Chapter 9 - § 9.8 • REHABILITATION OF WITNESSES WHOSE IMPEACHMENT IS RELATED TO IMPLAUSIBLE OR LOGICALLY INCONSISTENT BEHAVIOR

• Jurisdiction: Colorado

§ 9.8 • REHABILITATION OF WITNESSES WHOSE IMPEACHMENT IS RELATED TO IMPLAUSIBLE OR LOGICALLY INCONSISTENT BEHAVIOR

§ 9.8.1—Introduction to Rehabilitation After Demonstration That the Witness's Behavior Is Implausible or Logically Inconsistent (Non-Syndrome Explanation)

The condition precedent to this form of rehabilitation is impeachment by pointing out some aspect of the witness's behavior or testimony that appears logically inconsistent. For example, witness makes a claim that is belied by subsequent behavior. She claims abuse by defendant, yet wrote a letter commending defendant's professionalism after the alleged harassment. Witness claims sexual assault by defendant yet continued to wear his ring and date apparently happily after the assault. Witness claims systemic abuse at the hands of the defendant, yet never reported it.

In these cases, the role of rehabilitation is to explain the apparent inconsistency. This can be done by contextualizing the circumstances surrounding the behavior. This rehabilitation is separate from rehabilitation based on the witness suffering some category of syndrome (discussed below in § 9.9).

§ 9.8.2—Sample Examination to Explain Implausibility Impeachment (Non-Syndrome Explanation)

Plaintiff (proponent's witness, or victim "PW"), represented by plaintiff's counsel ("Pls. Counsel") claims sexual harassment by Defendant. On cross-examination and by way of impeachment, defense counsel brings out that just after the alleged harassment event, PW wrote a letter commending Defendant's work and professionalism. Witness has been impeached by the suggestion that the testimony concerning harassment is "implausible" in light of...