The Impeachment Process is the only way to kill witness credibility. However, not so many teams use it correctly and can often be hurdle themselves into the “improper impeachment” zone.
As an attorney, you MUST make sure that the witness has lied by re-asking the question with, “Is it your sworn testimony today that …?” and making sure they agree to their sworn testimony. I have seen too many attorneys make the mistake of not re-asking the question or re-asking the question but ignoring the witnesses new answer.
The Impeachment Process
- Is it your sworn testimony today that _____________?
- Ex: Is it your testimony that you didn’t speak with John?
- You gave a statement prior to todays trial, correct?
- Your honor, may I approach opposing counsel and the witness with this witness’ affidavit?
- This is your witness affidavit?
- And you had 24 hours to make any changes to it?
- Is it a fair and accurate copy?
- And this is your signature on the last page?
- Please read silently as I read aloud line #(s)
- Ex: Please read silently as I read aloud lines 30-35
- Did I read that correctly?
- Retrieve the document from the witness
- Ex: Your honor, permission to retrieve the document
Entering evidence can be challenging. However, in Mock Trial, evidence is crucial to adding more weight to your side of the case. The jury often needs some type of visual element to help them out. Therefore, evidence is a great way to help the jury visualize what’s going on in the case.
Approach Opposing Counsel and the Witness
- “Your honor, permission to approach opposing counsel and the witness with which has been pre-marked as Exhibit #”
- Ex: Your honor, permission to approach opposing counsel and the witness with which has been pre-marked as Exhibit 3
- Wait for Approval
- Show Opposing Counsel
- Ex: Let the record reflect that I am showing Opposing Counsel this document
- Give a copy to the witness
- Ask questions to lay foundation
- Direct Ex: “Are you familiar with this document?”
- Cross Ex: “This is the email document that you sent John, correct?”
- Ask the witness, “Is it a fair and accurate copy?”
Move Into Evidence
- Your honor, permission to move what has been premarked as Exhibit # into evidence as D# (Defense) or P# (Plaintiff/Prosecution)
- Ex: Your honor, permission to move what has been premarked as Exhibit 3 into evidence as D2
- Ex: Your honor, permission to move what has been premarked as Exhibit 2 into evidence as P4
- *The D# or P# is in sequential order when you move exhibits into evidence. For example, if you enter Exhibit 4 as D1, and the court accepts it, and you want to enter another exhibit later on, such as Exhibit 2 as D2, and Exhibit 6 as D3, etc.
- Wait for an Objection
- Wait for an Approval
- Publish to the Jury
- Ex: Your honor, permission to publish to the Jury?
- Give copies to the Jury
Use the Evidence
- Ask your questions on the document, obviously asking open-ended questions on Direct and leading questions on Cross.
- Remember to retrieve the document when you’re finished!
- Ex: Your honor, permission to retrieve the document
What is Witness Control?
Witness Control is a concept that assists attorney in eliciting information from witnesses, especially non-responsive witnesses. It also allows attorneys to control the witnesses emotions and gain as much information from the witness as possible. For example, if a witness is being non-responsive, concepts in Witness Control allow the attorney to use the “responsiveness” of the witness to their advantage
My Personal Experience
As a witness, I hate witnesses. I am guilty of being a “bad” witness but some witnesses are just downright mean to their attorneys. But as a previous Mock Trial attorney and witness, here is a step by step guide to Witness Control.
Tips on Witness Control
- The first time a witness is non-responsive or runs (filibustering), let them be non-responsive or let them run. After he has finished, re-ask the question, putting any misunderstanding on yourself and giving the witness the benefit of the doubt with a phrase such as, “I’m sorry, my question might have been unclear…”
- If a witness runs the second time, let them run for a little bit. However, stop them with a phrase such as, “Directing your attention back to the question I had previously asked,…” This is a little bit hostile. However, it’s encouraged if you were cordial the first time.
- If a witness runs the third time, you now have enough power to use more aggressive tactics.
- If you have an expert, or someone who has previously testified in court, you can be more aggressive. You may say, “Sir/Ma’am, you’ve testified in court *x* times before, right? So you understand your role here is to answer the questions posted to you right?” and begin re-asking your question.
- If you have a normal (lay) witness, begin asking straightforward “yes” or “no” questions with them.
- If a witness runs the fourth time and you have done all of the things stated above, they’re aggressive and you need to ask the judge to direct the witness to answer the question. Just be sure that your questions are direct and the witness has actually been evading them before asking the judge to get involved. There is nothing worse for an opposing team than a judge intervening just so a witness could be more responsive in answering your questions.
- Even after all that, you’re allowed to bring a motion to strike the answer from the record and request the judge to instruct the witness to answer. If you feel like a witness is being over the top, you should ask the judge to instruct the timekeeper to stop the clock.
Why do these tips work?
As an attorney, you want to make yourself look a cordial and non-aggressive attorney. Therefore, by being a friendly attorney, the jury will see that you’re a small fish trying to ask questions to an angry shark.
If a witness is aggressive, the jury and judge will see that they are being non-responsive and hostile. Therefore, the jury and judge will deduct points on for their team. The reason why being an aggressive witness isn’t good is because why should a witness, especially an expert witness, be hostile and non-responsive unless they have something to hide.
Why are witnesses aggressive and hostile?
As you may have guessed, bad teams have hostile and aggressive witnesses. However, the reason why a witness may be hostile or aggressive is because they are trying to run you off time. Therefore, time is a key ingredient in Mock Trial because you are only allowed at max three hours in a High School tournament and points will be deducted when you are overtime. Other times, you may have asked a question that would damage their credibility. Therefore, they may be aggressive since they have something to hide.