IMPEACHMENT WORK IN THE MENENDEZ BROTHERS’ MURDER TRIAL

• Date: 20 December 2000
• Pages: 233-256
• Published date: 20 December 2000
• DOI: https://doi.org/10.1108/S1521-6136(2000)0000002013
• Author: Stacy Burns

IMPEACHMENT WORK IN THE

MENENDEZ BROTHERS’ MURDER

TRIAL: THE INTERACTIONAL

ACHIEVEMENT OF FACTICITY,

CREDIBILITY AND ACCOUNTABILITY

Stacy Burns

ABSTRACT

This chapter delineates a specific domain of recurrent legal work,

lawyers’ impeachment work on cross-examination at trial. Impeachment

techniques are invoked as part of the claims-making contests between an

interrogator and adverse witness which characterize much cross-

examination. The research describes certain lawyers’ impeachment

practices in a detailed way which makes visible their endogenous

organization and contingently produced features. The study also finds that

witnesses are not without resources and sometimes resist the impugning

implications of the questioning. The chapter shows that impeachment of

an adverse witness at trial is an incessantly local and contingent

achievement.

INTRODUCTION

This study focuses on a specific and recurrent domain of lawyers’ work: the

impeachment of adverse witnesses on cross-examination at trial.1Attempting to

Sociology of Crime, Law and Deviance, Volume 2, pages 233–256.

Copyright © 2000 by Elsevier Science Inc.

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ISBN: 0-7623-0680-7

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impeach a witness on cross-examination is in many ways just the opposite of

everyday civil interactions in which persons usually enable one another to ‘save

face’ (Goffman, 1959, p. 10). It concerns the invocation and use by cross-

examining lawyers of an array of ‘front-destructive’ actions oriented to

discrediting the managed public presentation of the adverse witness (Ibid., p.

115). Impeachment is a critical trial practice which can be an effective and

sometimes dramatic device for discrediting a witness, especially by showing

that s/he has been purposefully lying. But impeachment does not just happen;

it must be made to happen in skillful ways to sway the decisions of jurors. This

paper investigates some of the ways attorneys do this work (with greater or

lesser skill and effectiveness) and how these witnesses respond in the face of

adversarial questioning and attempted impeachment.

In their daily practice, lawyers engage in many kinds of professional tasks

conducted in a wide range of settings and under varying formal and practical

constraints. Impeachment work during cross-examination at trial is readily

distinguishable from other types of professional legal activities, for example,

drafting a pleading or ‘lawyer’s letter’, writing an appellate brief or conducting

research in the law library. Although professional skills are used to accomplish

these projects, such legal work does not center on real-time interactional

techniques and practices. Impeachment work also differs from other routine

kinds of legal tasks which are accomplished interactionally, such as negotiating

with opposing counsel, advising a client or arguing a motion to a judge or an

appellate panel.

Perhaps impeachment work at trial most closely resembles lawyers’ work in

examining adverse witnesses at oral depositions. The deposition of a witness is

a method of pre-trial ‘discovery’ conducted by lawyers outside the presence of

a jury which helps to ascertain the evidence and commit the witness to a

definite account of the relevant facts and events in the case. Like trial, a

deposition is a formal proceeding in which the witness answers questions under

oath and penalty of perjury. Also like trial, deposition testimony is recorded by

a court reporter whose transcript becomes part of the permanent record in the

case and is often later used at trial as the material for attempting impeachment

during cross-examination. Most importantly, like cross-examination at trial, a

deposition involves conducting an interrogation of an adverse witness which is

highly improvisational in nature, as James and Hazard point out:

[T]he greatest advantage that an oral deposition has over other methods of discovery is the

flexibility it affords in probing a witness by requiring immediate, on-the-spot answers to

oral questions (without the chance to rehearse phraseology and content which written

234 STACY BURNS