Blog Lecture No. 17: Impugning a Witness’ Testimony

Ok class! We are now going to more advanced lessons…but these are not “trade secrets.” Most, if not all of what I teach you can even get from the internet.

A friend of mine once remarked, “If I buy all the lawbooks you use, I wouldn’t need a lawyer anymore. That might be a better one-time investment than hiring one on a per need basis…”

“There’s one problem with that,” I said. “We lawyers know what page it’s on…”

Anyway, let’s begin…

What does impugning a witness’ testimony mean?

The word “impugn” means to attack as false or questionable. Hence, impugning a witness’ testimony means to attack the truth of the witness’ testimony.

How does one go about it?

This is achieved by lawyers through years of practice and experience. However, there are portions of the law itself that lend a glimpse in the practical ways one can go about it.

What is cross-examination?

During trial, a party presents a witness to conduct what is called a direct examination. This is the initial questioning of such witness on such fact the lawyer wants to present.

After that comes cross-examination. Section 6, Rule 132 of the Revised Rules of Evidence characterizes cross-examination succinctly (perfectly). It states:

Sec. 6. Cross-examination; its purpose and extent. – Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.

So what can we learn from this nature of cross-examination?

Here we can see how we can test the testimony of the witness.

We can test the accuracy and/or truthfulness of his testimony. Are there inconsistencies in his testimony? Or is his testimony too perfect? When we ask for details, do these details conflict? Does the witness engage in flip-flopping?

Remember what the police general in the juetengate hearings said (as if he understood it, he was just reading it): Falsus in uno, falsus in omnibus?

For your benefit (and his), it means false in one, false in all. When a witness has made a deliberate falsehood in one material aspect, he must have done so as to the rest.

Also, did the witness just assume certain things in the course of his testimony? Those assumptions may have been mistaken…

Finally, how does his present statement fit with his past statements/actions/documents? Any inconsistencies between those?

What else can we get from this definition of cross-examination?

We can likewise look out for a witness’ interest or bias, or the lack of it when he is testifying.

Does the witness have an axe to grind against the one he is testifying against? Is that agenda sufficient reason or motivation for him to lie (and believe me some can lie very well, even fool experienced judges).

One the other hand, does the witness have something to gain from such testimony? Again, is the gain sufficient reason for him to lie in court, or in sworn statements?

Anything else?

Also, we can elicit other facts from a witness and turn him into a witness for our own purposes– a legal jujitsu of sorts.

Does he know certain facts actually favorable to us? Is his testimony edited, re-edited and re-formatted to suit whoever is presenting him. Impugning this witness can also be done for this purpose.

That’s all for now class. Be sure to look out for these matters when people try to discredit witnesses and impugn their testimonies during the next few days.

For further study, you could read The Art of Cross Examination, by Francis L. Wellman. I sure did, more than a few times already…

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