Robbins: Impeachment of witnesses
During the Trump administration, impeachment was an all-too-common theme.
As will be reflected in our history books, the former commander-in-chief was only the third U.S. president to be impeached. Had Richard Nixon not resigned before the hammer of impeachment fell, there is little to no doubt the number would be four. Trump, as you likely know, holds the rare distinction of being the only president to be twice impeached and the word “impeachment” dominated much of his fractious term in office.
But that is not what this column is about.
While “impeachment” lives in the Constitution as the means and process by which the president, vice president, and “all civil officers of the United States” may be removed from office for the offenses of “treason, bribery, or other high crimes and misdemeanors,” there is a much more common species of impeachment than dragging an office-holder from office. “Impeachment” is, in fact, an everyday affair in law.
Impeachment in the context we are after is the means by which a witness is discredited. To “impeach” a witness is to challenge the witness’s credibility, to show that she or he or is not telling the truth or else does not have a reliable basis for their testimony.
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As I have mentioned more than once in these columns, there are rules for nearly everything in law. In this particular instance, the rules of evidence govern what type of questioning may be used to impeach a witness. Generally, unrelated evidence that the person is a” bad person” and therefore untrustworthy, is not allowed.
An example here might prove instructive.
Let’s say the case in question involves an accident. It is undisputed that a car struck a pedestrian. What is in dispute is who was at fault. Let’s say further that the driver of the car is being sued, the allegation being that she failed to stop at a stop sign and, instead, rolled through the intersection and struck and injured the pedestrian.
In her defense, the driver has lined up witnesses, once of whom was sipping a pumpkin spice latte at the corner Starbucks. The witness claims to have been seated at a window and further claims that she happened to be gazing out right at the intersection at the moment that the accident took place. Her testimony on direct examination is that the driver came to a full stop and only when she started up again did the pedestrian dart out in front of her. If the witness’s account is accepted, it would clearly help the driver in her defense.
But let’s say the plaintiff’s attorney has done a little digging. He has established that the accident occurred at precisely 5:17 p.m. on a cloudy Tuesday morning. Let’s say, too, that he has dug a little deeper and discovered that this particular witness works nearby — a five-minute walk, that she clocks in and out of work, and on the particular Tuesday in question she clocked out of work at 5:14 on the dot. To even make it to the Starbucks by the time the accident occurred, she would have had to run; doable, but just barely.
The questioning might go like this:
Attorney: “You were at work the day of the accident, is that right?”
Attorney: “Do you generally wear heels to work?”
Witness: “Generally, yes.”
Attorney: “Did you wear heels to work that day?”
Witness: “I don’t remember specifically. Probably I did.”
Attorney: “Do you know what time you clocked out that day?”
Witness: “No, I…”
Here the attorney shows the timecard and says, “Do you see it says you clocked out at 5:14?”
Witness: “Um hmm.”
Attorney: “How long does it take to walk from your office to the Starbucks?”
Witness: “I don’t know. A couple minutes?”
Attorney: “If I told you that I walked it and it took me five minutes at brisk pace, would that surprise you?”
Witness: “No, I … I don’t know.”
Attorney: “You clocked out of work at 5:14 and the accident took place at 5:17. Did you run to the Starbucks?”
Attorney: “Did you run in your heels or did you take them off?”
Witness: “I didn’t run.”
Attorney: “Is it possible that instead of actually witnessing the accident, maybe you got there just after the accident, after the pedestrian was hit?”
Witness: “Maybe, I… yes, maybe.”
Attorney: “And you didn’t actually see exactly how it happened, did you?”
Witness: “That’s possible, I guess.”
That, ladies and gentlemen, is impeachment. From the French “empêcher,“ which means to prevent or hinder, perhaps in both applications of the word in English, the intent is to prevent or hinder an injustice.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926.4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com, and coming soon, “Why I Walk So Slow.”