Know When to Pursue Witness Inconsistency and When to Let it Go

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01Sep2013

Know When to Pursue Witness Inconsistency and When to Let it Go

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By Dr. Ken Broda-Bahm

If you’ve spent any time in civil courtrooms, you’ve seen it before. The witness in the box fudges an answer and says something that differs a bit from their deposition, and the solemn ritual of impeachment begins. With great fanfare, the official copy of the deposition is unsealed. Do you remember having your deposition taken? Do you remember a court reporter being present? And you were sworn to tell the truth? And you did tell the truth? Did I ask you…? And did you answer…?  After all of this buildup, the jury is now on the edge of their seats, expecting the next question to bring a full-on Perry Mason style breakdown on the stand with the fact witness now confessing to murder. What more commonly happens in an actual civil trial impeachment, however, can be a little less dramatic: a momentary difference in a timeline description, an altered recollection of one fact among many, or a somewhat higher or lower degree of certainty than was earlier conveyed.

So there it is, laid bare for the jury to see: an inconsistency between what the witness said then and what the witness is saying now. But does it make a difference to a jury? It certainly can, since consistency along with confidence are the critical components of witness credibility. At the same time, however, too many lawyers are tempted to impeach too much, drawing distinctions that can seem unimportant or inaccessible to the finders of fact. An overreliance on impeachment can just leave jurors wondering “What was that all about?” or, worse, can reveal a nit-picky hostility toward a witness that will have jurors rooting for the average fellow in the witness box instead of the critical and demanding attorney. It is a fine line, and certainly a case dependent one, but this post considers whether there are some general rules on when you should pull the trigger in impeachment and when you should keep your powder dry.

The Lure of Calling a Witness Out on Inconsistency

A long line of research studies over the past several decades shows that consistency is one of the most frequently used signs of a witness’s credibility. Berman and Cutler (1996), for example, showed in a controlled video study that a defense attorney’s exposure of inconsistencies in a prosecution witness significantly reduced conviction rate. A more recent comprehensive view of research and theory (Fisher, Vrij, & Leins, 2013) shows that, while inconsistency still tends to be the most often cited reason for disbelieving the testimony of others, the actual source of that inconsistency can be less clear, sometimes springing from context, question wording, or a natural decay in memory. In fact, dishonest testimony can end up being the most consistent, since the liar is just repeating a simple story, and the truth-teller is “contaminated” in a way by a greater diversity of actual facts that can lead to inconsistencies with repeated tellings.

There may also be additional outward signs jurors look to. Research from Brewer and Burke (2002), for example, suggests that confidence may matter more than absolute consistency: A confident witness might get away with a few inconsistencies and still do better than an under-confident witness who is absolutely consistent. But that is the beauty of impeachment because it addresses both inconsistency and confidence. A witness hit with a relevant and clear impeachment on one source of inconsistency is likely to be a little less confident in upcoming testimony.

One issue with the research on witness consistency, however, is that most of it is conducted in a criminal context, nearly always focusing on eyewitnesses. While we might think that the same factors would go into a juror’s determination of truthfulness, there are reasons to think it might operate differently in the criminal world. Eyewitness inconsistency is more likely to be clear and obvious – or, at least, visual: He had a red shirt…no, he had a blue shirt. It is rarely that clear in a civil trial. While inconsistency still matters, civil litigators are well advised to pause a moment and make sure that their purposes are clear.

For lawyers, at least part of the appeal of a good impeachment is that it is an aggressive takedown of an opposing witness, and might appeal to a litigator’s brawler instinct. That can mean that the effect impeachment is having on you differs from the effect it is having on the jury. In one longer trial, for example, I sat in the gallery watching both sides. One attorney for the opposing party was faced with a group of our well prepared but still relatively unsophisticated fact witnesses, a group with the normal amount of inconsistencies. This opposing counsel, however, relished every impeachment, going through the full suite of steps on even minor inconsistencies. By about the fifth time, the jury was onto the drill and several started to look impatient and even rolled their eyes each time he stopped to unseal yet another deposition. More than half the time, there was no glaring problem, just a different way of stating, quantifying, or emphasizing the testimony. Overreliance on repeated impeachment dulled the impact of even those impeachments that had merit. It is a basic principle of persuasion: Any button that you keep pushing is going to become less effective over time.

Keep “Impeach” Slightly Out of Reach

As with any good tool, witness impeachment on inconsistency is best saved for situations where it really matters. The question on your mind shouldn’t be just, “Is that an inconsistent statement?” but also should be “Is that an inconsistent statement where my own point would be clear, central, and credible?”

The Inconsistency Must be Clear

Jurors have to get it. When placed side by side, the present statement and the prior statement need to be fairly close to a night and day difference. When it is simply a difference in language, emphasis, intensity, or detail, jurors are apt to see you as the nit-picker. Remember that lawyers are already operating under the burden of social stigma that sees the profession as, well, legalistic. Don’t feed that perception by jumping on impeachment when the difference between statements is really just a shade of gray.

The Inconsistency Must be Central

Pointing out inconsistency for its own sake doesn’t get you anywhere. While the law might say that any inconsistency matters because it goes to credibility, in practice expect jurors to be asking “So what?” and the answer should connect back to a central fact about the witness’s testimony. On this score, before you move through the mechanics of impeachment, it will be wise to set it up by walking the witness through the themes of why the answer is important and how the answer connects to central points of the witness’s testimony. When the inconsistency is revealed, the jury needs to feel like a part of the foundation for their belief in the witness is now crumbling.

Your Use of the Inconsistency Must be Credible

I say “credible” because, even though the whole point of the exercise is to drain the witness’s credibility, there is one important fact about credibility: to take some, you need to have some of your own. So this point connects to the previous two. If jurors feel you’re making a clear and central point with the witness’s inconsistency, they’ll back you. But if they think you’re mostly jousting or scoring points, their sympathies will be with the witness. Remember, jurors will generally identify with the person who is more like themselves, and most are more similar to the average witness than to the average attorney. So, to preserve your own credibility, pick your impeachment moments with care.

The challenges of knowing when to impeach highlight another instance where there can be a large gap between what is important to you and what is important to your fact finders and perhaps also a large gap between what is fun to do as a lawyer and what is meaningful to watch as a juror. The more you’re able to take the perspective of the fact finder, the easier it is to differentiate honest and critical witness impeachment from baffling and annoying witness harassment.

About the Author

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 15 years.  With a doctorate in communication emphasizing the areas of legal persuasion and rhetoric, he has provided research and advice on a wide variety of cases. As a former Associate Professor of Communication Studies, Dr. Broda-Bahm has taught a variety of courses including legal communication, persuasion, and social science methods. He has provided training and consulting services in nineteen countries around the world and is a Past President of the American Society of Trial Consultants. He is lead author of Persuasive Litigator, a past Honoree of the ABA’s Blawg 100 list.

2013 Copyright © Persuasion Strategies, used with permission.

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