes.”

1. Now, Ms. Wilson, what I just read was your testimony under oath on April 14, 2014?

A:         I cannot remember what I said at that time, but if what you read is what I said, then yes.

After cross-examination, the case settles. Tiberius treats his nephew to dinner to discuss the next case his uncle is giving him. “This one,” says Cicero, “is not pro bono.” They both laugh.

When impeaching a witness through use of a prior inconsistent oral or written statement, the prior statement must be inconsistent; the inconsistency must relate to a relevant subject; and counsel must disclose the prior statement to opposing counsel upon request and afford the opportunity for explanation or denial by the witness. (See, 2-419(a); 5-613.)

Be aware that the prior statement is usually offered only for its impeachment value, to diminish the credibility of the trial testimony of the witness. But under Rule 5-802.1(a), the witness’ inconsistent deposition testimony may be admissible substantively as well.

And remember, when questioning a witness, it is unethical for counsel to refer to any matter that is not relevant or supported by admissible evidence, under Rule 19-303.4(e). Also, refer to my previous column, “Tips on executing a powerful cross-examination” (Sept. 20, 2019).

Paul Mark Sandler, trial lawyer and author, can be reached at [email protected].