A witness on the stand has made a statement that’s inconsistent with his or her earlier deposition testimony and has committed to the inconsistency. As the cross-examining attorney, how should you handle it?
Start by calling it out: Confront the witness with the inconsistency so that you convey it to the jury. Some attorneys like to confront the witness with an inconsistent deposition statement by first showing the witness the transcript and then reading from it, like this:
Q: Now I’m showing you the original transcript of your deposition. [If signed, ask whether it is the witness’s signature.] Will you now please read to yourself lines 6 through 9 on page 12? [Hands deposition to witness.] Were you asked “How did Ms. Jones appear to you at the scene of the accident?”
Q: And did you answer: “Well, she looked drunk to me.”
But you don’t need to show the deposition transcript to the witness (Evid C §768(a)) or give the witness any information on it (Evid C §769). You can simply ask the witness whether a specific statement was made at the deposition. The impeaching testimony can then be read directly without asking the witness whether he or she so testified. For example, you might confront the witness with the inconsistent deposition statement as follows:
Q: You stated under oath before this trial that Ms. Jones looked drunk. Is that right?
A: I did not.
Q: I will read to you from the transcript of your testimony in your deposition at page 12, lines 6 through 9. Question: “How did Ms. Jones appear to you at the scene of the accident?” Answer: “Well, she looked drunk to me.” That was your testimony at your deposition. Is that correct?
A: Yes, it was.
The witness may answer that he or she doesn’t remember giving that testimony, didn’t give that testimony, or the answers must have been inaccurately reported. One way to counter such an explanation is to establish that the witness signed or corrected the deposition transcript.
But if the deposition wasn’t corrected or signed, or the witness claims to have overlooked that particular response when signing the deposition or the deposition testimony was inaccurately reported, you may need to call the deposition reporter as a witness to testify. Or, because the judge has explained the deposition process to the jury and the jury will understand that you’re reading testimony previously given by the witness, you can simply read the transcript and then proceed with cross-examination.
If the witness denies reading and correcting the deposition shortly after it was taken, ask whether the witness has read the deposition in preparation for the trial. Almost all witnesses will testify that they read the deposition in preparation for trial. You’ll force the witness to admit that he or she
- Overlooked the error (implying that it’s actually not an error);
- Recognized it but didn’t call it to anyone’s attention (implying either that it’s not an error or that the witness intentionally wanted to hide it); or
- Called it to the attention of opposing counsel, who failed to notify other parties or the court.
Learn how to effectively use discovery at trial in CEB’s California Trial Practice: Civil Procedure During Trial, chap 12. And get examination tips from the experts in CEB’s Effective Direct and Cross-Examination and CLE program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.
Other CEBblog™ posts you may find useful:
- 10 Steps to Impeaching a Witness with Prior Depo Testimony
- Questioning at Trial Versus at Depositions
- Cross-Examining the Unimpeachable Witness
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