Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Impeaching Prior Inconsistent Statements

As most trial judges know, many attorneys do not know how to properly impeach a witness using a deposition or other prior inconsistent statement. This training update is intended to serve as a set of general principles and guidelines for trial attorneys to learn and follow.

The process of impeaching a witness can be accurately characterized as a “ritual.” Impeachment unfolds in a predictable order. In its most basic form, it has three distinct components (the 3 Cs):

  • Commit the witness to the direct testimony; you need a clear and definitive commitment.
  • Confront the witness with the prior inconsistent statement; do not paraphrase.
  • Complete the impeachment. Do not ask the proverbial one too many questions.

Attorneys should take care to avoid the seven common pitfalls in impeaching testimony:

1)  Never impeach in a minor area or with an irrelevant inconsistency;

2) Always first firmly commit the witness to the present in-court testimony;

3)  When impeaching with prior sworn testimony, never ask the witness if he remembers giving the prior testimony. He might say no. Tell him he gave it;

4)  Always impeach with tight, leading questions compelling the witness to give an affirmative answer;

5) Do not show the witness the prior statement until you must. And when it’s time to show the witness the statement, never stand next to the witness with your back to the jury;

6) When questioning with a transcript, show the jury your preparation and confidence by alerting the witness to the time, place, page number and line number while actually reading the question and answer verbatim;

7) Finally, always drive the point home before moving to another area (i.e., take a pause for you and the jury to savor the moment).

Judge Alan Pendleton
10th Judicial District

For the complete text of Judge Pendleton’s tip, with citations, visit the Minnesota Judicial Training & Education Blog at

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