Cross-examination Made Simple Part 2: Impeachment by Inconsistent Statement

Hi Mike, With the cross-examinations of the prosecution’s snitch witness, have you gotten a copy of the allocation as to what happened so that you can refresh the witnesses recollection if the snitch says “I don’t recall”? Also, questions about the snitch’s attorney advice re: the deal, isn’t that violating attorney-client communications?

As far as refreshing recollection goes, here is when it can be used: When a witness’s memory fails, anything can be used to jog the memory of the witness while he/she is on the stand (including a bowl of macaroni). The witness need not have prepared the writing herself nor must the writing have been prepared at or near the time of the event. The writing itself need not be admissible in evidence. Here are the limitations: (1) W must testify w/o looking at the writing (Examining counsel hands writing to W and gives W a moment to refresh her recollection. W testifies from her own recollection but she does not look at the writing, itself). (2) Opposing counsel has an absolute right to inspect the document, to cross-examine using the document, and introduce relevant portions of the writing. (3) Even if the W had not been shown the writing while testifying, but had reviewed the statement prior to coming into court, the court could order production of the writing for opposing counsel if it is in the interest of justice. Regarding the questions put to the snitch on cross-examination that went specifically to his private discussions with his attorney in deciding whether or not to accept the deal, I agree entirely that this line of questioning violates the attorney-client privilege. I got carried away. I apologize. At the same time, the line of questioning that dealt with what the snitch stood to gain by accepting the deal (i.e., reduced sentence, less time incarcerated, his freedom and a return to a normal way of life, being re-united with family who he loves and who loves him) versus what he stood to lose if he went to trial and lost (a lengthy prison sentence away from family and friends where he is confined to a small cell, given limited time for recess, where his safety is always at risk, where the rules are strict and limiting, where his free-will is curtailed by orders and commands of what he can and cannot do, where the mattress is so thin that he wakes up in the morning with imprints of the springs on his back, where the meals are not appetizing and meager) is par for the course. The details of this need to be fleshed out with as much specificity as possible so that the jury comes away thinking, "I can understand why this person would falsely implicate the defendant. He had so much to lose, yet so much to gain." Broad strokes will not do it alone.