Cross-examination Techniques #5 - Whether or Not to Impeach

It's a matter of judgment.

We examined how to impeach a witness in Episode #3 in the Cross-examination series. Then, in Episode #4, we considered what to do after confronting the witness with the earlier statement. In this final episode in the three-part series, we will ask whether we should even bother to impeach.

Suffice it to say that the cross-examiner has three possibilities when the witness says something at odds with an earlier statement. 

1.     The most common situation is where the previous statement differs from the current one, but the deviation is insufficient to excite the decision-maker. This witness is not a lying SOB but merely strayed from the path of truthiness (apologies to Stephen Colbert).

2.     The second situation is whether there is a material difference, but the current statement is better for your case than the earlier one. Should you let a sleeping dog lie?

3.     The third is where you pounce. The witness should have advanced your case but chose not to. Spring your trap!

The discussion of these situations and the discussion of the demonstration fall under the paywall. Sorry about that. If you are curious and think that this and other techniques might help your advocacy skills even a little bit, please consider signing up as a paid subscriber. You get access to all the cross-examination techniques and the other 26 episodes (including the demonstrations) already in the can.