Beyond the Bar
| Publication year | 2021 |
| Pages | 18 |
Impeachment by Contradiction
By Warren Moise
We all know that there are many ways to impeach a witness's credibility, right? For example, it can be done through introducing evidence of criminal convictions, by introducing party admissions, by an inference of impropriety from spoliation of evidence - you name it. This column is devoted to yet another type impeachment, namely impeachment by contradiction.
So what exactly is impeachment by contradiction anyhow?
This type impeachment allows a cross-examining lawyer to show that a witness has changed his testimony about something in the case. The rationale is simple: if the witness were wrong (whether mistaken or lying) about one part of her testimony, possibly she was wrong as to some of the other things she testified about on the witness stand. This is (roughly) the same theory underlying the common-law doctrine falsus in uno, falsus in omnibus. There's no specific rule in the Federal or South Carolina Rules of Evidence discussing "impeachment by contradiction." Rather, it's a common-law rule in use for centuries.
A useful tool
The common law recognizes that inconsistency itself can be valuable information for a jury to use in deciding whether the witness is believable. As stated by the great South Carolina trial (and later appellate) judge, Ralph King Anderson, Jr. in his own inimical style, "Quint-essentially, an operative factor in evaluating credibility of a witness is inconsistency." Small v. Pioneer Machinery, Inc., 494 S.E.2d 835 (S.C. Ct. App. 1997) (Anderson, J.). In Small, Judge Anderson described the importance of exposing inconsistency in testimony and why it's so important to the search for the truth:
Inconsistencies in the testimony of witnesses [are] common . . . in a trial. Subjecting a witness to the vicissitudes of direct and cross-examination often reveals some variance in testimony ...... A trial epitomizes a search for the truth. .
. . The fact finder is imbued with broad discretion in determining credibility or believability of witnesses.
Id.
The scope of impeachment by contradiction is broad: "Subject to such limits, it is worth noting that impeachment by contradiction may properly attack all kinds of testimony, whether given on direct or on cross, and indeed all evidence, as well as inferences suggested by evidence or arguments of counsel interpreting the evidence." Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 6.58, at 662-1 (1994) (quoted in McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995)).
The value of the...
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