Impeachment has been defined as “demonstration that a witness is less worthy of belief.” (Click here for citation, June 23, 2021). Obviously, this can be one of the primary goals of any cross-examination of a witness. The opposing party called them as a witness because they believe that this person adds to their case. By impeaching such a witness, we are telling the jury or judge that this person should not be believed. One of the best methods to show that a witness is not worthy of belief is to show that they have given inconsistent statements. The point here is not to prove that one statement should be believed over the other but, rather, that neither statement, and by extension the witness as a whole, should be believed.

A deposition is a discovery device that allows a party to interview a person on the other party’s witness list. The deposition is conducted under oath and typically recorded by a court reporter. Especially on points that are important to the case, the attorney needs to know the page and line at which the important statement is located. At the least, an attorney should have technology or an assistant that can quickly assist in finding the statement. While we generally know what the testimony from any particular witness will be, they can still surprise you from time to time.


Impeachment Step One: Commit

Commit the witness to the statement. Essentially, here you are giving the witness a chance to correct themselves. This also locks them into their statement so that they can’t argue that they misspoke when you confront them with the prior inconsistent statement. It looks a little like this:

Question: When you entered the intersection, you had just received a text and we’re looking down into your lap at your phone?

Answer: No, I looked both ways before entering the intersection and kept my head up the entire time. I didn’t look at my phone at all.

Question: So, you didn’t receive a text at all while crossing the intersection and you kept your attention on the road at all times?

Answer: Correct

At this point, they are locked in and you can move on to the next phase of a proper and persuasive impeachment.


Impeachment Step 2: Credit

In this step, you are calling the witnesses to the date, time, location, and the person to who the deposition statement was given. You are also building this statement up as much as you can to show that the person was serious when the statement was given. The testimony in court is given under oath. So is a deposition. When there’s two different statements given to the same question while under oath both times, it’s an easy argument at Closing that the witness should not be believed at all. This part can look like this after building upon Step 1:

Question: You gave a deposition on June 12, 2021 at my office.

Answer: Correct

Questions: This deposition occurred closer in time to the accident than your testimony today.

Answer: Correct.

Question: Present was myself, your attorney, and the court reporter.

Answer: Correct

Question: You took that proceeding seriously.

Answer: Correct

Questions: Because the court reporter put you under oath to swear to tell the truth, the whole truth, and nothing but the truth

Answer: Correct

At this point, you’ve shown the jury that the witness took the proceeding as seriously as they take their testimony today and you locked them in on step 1 so that they can’t argue that they misspoke. Now it’s on to the last step.


Impeachment Step 3: Confront

In this step, you are confronting the witness with the statement. At this step, the witness can either admit the statement or deny the statement. If they admit the statement, the inquiry is at an end. With regards to depositions, they rarely deny the statement as it is right there on a piece of paper for them to review. At this step, you must also remember to alert opposing counsel to the location of the statement on the transcript so that they may follow along and be given an opportunity to object if you were to misstate the questions and answers on the transcript. If the statement is denied, you can do a couple of things that we’ll go into later in this article. Here’s how this part looks:

Question: I’m going to alert counsel to Page 11, Line 17 of the deposition transcript of this witness given on June 12, 2021. I asked you the question: “What were you doing as you entered the intersection.” You answered: “I looked both ways before entering the intersection. However, as I crossed the stop bar I received a text so I looked down into my lap because my phone was there. As I looked down, I felt a sudden jolt as I ran into something.” Is that accurate?

Answer: Correct.

At this point, the impeachment is accomplished. There’s no reason to ask a question like, “Which is true?” or “Are you lying now or were you lying then?” This gives a witness wiggle room and is unnecessary. You can already argue in closing that they gave two different answers to the same question while under oath. You’ve done your job.

Now, if they respond with the answer, “That’s not accurate,” you have a couple of options. First, you can wait until your case-in-chief and introduce the deposition transcript into evidence. Second, and what usually works, is you can ask a question like, “Are you certain your memory is accurate as to what you said at the deposition?” The witness will see you with the transcript in your hand and know that there is a contradictory answer in there. In order to save partial face, they’ll answer with something like, “I might not be remembering it perfectly.” If they do, you can now refresh their recollection. This is done with a short series of questions.

Question: Would reviewing the deposition transcript help refresh your recollection as to what you said at the deposition?

Answer: Yes.

Question: Your Honor, may I approach the witness?

Judge: You may.

Question: For the record, I’m now showing the witness a transcript of her deposition given on June 12, 2021. Have you had a chance to review the relevant portions?

Answer: Yes.

Question: Is your recollection now refreshed as to what you said on June 12, 2021 at your deposition regarding what you were doing in the intersection.

Answer Yes.

Question: What did you answer then?

Answer: That after looking both ways I received a text and looked into my lap.


At this point, the examination on this point is done and you can move on to your next line of inquiry or end your questioning if you are finished.