Witness Rehab

When you are unlucky enough to have your witness discredited during cross-examination, you need to get that witness into witness rehab.

There are three primary ways to rehabilitate lay witnesses:

  1. Re-examine the witness to explain any contradictions or inconsistencies;
  2. Introduce a prior consistent statement made before a prior inconsistent statement that was introduced against the witness; and
  3. Introduce evidence of the witness’ reputation for honesty and truthfulness, if those character traits were attacked on cross-examination.

Here’s an example of how witness rehab might play out:

On cross-examination in a car accident personal injury case, defense counsel impeached the plaintiff with a statement he made to police on who was with him in his car at the time of the accident. During redirect, plaintiff’s counsel wants to ask her client questions that will allow him to explain discrepancies in his testimony.

Q: Do you know how long it was after the accident that you gave police the statement defense counsel showed you?

A: It seemed like a long time because I was in so much pain. The police came at the same time as the ambulance.

Q: Did you receive any relief for your pain before you made the statement to the police?

A: No.

Q: Can you describe how you felt when you made that statement?

A: I was in so much pain I could barely see, and I couldn’t help screaming sometimes. I was shaking uncontrollably, which made my broken ribs hurt even more. I don’t think I heard more than half of what that officer said, and I can’t stand a hundred percent behind my responses. The only statement I made that day when I was in a mental state to understand the questions and tell what really happened was the one I gave police at the hospital after I had been treated.

It’s at this point that plaintiff’s counsel shows plaintiff the prior consistent statement he made in the hospital and has him authenticate and read from it.

As with most things, prevention is better than cure. The best approach to the possibility of “mistestimony” by a witness is prophylactic. Be sure you have prepared your client adequately. For example, review any conflicting statements, possible bias, motive to lie, or difficulties in observation of the events to which the witness will testify. Otherwise, on redirect the explanation for the “mistestimony” may seem like “I’m sorry for being caught” instead of an “upfront” explanation.

Not all problems can be foreseen, however, and redirect examination and other rehabilitation methods can be useful tools in taking the sting out of cross-examination.

For excellent coverage of the issues involved in rehabilitating lay witnesses, turn to CEB’s Effective Introduction of Evidence in California, chap 34. On the pitfalls of improper rehabilitation, check out CEB’s California Trial Objections, chap 23.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 Responses

  1. I guess this relates to a witness directly connected with your case, as opposed to an Expert Witness that has been impeached in Cross X. In the former instance, I think you have a tough row to hoe. All of the options you suggest should be employed. In the latter instance, you hired the wrong expert. Recovery will be difficult.

  2. Wither with expert or lay witness, preparation cannot be overstated. Thorough background research on both (because your adversary should and probably will) and allotting proper amount of time for prepartion before testimony. Many lawyers wait until last minute to prep the witness, even at the court house. That’s a serious risk to client, counsel and the expert. There are times retaining counsel may overlook something that can be leveraged or misused under cross including prior publications, published statements,etc. The lawyer should vet oown expert as well, even better, than opposing counsel.

  3. Good points, Rona. Preparing your witness is critical. I covered this in my blog post 5 Steps to Preparing an Expert Witness to Do Battle at

    https://blog.ceb.com/2012/01/30/5-steps-to-preparing-an-expert-witness-to-do-battle/

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