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  • Writer's pictureBrian Foley

Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series Rule 607 (Impeachment)

Woodlands Criminal Defense Attorney - Brian Foley

Rule 607 says that any party may impeach a witness. You may be asking, "What does impeachment mean?" No, it's not like what happened to Bill Clinton, or Donald Trump, or Andrew Johnson (if you're a history buff). In short it means attacking the witness's credibility. Impeachment in the context of the rules of evidence means explaining that the witness is wrong.

When a witness says something that you think is a lie or maybe just that they are mistakenly telling a lie, then it is time to impeach. I suppose if the witness is someone that you want the jury to like you could do what's called refreshing recollection. But Rule 607 doesn't restrict you from impeaching anyone at any time. As a prosecutor I used to impeach a witness of my own as a last ditch effort if I really just couldn't do anything else. This was typically in a family violence context with an uncooperative witness that I had to call to the stand anyway.

On cross examination it is definitely the preferred method of correcting errors. A good impeachment has a few steps. One is preparation. You have to know everything that the witness might say and have a plan for what to do if they go off the rails. Two is having the documents readily available. I always break up my trial file into folders organized by witness. If you have it organized in some other way you will be fumbling for all the right papers during your questioning. If it means I need more than one copy of the offense report because I might cross examine more than one witness on it then so be it. I'd rather have duplicates and be prepared. Three is the method of impeachment, meaning following the Rules found in TRE 613 and the style of your impeachment. I would never impeach a witness from a seated position. You should approach the witness where they are and be holding the document you wish to confront them about. You should look at the paper and read the quote as you ask the question so that the witness is worried and feels like there is no way to deny what you are saying. Then if they deny it anyway force them to read it to the jury and claim that whoever wrote it in the document was a liar. They will be the one that looks like a liar.

There are few things more exciting for a trial lawyer than a good impeachment. There are few things more frustrating for a good trial lawyer then to watch a bad trial lawyer attempt an impeachment and fail. Don't refresh the recollection of a hostile witness. There is no requirement to attempt to refresh first. You should move straight to impeachment.

Generally evidence that is offered for impeachment is not "substantive evidence." This means that if you are the one with the burden of proof and you offer some answer to a question only for impeachment then you had better be sure that it isn't the only proof you have on a certain element of the charge. If no other supportive and non-hearsay evidence is offered on an element of the charge, then you should be subject to a motion for directed verdict where the judge dismisses the action entirely.

RULE 607 - Any party, including the party that called the witness, may attack the witness’s credibility.


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