Difference between revisions of "Cross-Examination"

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== Impeachment ==
 
== Impeachment ==
  
Impeachment is an allegation, supported by proof, that a witness who has been examined is unworthy of credit. Impeachment may be indirect, as through a second witness or presentation of other physical evidence or direct, typically in cross-examination or even direct examination (if permissible.) Cross-Examination is one of the primary places that a defense attorney can impeach a witness. Generally, a defense attorney may impeach prosecution witnesses subject to limitations of the evidence code. Under certain circumstances, an attorney may even impeach their own witnesses.  
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Impeachment is an allegation, supported by proof, that a witness who has been examined is unworthy of credit. Impeachment may be indirect, as through a second witness or presentation of other physical evidence.  Or impeachment may be direct, which is typical in cross-examinations or even direct examination (if permissible.) Cross-Examination is one of the primary places that a defense attorney can impeach a witness. Generally, a defense attorney may impeach prosecution witnesses subject to limitations in the evidence code. Under certain circumstances, an attorney may even impeach their own witnesses.  
  
 
When preparing for a case, imagine how any one of these areas might impact the witness's credibility:
 
When preparing for a case, imagine how any one of these areas might impact the witness's credibility:
  
=== Bias, interest, motive, prejudice, corruption, plea deal etc. ===
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=== Bias, interest, motive, prejudice, corruption, plea deal, etc. ===
  
 
The most common method of impeaching the credibility of a witness is bias, particularly when a witness has a personal relationship with the victim. Similarly, a witness who has been given a special deal by the prosecution has a strong incentive to lie.
 
The most common method of impeaching the credibility of a witness is bias, particularly when a witness has a personal relationship with the victim. Similarly, a witness who has been given a special deal by the prosecution has a strong incentive to lie.
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=== Prior convictions and bad acts ===
 
=== Prior convictions and bad acts ===
  
The admissibility of prior convictions and bad acts varies from country to country. However, a defense attorney should always keep these in mind.  In the United States the rules regarding the admissibility of prior convictions as impeachment evidence is complex.  However, as a general rule convictions that go directly to honesty of a witness are the most powerful. Prior bad acts are also great fodder for cross-examination if they are admissible in court. In the United States, prior bad acts are not admissible to show conformity with conduct on a certain occasion. Thus, evidence of prior burglaries cannot be used to prove a defendant is guilty of burglary on a certain occasion. However, prior bad acts may be admissible in the United States for other, so-called "non propensity" reasons: motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake. The rules of evidence surrounding prior bad acts will vary greatly from jurisdiction and the defense attorney should study these carefully if the client has any history of bad acts that could be an issue at trial.
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The admissibility of prior convictions and bad acts varies from country to country. However, a defense attorney should always keep these in mind.  In the United States the rules regarding the admissibility of prior convictions as impeachment evidence is complex.  However, as a general rule convictions that substantiate or undermine the honesty of a witness are the most powerful. Prior bad acts are also helpful
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on cross, if admissible.  
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In the United States, prior bad acts are not admissible to substantiate a subsequent claim of the same bad act. Thus, evidence of prior burglaries cannot be used to prove a defendant is guilty of burglary. However, prior bad acts may be admissible in the United States for other, so-called "non propensity" reasons: motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake. The rules of evidence surrounding prior bad acts will vary greatly from jurisdiction and the defense attorney should study these carefully.  
  
 
=== Prior dishonest conduct ===
 
=== Prior dishonest conduct ===
  
Prior dishonest conduct, like prior convictions for tax evasion or perjury, may be admissible so that the fact finder can evaluate the credibility of a particular witness.
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Prior dishonest conduct, like prior convictions for tax evasion or perjury, may be admissible for credibility purposes.  
  
 
=== Specific contradictions / reality ===
 
=== Specific contradictions / reality ===
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=== Capacity to perceive, recollect and communicate ===
 
=== Capacity to perceive, recollect and communicate ===
 
   
 
   
A powerful method of impeachment during cross-examination is to attack a witness's ability to perceive, recollect, and communicate. For instance, in a case of eyewitness misidentification, the defense attorney may attack wht witness's vision by showing that the witness was not wearing her glasses at the time of the incident.
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A powerful method of impeachment during cross-examination is to attack a witness' ability to perceive, recollect, and communicate. For instance, in a case of eyewitness misidentification, the defense attorney may attack a witness' vision by showing the witness was not wearing her glasses at the time of the incident.
  
 
=== Prior inconsistent statements ===
 
=== Prior inconsistent statements ===
  
A defense attorney can also impeach a witness by prior inconsistent statement during cross-examination. This can be one of the most powerful methods of cross-examination because it simultaneously undermines the witness's credibility and establishes a question of fact for the jury. There are at least two ways of looking at prior inconsistent statements. In some cases, the lawyer will want to argue that the first statement is the most accurate of the two statements. In other cases, the lawyer may argue that it was the second statement that is more reliable. Finally, in some cases, the lawyer may simply want to show that the witness is totally unreliable
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A defense attorney can also impeach a witness through prior inconsistent statements during cross-examination. This type of impeachment simultaneously undermines the witness's credibility and establishes a question of fact for the jury. There are at least two ways of looking at prior inconsistent statements. In some cases, the lawyer will want to argue that the first statement is the most accurate of the two. In other cases, the lawyer may argue that the second statement is more reliable. In some cases, the lawyer may simply want to show that the witness is totally unreliable.
  
Following is a three-step guide to impeachment by prior inconsistent statement when the goal of impeachment is to bolster the credibility of the witness's first statement:
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Following is a three-step guide to impeachment through inconsistent statements when the goal is to bolster the credibility of the witness's first statement:
  
 
*Step 1: Commit the witness to the statement by asking leading questions.
 
*Step 1: Commit the witness to the statement by asking leading questions.
  
*Step 2: Commit the witness to the circumstances surrounding the statement that increases chances the statement was accurate.
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*Step 2: Commit the witness to the circumstances surrounding the statement that increases the chance that the statement was accurate.
  
 
*Step 3: Confront the witness with the contradiction.
 
*Step 3: Confront the witness with the contradiction.
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== Refreshing Recollection ==
 
== Refreshing Recollection ==
  
By the time a case goes to trial several months may have passed since the alleged incident occurred. Therefore, it is common that witnesses no longer remember certain facts. Sometimes, a witness may have provided testimony to police officers or investigators early in a case. In some jurisdictions the court may permit the defense attorney to "refresh" the recollection of the witness by providing them with a copy of their own statements. If refreshing recollection is permissible in your jurisdiction, you should be familiar with the steps necessary to establish the foundation for the procedure in court.
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By the time a case goes to trial, several months may have passed since the alleged incident. Therefore, it is common for witnesses to not remember certain facts. Sometimes, a witness may have provided testimony to police officers or investigators early in a case. In some jurisdictions the court may permit the defense attorney to "refresh" the recollection of the witness by providing them with a copy of their own statements. If refreshing recollection is permissible in your jurisdiction, you should be familiar with the steps necessary to establish foundation for the procedure in court.
  
 
== Browne v. Dunne: Limits on Impeachment ==
 
== Browne v. Dunne: Limits on Impeachment ==

Revision as of 17:11, 17 June 2010