7) Meaning of Proof and Standard of Proof :
Proved: S.3 of IEA defines proved. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
A fact is proved: Matters + Belief. Now the question what is Matters?
The term matters: Evidence and other facts.
Evidence (S.3): Oral or documentary statement made on oath before court or any public authority. All facts can be proved by oral evidence except the contents of a document. Evidence means and includes— (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence : S.59, 60, 63(5), 91 Explanation, 92-Proviso 2 & 3, 119 and S.144 Explanation deal with oral evidence. (2) all documents including electronic records produced for the inspection of the Court such documents are called documentary evidence: S.61, 62, 65, 91, 92 &145deal with documentary evidence.
The following are not evidence as they are not on oath:
a) A confession or statement of the accused (S.239, 251, 313, 164 Cr.P.C).
b) Demeanor of witness (S.280 Cr.P.C).
c) Local investigation or inspection (S.310Cr.P.C).
d) Facts judicially noticeably without proof (S.56).
e) Material objects (Criminal rules of Practise).
Fact: S.3 says Fact means and includes:- (1) Anything, state of things, or relation of things, capable of being perceived by senses. (2) Any mental condition of which any person is conscious. Ex: (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) Any mental condition of which any person is conscious.
Fact in issue: S.3 of IEA defines fact in issue.
Fact in issue: Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessary follows. It means matter in controversy.
8) Presumptions. Presumption: Presumption is an inference drawn by the court based on certain proved facts. The following table clearly explains the same. May presumptions are indicated in S.86 to 88, 90 & 114. Shall presumptions are indicated in S.79 to 85, 89 & 105. Conclusive proof is contained in S.41, 112 & 113. It’s a short cut to Proof.
TECHNIQUES FOR EFFECTIVE EXAMIANTION-IN-CHIEF (DIRECT EXAMINATION):
Direct Examinations should let the witness be the centre of attention. A witness will be believed and remembered because of the manner and content of his testimony, not because the questions asked are brilliant. Witness credibility is determined by who witness is, what he says and how he says it. If the judge remember one of your witness as being particularly convincing, but are not sure who conducted the direct examination, you have done your job well. In this paper we will discuss the components of effective examinations and review the kinds of direct examinations that are repeatedly encountered in civil and criminal trials.
Elements: A good direct examiner is like the director of a film crew. Although limited by the script, the director can inject his own approach and perspective into the production.
The elements are like this:
1) Keep it simple 2) Organise logically 3) Use introductory and transition questions 4) Introduce witness and develop background 5) Set the scene 6) Recreate the action 7) Use non leading questions 6) Have the witness explain 9) Volunteer weakness 10) Use exhibits to highlight and summarise facts
1) Keep it simple: Judge never heard the testimony before. Any person’s ability to absorb and retain oral information is limited. Attention spans drop significantly after 15 to 20 minutes, so any examination should be short and focused. Determine in advance what the critical part of the witness testimony is get to it quickly, develop it sufficiently, and then stop. In short, keep your direct examination simple.
2) Organize logically: Once you have determined the key elements of the direct examination, you must organise those points in a logical order. It is observed that Judges, like other people, are best able to comprehend a series of events or other information if they are presented in the same chronological order as they really occurred. Judges are used to hearing stories presented chronologically, so they will be more likely to grasp and retain evidence a trial of a story is presented in this way. With occurrence witnesses in personal injury and criminal case, a logical and most frequently used sequence is: a) personal background b) Scene description e) action description 4) exhibits to highlight and repeat 5) damages description(if applicable)
3) Use introductory and transition questions: These questions orient judges to expect what and expect what not. Transition questions are also useful devices: they operate like sign posts during direct examination. When the witness will testify on several topics, transition questions let the judges know when the questioning on one topic is finished and the testimony on the next topic is to begin. They operate like chapter heading in a book, making the direct examination much easier to follow and serving periodically renew the judges’ interest in the testimony.
4) Introduce witness and develop background: Whenever a witness takes stands, three questions will go through in the judge’s mind. “Who is she?” “Why is she here?” “Why should I believe her”. So, it is your duty to let the judge know why the witness is here? Why the witness should be believed?. The first two purposes, showing who the witness is and why she is here, can be quickly disclosed. The third purpose, showing why the witness should be believed, can also be efficiently done. The judge wants to know a little bit about the witness so that they have an initial basis for assessing credibility. Judges feel comfortable with people that are like themselves.
The few simple questions you have shown that the witness is married, has children is a long time resident of the community holds a responsible job; all facts that show the witness is a mature, responsible person, much like the members of the judge.
Judges also like to get a “feel” for the witness. Hence, consider having the witness talk about something, such as her job or family, which gets to express herself. While perhaps not highly relevant to witness credibility, most courts will allow such additional background development, if it is efficiently done and the witness is a party or key witness.
Simple background questions should be asked of all witness, because credibility is always an issue. Whether the background should be developed further depends on who the witness is and how important the witness testimony is. The plaintiff in a personal injury case, the defendant in a criminal case, and express such as police officers should have appropriate additional background facts developed. Key witnesses need to be three-dimensional, so that the judge does can get a real sense of who they are. It must be remembered that nonverbal communication also has a role to play. That communication begins the moment the witness first enters the court room and continues until the witness leaves the court room. Frequently these nonverbal clues are controlling and will dominate over the actual testimony. Judges quickly have gut reactions about people, and then look to facts to justify their reactions.
If judges assess credibility with their eyes as much as their ears, what can you do about it? Physical attractiveness is an important component of trustworthiness. While we can’t change the physical characteristics of witness, we can influence their attire and nonverbal conduct in the court room. First, decide what the witness should wear in court. The clothes should make the witness comfortable and give judge the sense that the witness I taking his appearance in court seriously. Second, rehearse how the witness will enter court room, how he will walk to the witness stand, when and how he will take the oath, how he will sit in the witness chair, and how he should maintain eye contact.
5) Set the scene: Judges are accustomed to getting information in the 5 to 15 second “sound bites” they see on the evening news. Go from the general to the specific, much like a zoom, lens will begin with a panoramic view, then zoom in on the details important to the story. This makes it easy for the judges to translate the oral testimony into a mental image of the scene.
Just give general description of the location and of the lighting conditions that existed at the time. More detailed elaboration is unnecessary. Let the cross examiner ask exactly how wide the street was, exactly how the witness was from that location of the accident and how far each street light was from the accident. More detailed elaboration is unnecessary. Let the cross-examiner ask exactly all those minute details.
Many scene descriptions use compass directions-north, south, east, west- to orient judges to the location. This usually works well when the scene involves streets on open areas. Another common way to describe scenes is from the point of view of the witness, using the witness orientation. This approach gets the judge to see the scene from a particular perspective.
6) Recreate the action: Effective direct examination of occurrence witness recreate the action so that the judge’s become involved and experience the event through the witness. Doing this effectively is difficult and takes time to organise. There are four basic considerations involved in recreating the action: point of view, pace, sensory language, and present tense. Each needs to be considered whenever you are preparing the direct examination of an occurrence witness.
a) Point of view: the first task is to organise the direct exam so that the judge sees the action from an advantageous point of view. This will usually be through the eye of the witness. This kind of testimony puts the judge in the back seat of the cat, seeing what the plaintiff sees, and is an effective way to get the judges to picture the attention from your point of view.
b) Pace: Judges also want to get a feel of what happened and this is influenced by pace. Pace refers to controlling the speed of the examination. This is particularly important where occurrence testimony is concerned. Pace, fortunately, can be easily controlled by the examiner, simply by eliciting the witness testimony in small segments at the most advantageous rate.
c) Sensory language: Language needs to be simple, so that judges can understand. Language needs to be sensory, so that it becomes vivid and memorable for the judges. Thus you must have a trial vocabulary. First, keeping direct examinations simple involves choosing simple words and phrases for your questions and training witnesses to use simple words and phrases in answering your questions. Psychological studies demonstrated that how questions are phrased has a significant impact on how it is answered. Word choice, that is affects the answer.
d) Present tense: Using present tense in both the lawyers’ questions and the witness answers is an effective technique to recreate a dramatic event. It makes the judge to get emotionally involved in the story.
7) Use non leading questions
6) Have the witness explain
9) Volunteer weakness
10) Use exhibits to highlight and summarise facts.
CROSS EXAMINATION -TECHNIQUES:
Cross examination has a specific purpose. Cross examiner must have his own theory of the case. Accordingly, he should plan and organize. In order done effective cross through preparation is indispensable. The first point cross-examiner shall know is there any necessity cross examine the witness. In order to know make such decision the following questions are helpful. They are: 1) Has the witness hurt your house? 2) Is the witness important? 3) Was the witness testimony credible? 4) Did the witness give less than expected on direct? 5) What are your realistic expectations on cross? 6) What risks do you need to take?
Once you decide to conduct cross examine the witness take note the purposes and order of cross examination: There two basic purposes of cross-examination:
a) Eliciting favourable testimony. This involves getting the witness to admit those facts that support your case in chief and are consistent with your theory of the case, themes and labels.
b) Conducting a destructive cross (the second purpose). This involves asking the kinds of questions that will discredit the witness or his testimony so that the judge will minimize or even disregard them.
Understanding these two basic, broad purposes, and their order of use, is essential to conducting effective cross-examination. While you may utilize only one of the applications with some witness, you should always consider eliciting favourable testimony from the witness before you attempt a destructive cross examination.
Why this order? At the end of the direct examination, most witnesses will have resulted in a plausible fashion and their credibility will be high. This is a time to extract favourable admissions and information from the witness, since the witness credibility will enhance the impact of the admissions. Such admissions will have less impact, and be less likely to occur, if you have previously attacked the witness.
Should you always undertake a destructive cross examination? Not necessarily. Remember that a destructive cross examination is one that attempts to discredit a witness or his testimony so that the judge will minimize or even disregard what the witness has stated. If you have been successful in obtaining significant admissions, you may well decide to omit any discrediting cross at all. Remember that trials make it difficult to have your cake and eat it too. Judges will be understandably skeptical if you argue that witness favourable testimony should be believed, while that part of the testimony you attacked should be disbelieved. Accordingly, where the witness admissions have been helpful, thereafter conducting a destructive cross-examination will only undermine the admissions. Discretion is often the better part of valor in such situations.
Elements of cross examination:
1) Structure: Successful cross-examinations follow a preconceived structure that gives the examination a logical and persuasive order. That structure is based principally on the following considerations.
a) Have you cross-examination establish a few basic points as possible: you cross should preferably have no more than three or four points that support your theory of the case, theme and label. Why no more? Always remember that judge finite capacity to retain information. The judge receives facts aurally, and it often receives them only once. Attempting too much on cross-examination creates two problems: the impact of your strongest points will be diluted and the less significant points will be forgotten entirely by the time the judge deliberate on its verdict. Therefore, stick with the strongest ammunition and avoid the peripheral material. Always ask yourself: what will I say about this witness during closing arguments? Is this point one I will discuss during closing arguments? If the point is not important enough to make during closing arguments, it is probably not worth raising during the cross-examination either.
b) Make your strongest points at the beginning and the end of your cross examination: Open with a flourish and end with a bang. Why? Again, the nature of the judge dictates this approach. Judge remembers best what they hear first and last. These are the principles of primary and recency. Their first and last impressions made during the cross-examination will be the lasting ones. Try to use your themes and labels at the beginning and end of the cross-examination.
c) Vary the order of your topics: Successful cross-examinations are sometimes based on indirection-the ability to establish points without the witness perceiving your purpose or becoming aware of the point until it has been established. Varying the order of your topics from the direct examination will make it less likely that the witness will anticipate the purpose of a given line of questions. After all, the direct examination was organized to be clear and persuasive. Why automatically adopt that organization for your cross-examination? On the other hand, constantly jumping from point to point is ineffective, since usually the judge and you become more confused than the witness.
d) Don’t repeat the direct examination: This may be the most commonly violated maxim of good cross-examinations. Many are the lawyers whose standard approach is to have the witness “tell it again”, in the groundless hope that the witness testimony will somehow fall apart during the second telling. This approach almost invariably fails. It has merit only in the rare situations where the witness testimony appears memorized or where major parts of the direct examination support your theory of the case.
2) Rules for cross-examination: Your chances of conducting successful cross-examinations improve when you follow certain rules that have withstood the test of time. While, these, like any other rules, can be ignored or violated in appropriate situations, following them is usually the safest approach. These rules include the following.
a) Start and end crisply: The first minute sends messages! When you start your cross-examination, the judge expects you to do something noteworthy. If you don’t the judge will quickly conclude that your cross-examination will add nothing to what they already learned from the witness. Accordingly, don’t start your cross with useless introductory comments like “I just have a few questions I need to ask you” or “Mr.Johnson, I’d like to go over part of your earlier testimony”. This does nothing for the judge other than to tell them you have nothing part of your earlier testimony.” This does nothing for the judge other than tell him you have nothing important say. Start immediately with something that grabs the judge attention. A first question like “Mr.Johnson, you’re a convicted felon, aren’t you?” tells the judge that you’re going to be interesting and informative. The same psychology applies to your last point: Make it an important point, make it interesting, and make it crisp.
b) Know the probable answer to your questions before you ask the questions: Play it safe: Many witness will seize every opportunity to hurt you. Cross-examination is not a discovery deposition. This is not a time to fish for interesting information or satisfy your curiosity. Its sole purpose is to elicit favourable facts or minimize the impact of the direct testimony. Accordingly, your cross-examination should tread on safe ground. Ask questions that you know the witness should answer a certain way or because he might not give exactly the expected answer, questions that you know you can handle his response to.
c) Listen to the witness answers: This may appear to state the obvious, but the fact remains that lawyers often forget to do just that. Witnesses constantly surprise you. Unless you are watching and listening, you will miss nuances and gradations in the witness testimony. Reluctance and hesitation in answering will be overlooked. Don’t bury your face in your notes, worrying about the next questions while the witness is answering the last one. Organize your notes into cross examination topics, and then formulate your actual questions spontaneously. This way you can watch the witness as he listens and answers, gauge the witness reaction to your question and the tone of his answer and intelligently formulate follow-up questions.
d) Don’t argue with the witness: Cross can be frustrating. The answers will often not be to your liking. The temptation, therefore, to argue with the witness is always present. Resist the temptation. Arguing is legally improper. It is also unprofessional. In terms of maintain your credibility with the judge, it is a disaster. Lawyers who succumb to this weakness are usually those who conduct cross-examinations like fishing expeditions. Repeatedly getting bad answers, they begin to argue with the witness. The possibility of this happening can be substantially reduced simply by carefully organizing and structuring your cross examination in advance.
e) Don’t ask the witness to explain: Open-ended questions are inappropriate on cross. Hostile witnesses are always looking for an opening to slip in damaging answer. Questions that ask “what,” “how”, or “why” or elicit explanations of any kind invite disaster. These kinds of questions are best avoided altogether on cross. They’re the kind of questions the redirect examinations should ask.
f) Don’t ask the one-question-too-many: The traditional approach to cross was to make all your points during the cross itself. The modern approach has an entirely different emphasis and level of subtlety. You ask only enough questions on cross to establish the points you intend to make during closing argument. This means that you will avoid asking the last questions that explicitly drives home your point. Instead, your cross will merely suggest the point. During the closing argument you will rhetorically pose that last question and answer it the way you want it answered, when the witness is not a around to give you a bad answer.
g) Stop when finished: Cross continuously tempts you to keep going on. There is always one more question you could ask. There is always one more point that you might be able to establish. Resist this nature temptation to fish for additional points. It’s dangerous. Moreover, the judge has limited attention span can maintain a high level of concentration for only 15 to 20 minutes. Stick with your game plan and get your last big point before the judge gets restless or bored. Make your point, stop, and sit down.
Questioning style: Cross requires a different attitude and verbal approach by the lawyer from those on direct examination. Effective direct examination normally requires you to assume a secondary role, remain in the background and ask open end ended questions that let the witness dominate the judge attention. Cross, in terms of the lawyer’s position and manner of questioning is the mirror opposite direct examinations. Accordingly, you should follow certain rules when conducting cross.
a) Make your questions leading: This is an oft-violated rule. Questions like “what’s the next thing you did?” and “describe what the intersection look like” have little place on cross, particularly where important testimony is involved. A leading questions is one that suggests the answer and is the basic form you should use for cross. Inexperienced trial lawyers usually make two interrelated mistakes: they lead too much on direct and too little on cross. The best way to cure such mistakes is to consciously avoid them before they become an irreversible habit.
These are all obviously leading questions. Another approach is to make the question leading, not through your language, but through your intonation and attitude, which make it obvious to the witness what answers you are expecting. The advantage of this approach is that the questions are simpler, making it affective when you want to establish a series of related points.
The only time you can safely ignore the rule is when the answer is not important – you know that the witness must give a certain answer because he has been previously committed to that answer by prior statements – or because any other answer will defy common sense or other evidence. You can then safely ask a non leading question, because you can effectively impeach any unexpected answer.
Ask non leading question can break up the monotony of constantly leading questions. However, whenever you get near important, contested matters, the leading form is the only safe questioning method.
b) Make a statement of fact and have witness agree to it: During cross you are the person who should make the principal assertions and statements of facts. The witness should simply be asked to agree with each of your statements. In a sense, you testify, the witness ratifies. By phrasing your questions narrowly, asking only one specific fact in each question, you should be able to get “yes,” “no”, or short answers to each question. Keep in mind that whenever the witness is given the chance to give a long, self-serving answer, he will.
c) Use short, clear questions, bit by bit: Cross is in part the art of slowly making mountains out of mole hills. Don’t make your big points is one question. Lead up to ach point with a series of short, precise questions that establish each point bit by bit.
Notice that by a series of interrelated, progressive questions you have demonstrated that the witness was not expecting a crash and really didn’t notice anything until after hearing the sound of the crash. You have made you by indirection, notice that what would be a last question. “so you didn’t really see the pedestrian before the crash, did you?” was not asked. The witn4sses will invariably say “yes” or something even more damaging. As noted above, that is the question you want to save and answer in your closing argument.
d) Keep control over the witness: Control comes in large part by asking precisely phrased leading questions that never give the witness an opening to hurt you. But is has another facet. Control means forcing the witness to obey evidentiary rules, particularly those involving non responsive answers. When the witness contino9usly gives such answers, a common approach is to move to strike the answer and if warranted, ask the court to admonish the witness.
e) Project a confident, take-charge attitude: On cross, you should be the center of attention. Consistent with proper procedure and good taste, act the role. Ask questions in a voice and manner that projects confidence, both to the judge and the witness. Let the judge your attitude about the facts. On direct examination, how a witness answers is as important as the answer itself. On cross, how you ask a question is a important as the question itself. Projecting humor, incredulity and sarcasm are all a proper part of cross. Use them in appropriate situations. Above all, make sure the witness understands and feels your attitude about the facts of the case and your expectations in you’re questioning. Project that attitude usually has a significant impact in obtaining the answers you want.
Projecting confidence, however, is different from being unnecessarily hard on the witness. Cross doesn’t require examining crossly. The judge will react negatively if you sound and act tough on the witness without a good reason for your attitude.
f) Be a good actor: Every Cross examiner, no matter how experienced careful and talented, will get bad answers to questions. When this happens, a good poker face is invaluable. Judges when they hear what appears to be a devastating answer will look around the court room and gauge the reaction of the judge, lawyers and spectators. When the witness does drop a bomb, don’t react to it. Simply go on as if nothing really happened. If you refuse to make anyting of the answer, you have minimized its impact, and the judge may well conclude that the answer was no as damaging as it first appeared to be.
g) Use a natural style: While trying cases requires you to conform your conduct as a lawyer to certain rules, there is a great deal of latitude that permits the personalities of the lawyers to come out. As in other phases of trial work, there are many styles with which you can conduct cross. However, there is only one solid rule you should follow: Use the style that is natural to you, that you feel comfortable with. Judges will immediately spot any lawyer who is attempting to copy someone else’s style. The style that is natural for you will invariably be the one that is the most effective as well.
Eliciting favourable testimony: The Cross examiner’s primary purpose is to elicit facts from the witness that will support your case in chief and be consistent with your theory of the case, themes and labels. This should be done first, because the witness at the beginning of the cross will be minimally adverse. If you are pleasant and courteous to the witness, your chances of obtaining favourable testimony will be maxmised. The witness will relax and be much more likely to cooperate with you in achieving your purposes.
What constitutes favourable testimony?
Ans: Here a little imagination and ingenuity is useful. You must keep your theory of the case in mind, because the purpose of this phrase of the cross is to obtain facts which support your theory or contradict theirs. Consider the following possibilities:
Did part of the direct examination help?
Ans: Usually the witness will testify to a number of facts that are either neutral or are helpful to your position. In those circumstances, it is useful to have the witness repeat your position. In those circumstances, it is useful to have the witness repeat the favourable facts, because the judge is more likely to retain the information when you draw it out during the cross.
Can the witness corroborate your case?
Ans: Often it is advantageous to determine if the witness can corroborate aspects of your case, even if those aspects were not directly covered during the direct examination. Review the central parts of your case and determine if the witness can testify to any facts that support it. Such admissions are always more impressive when obtained through the other side witness.
What must the witness admit?
Ans: Review what the witness prior statements are as well as statements of your opponents other witness. Where these prior statements contain favourable information, it is safe to ask the witness about the information. If the witness contradicts his own prior statement, he can be effectively impeached. If he contradicts another of your opponent’s witness, you have established a contradiction in your opponent’s case. The same procedure can be used with exhibits you know your opponent intends to introduce or has introduced at trial.
What should the witness admit?
Ans: While this category is obviously less safe than the previous one, nevertheless it should always be considered. What the witness should admit can be gauged by common sense, logic, probabilities, and by what your other witness will say. If the witness does not admit what you believe he should, the testimony will probably not be accepted by the judge either.
Discrediting unfavourable testimony: By discrediting the testimony cross examiner demonstrate or suggest that the witness is less credible or the testimony is less probably than appeared at the end of the direct examination. This is sometimes called “increasing the improbabilities”, Whether your approach is to obtain unlikely explanations, retractions, contradictions, inconsistencies or implausibility’s, the effect is the same. There are two basic methods by which cross can increase the improbabilities: discredit the testimony and discredit the conduct.
1) Discredit or limit the testimony: The most common type of cross, especially in cases involving occurrence testimony is one that challenges the reliability of the testimony or limits the importance of the testimony. Experience tells us that, although most witness are honest, attempt to be objective, and try to present an accurate narrative of an event, often just the opposite results, but the witness himself usually not aware of this. Witness often sees only parts of an event, and fill in the gaps of their observations by what they think are the logical facts. After a while they honestly believe that they actually observed the filled-in facts, since thoeri memory has blurred the distinction between actual observation and the filled in facts. Consequently, the cross cannot be a direct assault on the witness integrity because the judge will resent and reject this tactic. The sounder approach is to accept the witness honesty but have your cross suggest that certain factors adversely affect his testimony and undermine its impact. The basic methods to discredit the witness are: perception, memory, and ability to communicate.
a) Perception: A common challenge to occurrence testimony centers on the witness ability and opportunity to observe the even involved. Usually this will involve showing that an even occurred quickly and unexpectedly, that the witness is frightened or surprised, and that the lightening was poor. When this done effectively, the judge will realize that the circumstances under which the witness made the observations were not conducive to accuracy.
b) Memory: The witness ability to remember details of an event, and his efforts to record or otherwise preserve these details, are often important considerations. Even where the witness has an excellent opportunity to make accurate observations of an event, the time between an event and the witness testimony in court may be substantial. When this happens, cross often point out that the witness has forgotten details, has made no effort to record them, or cannot really separate this event from other similar ones.
c) Communication: another method of discrediting testimony is to examine the witness ability to communicate. What good does it for a witness to have observed an event, remember what happened, yet be unable to describe the even logically and accurately to the judge? The observations are only as good as it the witness ability to tell what actually happened. A common cross technique is to test the witness ability to describe details and directions and to estimate distances and time to demonstrate that the witness cannot accurately re-create a picture of what actually happened for the judge.
Discredit the conduct: A witness will sometimes testify in a seemingly reasonable manner, yet have acted inconsistently with the testimony. In these instances, the cross should emphasise the inconsistency between the testimony and the conduct. This is based on the established principle that actions speak louder than words. Example: The defendant in an automobile collision case has testified that he was not negligent in the operation of his car. The cross-examiner will develop that he left the scene of the collision without calling the police, never told his wife about it, and never reported it to either the police or any anyone else.
Impeachment: It is the most dramatic trial technique in the lawyer’s arsenal. Selectively used and effectively employed, it can have a devastating effect at trial. Judges appreciate effective impeachment. They enjoy seeing a witness get caught changing his story. However, it should be selectively used because like any dramatic weapon, its impact is diluted with over use. Impeachment must be effectively employed because it must be dramatically executed using a persuasive technique. Consequently, learning when and how to use impeachment is an essential skill for any trial lawyer.
1)Impeachment requirements: Impeachment procedures are governed by statutes, case law, custom and rules of persuasion. These rules for the most part apply regardless of the particular impeachment technique used. There are certain developed procedural requirements to ensure that impeachment would be both fair and efficiently done and courts scrupulously follow then.
2) Must have good faith: Central to impeachment is the requirement of good faith. You must have a good faith basis for believing that the impeaching fact you are disclosing is in fact true. Unless you have such a good faith belief, you cannot inquire into it. The judge may require you to disclose to him your good faith basis for going into a particular matter.
Generally, impeachment must be raised in cross examination. Judicial economy requires that an impeachment fact be brought out on cross because if the witness admits the impeachment, there is no need to prove it up with extrinsic evidence. In addition, an impeached can explain away or reduce the effect of impeachment on redirect examination, an efficient way of dealing with this situation.
a) Must prove if required: whether you must prove up an impeaching matter depends on two questions. First, did the witness admit the impeachment? If the witness unequivocally admits the impeachment, there is nothing left to do. If the witness denies cross examiner is required to prove up the impeaching matter. Equivocations such as I am not sure, I don’t remember, or I might have are treated like denials.
b)When to prove up: If a witness denies or equivocates on a collateral matter, you must prove up the denial or complete the impeachment with extrinsic evidence when you next have the opportunity to cal witnesses or introduce exhibits