Use of Prior Statements, Depositions and Corollary Proceedings: Searing Impeachment and Effective Re

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Use of Prior Statements, Depositions and
Corollary Proceedings Searing Impeachment and
Effective Rehabilitation
Henry J. Renk, Esq.Partner

• FITZPATRICK, CELLA, HARPER SCINTO
• 30 Rockefeller Plaza
• New York, NY

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Impeachment of a Witness

• To call into question the veracity of a witness,
  by means of evidence adduced for such purpose, or
  the adducing of proof that a witness is unworthy
  of belief.
• Blacks Law Dictionary (6th ed. 1990)

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Rehabilitation of a Witness

• After cross examination, a witness whose
  credibility has suffered may be examined again
  (redirect examination) to improve his standing
  with the trier of fact in matters covered on
  cross examination.
• Blacks Law Dictionary (6th ed. 1990)

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• IMPEACHMENT

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Any Witness Can Be Impeached (Rule 607)

• Your Own Live Witness
• Adverse Live Witness
• Out-of-Court Declarant

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Timing Of Impeachment

• Your Own Witness At Any Time
• Adverse Witnesses Usually on Cross-Examination
• Out-of-Court Declarant Whenever Credibility
  Attacked

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Impeachment Techniques

• Attacking witnessess character
• e.g., through prior bad acts or prior convictions
• Demonstrating Bias
• e.g., what motivation does the witness have?
• Demonstrating Sensory Deficiencies
• e.g., could they really see what happened?
• 4) Use of Prior Inconsistent Statements
• e.g., previous statements that now contradict
  their trial testimony

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Types of Prior Statements for Use in Impeachment

• Testimony
• Statements Under Oath
• Statements Not Under Oath
• Litigation Documents

• Deposition or Trial
• U.S. or Foreign Litigation
• P.T.O. Testimony
• Affidavits or Declarations
• P.T.O. Sworn Papers
• Internal Company Records
• Publications by Witnesses
• P.T.O. Papers
• Discovery Responses, Expert Reports, Etc. . .

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Rules of Evidence - Impeaching With Prior
Inconsistent Statements

• Rule 613 Prior Statements of Witnesses
• Relaxes common-law foundation requirements
• Show statement to opposing counsel upon request
• When proving prior statement through extrinsic
  evidence
• Witness must be given chance to explain/deny
• N/A to admission by party opponent Rule 613(b)

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Rules of Evidence - Impeaching With Prior
Inconsistent Statements (cont.)

• FRE 806 Attacking and Supporting Credibility of
  Declarant
• Allows for impeachment (or rehabilitation) using
  out-of-court statement against declarant

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Impeachment Technique Using Prior Inconsistent
Statement

• Step 1 Recommit Witness to His/Her Direct
  Testimony
• Step 2 Validate the Prior Statement
• e.g., Establish when/how prior statement was made
• Authenticate prior statement
• If prior statement is more valuable demonstrate
  that it is the more accurate of the two
  statements.
• Step 3Confront the Witness with the Prior
  Statement
• Leave no room for evasion or argument by witness
  re statement inconsistencies

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Impeaching Experts

• Rules 702 705
• To question soundness of opinions
• Opportunity to contrast multiple experts

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Impeaching Out-of-Court Declarant

• Only When Statement Offered for Its Truth
• Can Use Inconsistent Statement Made At Any Time
  (vs. Requirement of Prior Inconsistency for Live
  Witness)
• Inconsistency Must be Independently Admissible

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Practical Considerations Regarding Impeachment

• Practice Tip 1
• Dont overuse the weapon of impeachment
• Use sparingly
• Save for key fact(s)

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Practical Considerations Regarding Impeachment
(cont.)

• Practice Tip 2
• Make sure the trier of fact understands the
  impeachment

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Practical Considerations Regarding Impeachment
(cont.)

• Practice Tip 3
• Make sure the impeachment is consistent with
  theory of your case

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Practical Considerations Regarding Impeachment
(cont.)

• Practice Tip 4
• Impeach only when success is probable
• - i.e., only where inconsistency clear

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Practical Considerations Regarding Impeachment
(cont.)

• Practice Tip 5
• Do not impeach on information favorable to your
  case

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Practical Considerations Regarding Impeachment
(cont.)

• Practice Tip 6
• Consider the witness your are impeaching

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• REHABILITATION

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Rules of Evidence Relating to Rehabilitation
Using Prior Statements

• FRE 801(d)(1)(B)
• Prior consistent statement admissible, but only
• After credibility of witness has been attacked
• To rebut express or implied charge of recent
  fabrication, improper influence, or bad motive.
• Prior statement must have been made before
  corrupting influence or event was present (See,
  Tome v. United States, 513 U.S. 150 (1995))

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Rules of Evidence Relating to Rehabilitation
Using Prior Statements (cont.)

• FRE 806 Attacking and Supporting Credibility of
  Declarant
• Declarants statement admitted in evidence
• Declarants credibility attacked

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Practical Considerations Relating to
Rehabilitation

• Practice Tip 1
• Hit your own witnesss inconsistent statements
  head on during direct

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Practical Considerations Relating to
Rehabilitation (cont.)

• Practice Tip 2
• Rehabilitate only where absolutely necessary

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Practical Considerations Relating to
Rehabilitation (cont.)

• Practice Tip 3
• On redirect refer to adversarys raising of
  inconsistent statement

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Practical Considerations Relating to
Rehabilitation (cont.)

• Practice Tip 4
• Prepare your witness to adequately handle the bad
  points

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Thank You