The third in a series of four blogs from George Ellard from The Veen Firm on how to cross-examine a witness to impair their credibility.
Impeachment by character evidence is the use of a personal trait to impair credibility. There are essentially four methods to impeach using character evidence: defects in perception, defects in recollection, felony convictions and past misconduct.
A. DEFECTS IN PERCEPTION
Defects in perception are based upon personal impressions of an occurrence. The witness should be examined on their opportunity and capacity to perceive. (See Ev. C. §780(c),(d) (pdf)) Because perception varies amongst every one of us, it is important to establish that with the witness. The reasons for the variance in perception should be established. For example, the variance comes from physical location during the relevant event, the quick and unexpected nature of the event, vision acuity, attentiveness and effects of medication. Other factors affecting perception can be influences imparted on the witness by others such as an attorney, investigator or a party. Impressions may vary from the witness’ desire for a particular outcome. Over time, the desire turns into belief and the belief becomes misguided perception. Unconscious partisanship affects perceptions as does a desire to please the court, a party or the police. Exposing these tendencies may be very difficult, but you should at least accept that they may be present. The cross-examiner must search for and expose these tendencies while balancing the risk of being perceived as a bully.
B. DEFECTS IN RECOLLECTION
The witness should also be examined on their capacity to recollect. (See Ev. C. § 780(c) (pdf) Defects in recollection do not go to perception of the original events, but on events that have impacted the ability to recollect. Effective cross-examination will show that the witness cannot recall sufficient details of the event, thus harming their credibility. Questioning along these lines is most often seen as exposing the passage of time since the occurrence. Also, points of importance include the witness’ failure to make contemporaneous notes, there was no particular reason to commit the occurrence to memory, and there may be confusion of the occurrence with another similar incident.
C. FELONY CONVICTIONS
Felony convictions are admissible to attack credibility pursuant to Ev. Code 788 (pdf). Generally, the length of the sentence is not admissible. To get as much mileage out of the conviction as possible, have the witness agree that a felony is a crime punishable with death or by imprisonment in the State prison (Penal Code §17(a)) and obtain testimony of the reason for the conviction, date of conviction and the court location. The more time spent on the felony conviction, the better. Be prepared to argue against an Evid Code 352 (pdf) objection as to the probative value versus its prejudicial effect.
D. PAST MISCONDUCT
Evidence of specific instances of a witness’ conduct to prove a trait of character is inadmissible to attack the witness’ credibility. (Ev. C. §787) However, past misconduct is admissible to show the witness has motive, bias or other interest that might induce false testimony. Ev. C. § 780(f) (pdf))
Be sure to review the CACI instruction 107 before your deposition and cross-examination of the witness. You’ll be using that instruction during your closing, so be sure you are tailoring your cross to it.
NEXT: Impeaching the Expert Witness