written by guest blogger and NITA faculty member Nancy Hathaway
New lawyers want to know how to prevent surprises. My answer is: you cannot prepare away surprises at trial and you must prepare away surprises at trial. Nothing can stop a witness from suddenly forgetting or “forgetting.” But a comfort with the record makes those surprises manageable, even fun.
Once, I was litigating a temporary custody hearing in which a mother hid her children in an attic, sat on the inside steps armed with two kitchen knives, and refused to let the DCF worker and eight police officers into her home to remove her children. My theory of the case was that the mother never threatened her children with harm and overreacted to the police out of panic and fear. As I cross-examined the DCF worker, he went for it. He testified that the mother, from those inside steps, yelled, “If you come inside, I’m going to kill my children.”
Time stood still.
I knew he was freestyling with the truth. I knew it because I had a DCF investigation report, an assessment report, a police report, and the DCF worker’s dictation, none of which mentioned this rather dramatic allegation. I knew it because I was prepared. It was time for Commit, Credit, Confront.
First, the Commit: “It’s your testimony that Ms. X yelled, ‘If you come inside, I’m going to kill my children’?” He answered yes, and looked a little nervous.
Second, the Credit. I started with the DCF investigation report. I took my sweet time. “You’re required to make a report of the results of your investigation. Required by law. Required as part of your job. You’re an investigator. You make these reports all the time. In a way, this is your whole job, investigating and making investigation reports. It’s important that those reports are accurate. That they contain all of the important information. Your supervisor relies on them. The District Attorney relies on them. They’re not reports about store inventory or mileage. They’re reports about the safety of children. Decisions are made about whether children remain with their families, based on your investigation reports. Decisions are made about whether children are safe. You investigate allegations that children are being abused or neglected. If there is an important piece of information about whether children are safe, you include it in your investigation reports. If a parent threatened to kill her children, that is the sort of information that would be important to include in a DCF investigation report.” Well, yes, yes, yes.
By the time I was done getting a series of yeses out of the witness, that document was the Holy Grail. Or, as I said when training public defenders in my home state of New Jersey, I had Bedazzled that report until it glittered. That report was now important, reliable, accurate—and flatly contradicted the witness’s lying testimony. But I’m getting ahead of myself.
Last, the Confrontation: I showed the investigation report to all counsel, asked to approach, and showed it to the witness. I asked the witness to identify the document. I then asked the witness to read through the document, and show me where it said that the mother had yelled, “If you come inside, I’m going to kill my children.” I told him to take his time. And I stepped back to wait. It wasn’t there. He had to testify that it wasn’t there.
I then went through this process with each of the remaining documents the witness had authored. By the end, I felt like Perry Mason and the witness looked like a liar.
When an adverse witness lies, you may not see it coming. But if you are prepared—you know your record and your impeachment choreography—you will know how to dismantle that witness’s credibility, and have fun doing so.