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March 1999 Impeachment in White-Collar Crimes: Practical Ideas & Suggestions By Michael D. Monico
Impeachment is the crown jewel in the cross-examiner’s coronet. Litigators live for those moments when they can approach and confront an imperious witness with a prior inconsistent statement or an undeniable fact that will expose the witness as an intolerable liar. Impeachment that simultaneously advances the merits of the examiner’s case represents the priciest gem of all. Getting there requires preparation, application of common sense, and, sometimes, plain good luck, though the two former elements tend to breed the latter. But wait . . . In discussing practical ideas about impeachment, the first consideration is whether to impeach the witness at all. A shrewd defense attorney does not go “hell bent for leather” after every witness who had the misfortune to be subpoenaed by the prosecution. Not every witness is thrilled with the prospect of testifying against a fellow citizen. Some may even want to help, especially where the witness, as in many white-collar cases, is not a victim or cooperating witness. It is important that cross-examiners not impeach because they have the means, but because doing so means they will help their case. It does well to remember that jurors sometimes sympathize with a witness, even an impeached one, and more so if that person is attacked for no apparent reason. Always impeach with a purpose that, if not recognizable immediately, can be explained to the jury during closing argument The notion that an impeachable witness ought not be impeached commonly arises in white-collar criminal cases. Juries often do not see white-collar cases the same way they view cases involving violence or drugs. The more that a criminal case sounds like a civil dispute, the less likely the jury is to initially sympathize with the victim or dislike your client. Assess the impact each witness will make on the jury. Impeaching a witness whose testimony supports one or more aspects of your defense is like adding poison to your own recipe. Moreover, in white-collar criminal cases the “eyewitnesses” often come in the dress of documents. Defending the case will not require an attack on some warm-blooded individual who has placed the defendant at the scene of the crime or identified the defendant as the one who pulled the trigger or sold the drugs. Where the prosecution proves its case by directing the jury to documents purporting to show that the defendant hid or twisted facts or improperly paid or received money, the defendant may even admit the acts alleged in the indictment. The issue will be whether the defendant acted in good faith or without fraudulent intent. Thus, though the prosecutor may call witnesses to establish direct evidence of the crime, and some of them, like co-schemers and co-conspirators, may be vulnerable to impeachment, the first job of defense counsel is to determine whether impeachment is necessary. For it is not without risk. Impeachment is a tricky device that may end with the prosecutor solemnly protesting, “Your Honor, objection! That’s not impeaching. I move to strike that entire line of questioning.” You may find that the majority of the government’s witnesses need not be attacked. Rather, a businesslike approach, sprinkled with charm, is sometimes the answer. Making the witness feel comfortable and at ease may be the best way to extract favorable testimony showing your client’s good faith, hard work, pride in business, or how he acted favorably and in conformity with the behavior of others in the industry. These details are often inconsistent with the inferences that the prosecutor wants the jury to draw, which usually rely on exaggerated depictions of the defendant as corrupt. You may be able to develop facts through a cross-examination that does not impeach the witness but lays the groundwork for your theory of the case and your closing argument. Thus, it may pay at times to keep the venom in the jar. Save the looks of suspicion and disbelief for those witnesses who claim to have direct and damning evidence of your client’s misdeeds. Preparation Ultimately, since impeachment is a necessary tactic at some point in almost every white-collar criminal defense, the first step is to be well armed. Early and aggressive discovery is essential. Do not rely on the discovery provided by the government. Request additional information that goes directly to witness credibility. Use your common sense: imagine what kinds of documents might be created under the circumstances of the case and ask for them. File motions that call specifically for every possible type of impeaching document.1 Ask the court to approve early return of trial subpoenas on third parties by explaining that it will prevent delay.2 Enclose not only the statutory fee, but a letter inviting the keeper of the records to call you so that he or she can possibly avoid having to appear in court to deliver the requested records. Use the opportunity to ask for their help in understanding the information contained in the documents. Often overlooked is the need to prepare for witnesses who may not testify. Move in advance for the hearsay statements of a declarant who may not be in court, but whose words may be relayed as statements by an alleged coconspirator or co-schemer.3 Every circuit has a different name for it — the Seventh Circuit refers to it as a “Santiago” proffer — a motion calling for the government to disclose prior to trial, the foundation for the admission of any co-conspirators’ statements. Once you have received your information, become as familiar as possible with the witnesses’ statements; at trial you will want to recognize inconsistencies with alacrity. To help yourself marshal the information and appear in control, number every paragraph and every line of important pages so that you can quickly find the prior statements that conflict with the witnesses’ trial testimony. Smoothness shows confidence. Confidence expresses strength. At trial, the lawyer who effortlessly retrieves an impeaching document from the files creates a sense in the jury that the defense understands the case better than the prosecution. Fumbling around and searching through numerous papers distracts the jury from the points you are trying to establish. It disturbs the flow of the examination, allows the witness time to rethink, and conveys an impression that your defense is being put together on the fly. Be creative. One incident of a litigious society is that it is not uncommon for a witness in a criminal case to have also been a party in a civil suit. Search the court files in every jurisdiction where the witness may have been sued or filed suit. Get the pleadings. Call opposing lawyers who may have deposed the witness. Get their impressions along with copies of deposition transcripts. Once you determine that you will need to impeach a witness, plan well in advance. Think chess — anticipate potential explanations and be ready for them. Even if fortune did not bestow a damaging prior statement, think about what the witness is likely to say. Consider those aspects of the testimony (or as much of the anticipated testimony as you can glean from the discovery) that abuse common sense. Jurors expect certain behavior to follow in given situations. Defense counsel’s job is to point out where logical expectations have not been met. A witness’ prior statements, criminal history, and other traditional avenues of impeachment are integral to the decision of how to approach each of the government’s witnesses. But the most important factor is not the number of prior statements you have in hand — it is your preparation, creative ideas and appreciation for the value of a witness’ testimony that will set your cross-examination apart. As in Comedy — the ‘Set-Up’ is Key Not unlike the telling of a good joke, creating the “set-up” is as important to the impeachment as the impeaching punch line itself. It gives the impeachment immediacy; it makes the jurors sit back and take notice and understand at once the significance of the impeachment material. Thus, after gathering together all the available information about the witness, spend some time focusing on the appropriate “set-up” questions. They have two main purposes. First, these are the questions that will lock the witness into a position that your impeachment is designed to refute. Second, these questions serve to highlight the significance of the eventual impeaching material. Try to walk the witness into a circle that has no easy escape. Resist the temptation to rush. Keep your questions orderly, logical and in simple sentences. Where possible, frame the questions in a way that does not divulge the punch line. Distract the witness by playing up to his or her vanity or the appropriateness of his or her own conduct. Lull the witness into a rhythm of comfort by asking a series of questions that naturally elicit the same “yes” or “no” response. Though there are occasions where you may choose to conduct the impeachment and then explain what you have done during closing argument, always consider whether your set-up questions can do the explaining long before closing argument occurs. ‘Fruits of Preparation, the Set-Up, and Luck’ A striking example of the power of early third-party discovery and a well-conceived set-up occurred in a criminal case brought against the president and general sales manager of a large company. The government charged them with conspiring to rig bids in the waste hauling industry. Through pretrial discovery, defendants learned that the government’s chief witness, who had received immunity for his cooperation, had sued for damages in state court as the result of an automobile accident. The accident occurred after the alleged crime but before the criminal trial. The witness had claimed in the civil suit that he sustained serious injuries to his head. To maximize his damages, he swore at his deposition and in his sworn answers to interrogatories that the blow had effected his memory. He had even seen a physician to treat his memory problem, and had taken a test by a psychologist that demonstrated how his memory had been impaired. Armed with the complaint, the deposition, the interrogatories, and the test from the psychologist, the defense focused their attention on the set up. First, they diverted the witness’ attention by commenting on his apparent remarkable ability to recall — with precision — damaging conversations with the defendant. They then asked questions to highlight the importance of his memory.
A. That’s right. Q. The conversation that you claim occurred three years ago with my client took approximately ten minutes. A. Yes. [Counsel attempted to exclude the possibility of any assistance to the witness’ memory.] Q. You didn’t take any notes of the conversation at the time, did you? A. No. Q. You didn’t rush home to write down what you heard, did you? A. No. Q. You didn’t record the conversation with a tape recorder? A. No. [Defense counsel then excluded the possibility of a surprise government witness.] Q. No one else was standing next to you? A. No. Q. So, as far as you know no other person ever heard the words you claim Mr. Jones said to you on March 10, is that right? A. Yes. Q. So, all we have to rely upon regarding what happened and what was said on March 10, 1993 is your memory? A. My memory and my word. Q. Did you say “your word”? A. Yes. The defense then questioned the witness at length about the accident, his treatment, and his claim for money damages (which complemented the defense theory that he lied to obtain immunity, just as he would lie for money). The defense had the witness reconstruct his visit to the psychologist and detail his claims of brain damage and memory loss, in order to establish a foundation for calling a defense expert psychologist. Over the government’s objection the defense expert testified that he was familiar with the memory test and he was able to interpret the results. He told the jury that according to this test, if there were one hundred people in a room, the star witness would be among the ten people with the poorest memories, and in that group of ten, he would have the poorest memory. Thus, the defense took advantage of thorough trial preparation (and good luck) to impeach the principal witness in the case. But they also maximized the impeachment through the set-up — locking the witness in, and giving the impeachment punch line immediate impact through questions accentuating the witness’ remarkable recall knowing that the witness would eventually face his prior statements where he complained of having an impaired memory. Such good fortune does not come with every witness. However, even when you do not strike gold, it is possible to build your closing argument with smaller nuggets and the use of well-prepared impeachment. Think of Impeaching the Case, Not Just the Witness Counsel too often approach impeachment myopically. They pore passionately over the documents, scrutinizing (as they should) every last line, anxious to convert every misstep into a treasured prior inconsistent statement. Then they stop. But impeachment, from the defendant’s point of view at least, should not only be directed at the government’s witness. Try to aim the impeachment at deconstructing the government’s case. In fact, when these two concepts do not coalesce the practical cross-examiner must evaluate the usefulness of the impeachment altogether. Thus, while a prior inconsistent statement may show the witness to be untruthful or inaccurate, it is not the only way to denigrate the government’s case. Impeachment of the government’s case can be accomplished, for example, by confronting the witness with a zinger of common sense as opposed to a written prior statement. For example, in a case where the prosecution had charged suburban policemen with smashing their own cars into one another and then preparing false accident reports and insurance claims, the government called an FBI agent to testify about his brief contact with one of the defendant police officers. The agent testified that when he confronted the defendant and identified himself, the defendant gave a false address. The government was prepared to argue that this exposed the defendant as a liar who was disposed to file a false insurance claim for damage to his car. In cross-examining the agent, the defense tried to get the point across not that the witness was lying, but that there may have been an innocent explanation for the defendant’s alleged failure to give his correct address and that the prosecutor jumped to an inappropriate conclusion.
A. Yes. Q. You have worked as a law enforcement officer for the last eight years. A. Yes. Q. About the same amount of time that [the defendant] has worked in law enforcement? A. Yes. Q. Could you please tell us where you live? Government: OBJECTION Q. If this witness prefers not to tell us his address, I will withdraw the question. Q. Sir, simply tell us yes or no whether your telephone number and address are listed in the telephone book? Government: OBJECTION Court: Overruled A. No. The defense did not seek to impeach the agent or personally attack his integrity. Rather, they impeached the government’s case by suggesting that law enforcement officers are often reluctant to identify their addresses. The defense also exposed the silliness of the prosecutors in relying on such unsound evidence. Create a Chart During Cross-Examination Jurors remember what they see long after they remember what they hear. Consider using a large, blank, foam board and thick permanent marker during your cross-examination. Give your chart an exhibit number. For example, whenever the witness has admitted to a number of previous misdeeds, plot the information on the chart. This can be especially effective when the witness has received leniency in return for his cooperation with the prosecution. You can use the chart in the closing argument to establish the many doubts raised about the credibility of the government witness. Keep it simple. Along the left-hand side you can record the years since the witness’ first offense. Then to the right of each year will go the bad acts committed during each year (whether charged as crimes at the time or not — since they are relevant to his deal for leniency). How far will the judge let you go? Perhaps you can ask the witness to step down and personally write “bank fraud” next to the particular year. It can grow quite dramatic as the witness is reduced to not only speaking, but creating a written record for the jury of all his past misconduct. Of course, by wielding the magic marker yourself, you have more control over how the chart looks and what it says. Think things through in advance. Use a few descriptive words to describe the conduct accurately without provoking an objection. That conviction for bank fraud, for instance, may be described as “LIED TO BANK.” After you have completed the chart, have the witness confirm its accuracy:
A. Yes, I think so. Q. Are there any other crimes you have committed that you have forgotten to tell us about? A. I don’t think so. Such a chart may also be useful in the situation where you plan to call an expert witness regarding the effect of the Federal Sentencing Guidelines. Marty Pinales explained this technique last year in The Champion.4 You may take your expert through the chart as he or she helps the jury understand exactly the benefits afforded to the government’s witness. Use of Voir Dire of a Document In many white-collar criminal cases, the direct examination of an important government witness may go on for hours, if not days. You can interject some valuable impeachment during the direct examination by requesting voir dire on a business record the government seeks to introduce through the witness. Reserve the opportunity to question the witness regarding the substance of the exhibit during cross-examination, but you may be able to cast early doubt about the witness’ credibility by attacking the reliability of the records he claims to authenticate. For example, if the government offers a business expense report to establish the witness’ (or your client’s) presence at a particular meeting on a particular day, you may question the witness about his or her practice of recording information on expense reports. People occasionally fudge such reports for their own benefit (common sense, again). If so, that may become a theme worth revisiting — that this witness will lie for his personal gain. Moreover, very often the prosecution will not anticipate a request for voir dire. The witness may not be prepared for it and you may disrupt the flow of the direct examination and apprise the jury early on that this is a witness they should not trust. Beware of Fed. R. Evid. 806 Pursuant to Federal Rule of Evidence 806:
At the same time, the well prepared defense attorney can invoke Rule 806 whenever the prosecution seeks to introduce hearsay statements, particularly statements from an unindicted coconspirator not called as a witness. Rule 806 allows the defense to impeach that non-testifying declarant’s statements as if the declarant had testified. The most likely use of Rule 806 as a tool to impeach a declarant’s statements will occur in prosecutions involving the use of coconspirator or co-schemer statements that are allegedly in furtherance of the charged conspiracy or scheme. For example, a typical criminal antitrust or a Securities and Exchange Commission (SEC) investigation that drags on for years and implicates your client’s business associates or competitors may provide an opportunity to prepare for the use of Rule 806. In your pretrial preparation, try to acquire affidavits from your client’s competitors or business associates in which they deny engaging in any illegal conduct with your client or state affirmatively that they always acted fairly, competitively and in good faith in conducting their business affairs and, to the best of their knowledge, so did your client. At trial, if the government offers statements from those persons through the testimony of another witness, you may then be allowed to offer these affidavits to impeach the substance of the hearsay statements. The government may object that they will not have the opportunity to confront these witnesses, but that objection should be denied under Rule 806. Similarly, you may be able to cross-examine the government witness directly about statements made by the non-testifying declarants that are inconsistent with the statements presented at trial. Most Important Traits Use pretrial discovery aggressively. But do not assume you must impeach every witness against whom you obtain impeachable material. The successful cross-examiner knows that when not to impeach a witness is as important as knowing when to do so. Creative preparation will give you confidence in approaching each witness. Your confidence will be apparent to the witness, as well as to the jury. Should you decide that impeachment is appropriate, make sure you have a firm command of the prior witness’ statements and can access them efficiently. Remember that sometimes impeaching material does not arise out of a prior inconsistent statement, but from common sense. Preparation and common sense are the two most important traits of every successful cross-examiner. Notes 1. See Exhibit A, Defendant’s Motion For Disclosure Of Specific Impeachment and Exculpatory Information and Exhibit B, Defendant’s Motion For In Camera Review Of Presentence Reports For Government Witness. 2. See Exhibit C Defendant’s Motion For Early Return Of Trial Subpoenas. 3. See Federal Rule Evidence 806. 4. See Martin S. Pinales, Your Best Friend Could Be Your Best Witness, The Champion, April 1998, at 14 (Regarding the use of defense attorneys as expert witnesses to establish the benefits received by government witnesses). 5. Fed. R. Evid. 801(d)(2)(E) refers to statements of a coconspirator “during the course and in the furtherance of the conspiracy” as being statements that are not hearsay. | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
