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Impeaching Witnesses With Prior Inconsistent Statements: Is All Credibility Eviscerated?

By Brian Harris

The Question

A few years back, two of my colleagues and I had a question: When an attorney impeaches a witness with a prior inconsistent statement, has the credibility of that witness been totally eviscerated?

We knew that some folks in the litigation world thought that was the case. We weren?t so sure. So, we did what researchers do -- we collected data. In our research, we gave 808 jury-eligible adults from across the country a six-item questionnaire. The questionnaire addressed how those jurors would respond to a witness? statement on the stand that is inconsistent with what the witness had said at a prior time.

The results of our research were published in DRI?s publication, For the Defense. We called the article, ?Impeaching with Prior Inconsistent Statements: It?s Not as Devastating as You Might Think.?  The title may give you a bit of an indication of what we found.

The Findings

We found that most jurors (72 percent) tend to believe that witnesses are generally honest. While a substantial proportion (60 percent) would believe that a witness who says something in court that was different than a prior statement is purposely lying, only 20 percent said that they would disregard everything the witness said in that instance.

Instead, most of the jurors who took the survey (64 percent) indicated that, when faced with a witness who made a prior inconsistent statement, they would focus on how the witness behaves (body language, etc.) to determine whether or not he or she is telling the truth on the stand.

The punch line is this: Impeaching with prior inconsistent statements is obviously helpful in damaging a witness?s credibility, but is not always the slam dunk as one may think. Instead, jurors are typically willing to consider that human factors such as anxiety associated with giving testimony in court (59 percent) and the tendency to forget things as time passes (46 percent) can lead a witness to making honest mistakes. 

What Does This Mean for My Trial?

There are two things to consider in regard to these findings. The first relates to when you impeach a witness with a prior inconsistent statement on cross. Most likely, unless the witness is turned into a babbling mess on the stand, your job is not over. Relying on one or two impeachments, no matter how devastating they may seem to the other side, can leave you open to the possibility that jurors will forgive those witnesses.  Never get complacent or overconfident.

The second relates to your own witnesses. Now, this is not to say that you should fail to worry about inconsistent statements. It is still important to avoid them by making sure a witness is well versed on the statements she has given. It is, though, to say that preparation with that witness must involve work on how to handle such situations with poise so she does not become the babbling mess on the stand when the unexpected happens.

It is clear that jurors attend to behavioral, non-verbal cues in witnesses as much as, if not more than, the content of that witness?s testimony. Those cues are especially critical during times of confrontation with an inconsistent statement. Someone who becomes a deer in headlights is more likely to be thought as a person caught in a lie. On the other hand, someone who takes a breath, looks the jurors/examiner square in the eye and says, ?What I meant when I said that was ?? or ?After taking another look at the documents, I realize I was incorrect ?? has a much better chance of jurors considering the witness a human being, and not necessarily a liar.

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

Full post as published by The Legal Intelligencer Blog on January 21, 2010 (boomark / email).