Civil Litigation Discovery Evidence Legal Topics Litigation Strategy Trial Strategy

10 Steps to Impeaching a Witness with Prior Depo Testimony

steps_78288477A witness’s deposition can be used for impeachment (i.e., to attack the witness’s credibility) by showing that the testimony on the stand isn’t consistent with the deposition testimony or “for any other purpose permitted by the Evidence Code.” CCP §2025.620(a). The quoted language permits the deposition to be used to show both prior inconsistent statements (Evid C §1235) and prior consistent statements (Evid C §1236).  Next time you have depo testimony that will impeach a witness, follow these 10 steps.

  1. Lodge the depo transcript. Before or when a witness first takes the stand, lodge with the court the original deposition transcript with the appropriate certification by the court reporter.
  2. Identify the depo transcript. Before you begin reading prior testimony, briefly identify the transcript for the record and jury.
  3. Ask foundational questions. Although it’s usually unnecessary, consider using foundational testimony to impress the jury with the importance of the prior inconsistency (e.g., that witness remembers the deposition and knew that he or she was answering under oath). But don’t hand the witness the impeaching transcript before impeachment because it gives the witness time to harmonize deposition answers and trial testimony, sidetracking effective impeachment.
  4. Ask the court’s permission to read from the depo transcript. It’s generally preferable to read it yourself rather than ask a witness to read it.
  5. Designate portions you intend to read. Provide inclusive page and line numbers. Just read questions and answers; not attorney colloquies or objections.
  6. Wait for review and objections. Pause long enough for the court and opposing counsel to review the designated portions for possible objections. If opposing counsel has an objection to any specific portion, it should be made and resolved before that portion of the transcript is read.
  7. Read the depo transcript. Read the designated portion carefully into the record, prefacing each question with the word “Question” and each answer with the word “Answer.”
  8. Don’t ask the witness to explain. After you finish reading the designated portion of the transcript, don’t ask the witness to explain discrepancies or comment on the testimony, or whether his or her recollection has been refreshed.
  9. Don’t offer the transcript into evidence. It’s generally unnecessary to offer the deposition transcript into evidence, and the court generally will reject such an offer.
  10. Refer to the depo testimony during your closing. You can read or display previously read deposition testimony only during closing argument.

Check out the sample record showing you how it’s done in CEB’s Laying a Foundation to Introduce Evidence (Preparing & Using Evidence at Trial), Step 26. And get more guidance on using depositions at trial in CEB’s California Trial Practice: Civil Procedure During Trial §§12.32-12.97.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

4 replies on “10 Steps to Impeaching a Witness with Prior Depo Testimony”

Love that CEB handbook “Laying a Foundation to Introduce Evidence”. Like all “incantations”, this 10-step process should be practiced regularly at home or in the office before you try to do it at trial….

This detailed list of steps sure makes it simple. Even better if you can play the depo video! It’s pretty powerful when you get the opportunity to impeach a witness with their own video. I’ve seen witnesses change their demeanor, in fear that it will happen again.

This is all very helpful, but even better? Imagine you have audio of the deposition, or better yet, video. Then instead of reading a transcript, you actually play the impeaching video clip right to the jury! This can destroy the witness. We’ve done this to great affect for our clients.
David Notowitz,

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