Trial Techniques – The Art of Cross-Examination – Part III

The third alternative objective of cross-examination is to discredit the testimony of the witness being called by your opponent. This can be done in several ways. The most traditional way is to impeach the witness by proof of conviction of a crime. Another manner is to prove a prior inconsistent statement, most often taken from prior sworn deposition testimony. However, proof of a prior inconsistent statement may also be offered through an inconsistent statement given to an investigator or other third party witness. Additionally, prior statements or writings of the witness can be used to impeach the witness by establishing that on a prior occasion the witness has offered inconsistent evidence in writing.
When attempting to impeach a witness with proof of conviction of a crime, in Georgia, it is necessary that counsel have a certified copy of the conviction available to establish that the witness was, in fact, convicted of the crime at issue. The crime must involve moral turpitude and must not be too remote in time. If the conviction is more than ten (10) years old, it may be inadmissible. Additionally, if a prior criminal act or specific act of misconduct did not result in a conviction, depending upon the peculiar facts if the case, it may or may not be admissible. A conviction for a crime of moral turpitude obviously casts a shadow on a witness’s veracity.
In order to successfully discredit the testimony of the witness, the impeachment of the witness should be material to their overall testimony. Proving prior inconsistent statements of an immaterial nature is not going to be very persuasive for a jury. However, proof of prior inconsistent statements which are material in nature can be extremely important in convincing a jury what the facts are in a particular case. For example, if a plaintiff in a personal injury case has denied any prior injury or illness in prior sworn testimony, and they take the stand and repeat these denials, if they are impeached with prior inconsistent statements to medical doctors, by way of admissions in medical records or otherwise, this could be very detrimental to their case. If it is established that the Plaintiff has suffered prior back injuries when the Plaintiff has testified that he has never had a prior back injury, obviously, the witness has been successfully impeached and the third purpose of cross examination has been achieved, to discredit the testimony being offered.