Impeachment of a Witness

Firm 20B Class of 2017 KSL

INTRODUCTION.

In this essay, we are going to discuss the definition of impeachment, it’s legal and statutory basis, who can impeach a witness, the purposes of impeachment, when a witness can be impeached and the process of impeaching witnesses. We are also going to give an example of how a witness can be successfully impeached using the herein annexed question.

What is impeachment?

Impeachment is the action of calling into question the integrity or validity of something.[1] Impeachment of a witness is therefore the process of calling into question the credibility of an individual testifying in a trial. Under common law, impeachment is the process of introducing circumstantial evidence to suggest a likelihood that a witness does not understand the need to tell the truth, is lying, the testimony is incomplete or the witness is mistaken.

LEGAL PROVISIONS

While impeaching a witness, the following legal provisions are adopted as a guide:-

- The Constitution of Kenya 2010 and specifically Article 50 on fair hearing

So as to accord a fair trial, one is entitled to cross examine witness of either party during trial.

- The Evidence Act, Cap 80 Laws of Kenya 

It explains who can impeach a witness, when, why and the process to be followed for an effective impeachment exercise.

Who can impeach a witness?

Any party may impeach the credibility of a witness by giving evidence to suggest that the witness direct testimony is unworthy of belief.[2]However, Section 161 (1) of the Evidence Act states that the person who calls a witness cannot put any questions to the witness with an aim of discrediting him without the consent of the court.[3]

Courts have been of the opinion that the laid down procedure should be followed when impeaching a witness. In Edusei Asili Malema v Republic[4] The appellant in his appeal raised the issue that the learned Judge erred in law in allowing two of the witnesses to be treated as hostile witnesses without following the proper procedure. Regarding the procedure for declaring a witness to be hostile, the court noted that section 161(1) of the Evidence Act which gives the court discretion to permit the person who calls a witness to put any questions to him which might be put in cross- examination by the adverse party and section 163(1) (c) which categorizes the evidence which may be called by an adverse party or with the consent of the court, by the party who calls him for impeachment of his credit are relevant. 

In this case, the record showed that Faith, a sister of the deceased gave evidence which contradicted the prosecution case. Before she completed her evidence Mr. Onderi, the learned counsel merely informed the trial Judge that the witness had completely deviated from what is recorded in the police statement and that he did not wish to subject her to cross examination since she was a child.

The court noted that the trial Judge erred in law when he failed to evaluate the evidence of Faith who tended to support the appellant’s case. The Appellate court held that when the evidence of the two witnesses and the appellant is considered in the light of the circumstances surrounding the case, they inescapably conclude that the prosecution case was eminently credible and the learned trial Judge cannot be faulted for disbelieving the defence case. 

Why impeach witnesses?

Before impeaching a witness, one must know why they are doing it. The purpose of impeachment is to show that the witness is lying about a material fact aimed at hurting your clients’ case and to subsequently discredit their testimony so that the court may disregard it or give less weight to it. 

When a witness is cross-examined he may, in addition to the questions asked during cross- examination be asked any other questions which tend:-

a) To test his accuracy, veracity or credibility;

b) To discover who he is and what is his position in life;

c) To shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.[5]

It was reiterated in the case of Shiguye Versus Republic (1975) EA 191[6]that the effect of declaring a witness as a hostile witness is to render his entire evidence untrustworthy. The court stated that “After having declared Shizya a hostile witness, the effect would be that Shizya was an unreliable witness, whose evidence would not be accepted by a court. All parts of the evidence of a witness declared hostile would be rejected as untrustworthy, not only some parts”

Sergon J noted in Law Society of Kenya Versus Faith Waigwa& 8 others[7]that cross- examination is intended to impeach the credit worthiness of a witness. In cross-examination a witness may be asked questions tending for example to expose the errors, contradictions, omission ns and improbabilities. In the process, the veracity of a witness’s averments is tested.”

When to impeach a witness

Impeachment is done during cross examination after the witnesses’ testimony has been harmful to your case. One will seek to challenge their evidence as inconsistent, imporable or unrealistic, or you will challenge the witness as either being mistaken or untruthful.

Instances of impeaching a witness

Before impeaching a witness, the trial advocate must be in a position to prove what they allege should the judge call upon you to do so.[8] This is aimed at protecting the witness from attacks predicated on unverifiable facts. This principle is known as the ‘Browne versus Dunn’ rule[9]. 

Section 163 of the Evidence Act goes ahead to give ways through which the credibility of a witness may be impeached by the adverse party, or, with the consent of the court, by the party who calls him:-

(a) By the evidence of persons who testify that from their knowledge of the witness they believe him to be unworthy of credit;

(b) By proving that the witness has been bribed, or has accepted such offer, or has corruptly received any inducement to give his evidence;

(c) By proving former statements either written or oral which are inconsistent with any part of his evidence which is liable to be contradicted;

(d) In a rape case or attempted rape, it may be shown that the prosecutrix was of generally immoral character (this specific provision has since been declared to be bad law)

Grounds of impeaching a witness

A witness may be impeached on the following grounds:-

a) Impeachment based on prior inconsistent statements; and

b) Impeachment on grounds of inducement. (bias against a party, motive and interest in the outcome of the case)

c) Calling of another witness to impeach.

d) Impeachment as to credibility;

e) Impeachment based on the character of the witness;

a) Impeachment on prior inconsistent statements

Impeachment of a witness is done during cross examination and one way of impeaching is through the use of prior inconsistent statements. These are representations made in the course of giving evidence that is inconsistent with the evidence given by the witness at trial. They may be oral, written or inferred from conduct.[10]

Section 155 of the Evidence Act states that a witness may also be cross examined on a document he produced as evidence or on a previous written statement. However if the intention is to bring out a contradiction between what he said under oath and what is contained in the written statement, the same must be shown to the witness.[11]

There are three steps in impeachment of a witness on prior inconsistent statements: confirm, credit, confront[12]. Under common law, a witness may be impeached by proving that the witness has contradicted themselves through evidence of prior acts or statements that are inconsistent with testimony given on direct examination. 

i) Confirm(repeat)

The first step is confirming the witness to their evidence in chief. This is done through two methods[13].

a) The traditional method is where the examiner restates the testimony given in examination in chief accurately. The examiner should use short leading questions so as to retain control over the witness.

b) The alternate method, also known as the elegant way, is where evidence in chief is rephrased in a language beneficial to the cross examiners case. 

ii) Credit(reliability of the document)

After confirming, the examiner asks authenticating questions to ensure that the statement was indeed made by the witness. At this stage, one seeks to establish the reliability of the document one is about to use to impeach the witness

iii) Confront(read verbatim)

The inconsistent statement is then put to the witness in their own words. The examiner should bring out the contradiction in a clear and concise manner.

Factors to consider before impeaching through prior inconsistent statements

1. Do not ask questions with minor inconsistencies[14]

2. Maximize cooperation from the witness. This is achieved by beginning with questions that do not challenge or threaten the witness. For example start with questions on matters that are not in contest between the parties.

3. As the cross examiner, have a strategy. Organize the structure of the questions in a good order to achieve effective impeachment.

b)Impeachment on grounds of inducement (bias against a party, motive and interest in the outcome of the case)

Under these approaches, evidence is brought to show that a witness has bias for or against a party, financial gains, witness has a motive and interest in the outcome of the case. Credibility of key witnesses is important and evidence showing they are biased will form a basis of prejudice.

Bias may be induced by the witness’ like, dislike, or fear of a party, or by the witness’s self-interest. Interest refers to the possible benefit, or detriment, the witness may derive or suffer from the outcome of a particular case.

In Vazquez v. Martinez,[15]the Court of Appeal in Florida approved of the plaintiff’s actions when he proved that the defendant’s expert witnesses were paid almost 700,000 dollars by the defendant or her agents. The court was of the opinion that it was in order to attack a witness by exposing potential bias of the witness by demonstrating economic ties to the defense. 

Motive is the urge or drive that prompts a person to think and act in a certain way.[16] The witness being cross-examined may have a professional stake in a matter before a court of law or any other reason that would make him or her prefer a favorable outcome of a case.[17]

c) Impeaching by calling another witness

This technique is rarely used in our courts. However it is provided for in s. 163 of the evidence Act. Another witness may be called to impeach the witness especially on grounds of impeaching character.

d) Impeachment as to credibility

A witness is impeached by asking questions that seek to attack their credibility. Section 158 of the Evidence Act provides that questions attacking the credibility of a witness shall only be permitted if the person asking the questions has reasonable grounds for thinking that the imputation is well founded. The court may forbid questions which it considers scandalous, indecent, insulting or annoying[18]

There are further provisions regarding questions as to the credibility of the witness. Where the effect of the question is only to affect the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer, and may if it does not so compel him, warn that he is not obliged to answer.[19] When deciding whether to compel the witness to answer the questions put forth, the court shall have regard to the following considerations:-

a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(c) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.

It is important to note that the court may, if it sees it fit, draw from the witness’s refusal to answer, the inference that the answer, if given, would be unfavourable to the witness.[20]

e) Impeachment based on the character of the witness

Character is defined by the Evidence Act to include both reputation and disposition.[21] Part X of the Evidence Act deals with the question of character evidence which would more often than not arise during cross examination.

Section 55 of the Evidence Act provides for bad character in civil cases “In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is inadmissible except in so far as such character appears from facts otherwise admissible”

Section 56 of the Evidence Act provides for bad character in criminal cases. It states that ‘ In criminal proceedings, the fact that the accused person has committed or been convicted of or charged with any offence other than that which he is then charged, or is of bad character, is inadmissible unless the set out exceptions are satisfied.”One of the exceptions is where the accused introduces evidence of his good character. Where an accused seeks to gives evidence of his good character for purposes of showing that it is unlikely he committed the offence, he raises by way of defense an issue as to his good character. He may be cross examined on that issue to show the contrary.[22]

When one decides to undermine a witness, they need to elicit from them the favourable evidence that they provided first and then continue to discredit them. It is important when cross examining witnesses that the questioning is constructive to obtain support for your story and destructive questioning to challenge a version of the story which is not accepted by you. In addition you should look at any inconsistencies with what the witness has said during trial and what they have said in a prior statement. If you notice any differences you should ask the witness to repeat the fact which they gave in the examination in chief and then read out the part of the previous statement which is inconsistent and ask the witness if they made the statement. This will show that what the witness has said is inconsistent and it will assist you in challenging your opponent‘s case. 

Impeachment through bad character may be done in the following ways;

i. Prior conviction[23] - A witness can be cross-examined on his or her prior conviction if it affects the credibility of the witness. Prior conviction can also be used to show that the witness is of immoral character, for example if the witness has a prior conviction of rape or attempted rape. If the witness denies the prior conviction, they may be proved with extrinsic evidence.[24] In George Marwa Mwikabe v R[25]Judge D.S Majanja, held that evidence to prove previous conviction can only be by proving proper record of conviction.

ii. A character witness can impeach a witness[26] – a person who knows the witness can be called to testify on his reputation and whether or not he is known for telling the truth. This would shed light on the character of the witness and his penchant for being truthful.[27]

iii. Bad acts for which there has been no conviction[28] - the previous bad acts must have some relation to the credibility of the witness and previous bad acts should bring out the witness’s bad moral character.

iv. Past untruthfulness[29] - if the witness can be impeached on the basis of past untruthfulness if it can be proved that he has lied before.

Impeachment of an expert witnesses

The technique used is similar to that of prior inconsistent statements. That is, firstly, the trial advocate must re-commit the expert to the statement or opinion given in the examination-in-chief. 

Secondly, to build up the reliability of the conflicting authority and finally, contrasting the statement or opinion expressed in the conflicting authority with that of the witness.

Impeachment of an expert witness requires additional preparation because the expert knows more on the subject and is more experienced in the subject. It is important to prepare on the area of expertise in question and the requirements to achieve such expertise.

First one requires looks at the qualifications of the expert.[30] Does the expert possess the necessary qualification for the court to declare him an expert?

Secondly, look at his evidence whether motivated by personal gain, payment to give testimony, or the motivation that the testimony at hand will give him more business.[31] If these are present then bias is read in the expert’s testimony. The expert’s character can be put to scrutiny if he has a record of dishonesty, fraud, perjury or embezzlement.[32] It is important to note that specific examples of prior dishonest acts are not admissible unless the witness admits to them while on stand.[33]

CONCLUSION

Impeachment is of key importance to a trial lawyer. If impeachment is performed successfully, it can be an extremely effective way to undermine the opponent’s case. However, it is double-edged. If your attempt to impeach fails, the witness will emerge stronger and their evidence reinforced.

The other party can also salvage their case during re-examination through rehabilitation of a witness.[34] A witnesses’ credibility can be rehabilitated after their credibility has been attacked. Rehabilitation of a witness is confined to using the same techniques used by the opponent to impeach the witness. That is, if the opponent impeached via bias, rehabilitation is limited to negating the claim of bias. If the opponent brought in a rebuttal witness who testified to the character of principal witness as that of a liar, rehabilitation is limited to a character witness who testifies principal witness is a truthful person. 

REFERENCES

The Constitution of Kenya 2010

Evidence Act Cap 80, Laws of Kenya

Bryan A Garner, Black’s Law Dictionary, 9th edn, West Group 2009.

Thomas .A. Mauet and Les A. Mccrimmon “Fundamentals of Trial technique” 3rd edn, LBC Information Services, 2001.

Alan D. Gold, “The Inconsistent Witness” Successful Impeachment Strategies

Steven Lubet, Sheila Block & Cynthia Tape, Modern Trial Advocacy; Law School Edition, 2nd edition, Lexi Nexus 2009.

Y. Ross, Ethics in Law 5th Ed, LexisNexis, Butterworths, 2010

James W. McElhaney, McElhaney’s Trial Notebook (American Bar Association, 2005) 245

Penny J. White ‘Witnesses and Impeachment’ 

Rehabilitating the impeached witness, Elwood Thomas

CASES

Law Society of Kenya v Faith Waigwa & 8 others [2015]eKLR

Shiguye Versus Republic (1975) EA 191 page 192 

Vazquez v. Martinez (2015), 40 Fla. L Weekly D2170a

George Marwa Mwikabe v R 2004 eklr

[1]Black’s Law Dictionary 8th Edition 

[2] Impeachment Done Right by Stephen Mason 

[3] The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. 

[4]Edusei Asili Malema v Republic [2007] eKLR 

[5] Section 154(1) of the Evidence Act, Cap 80 Laws of Kenya. 

[6]Shiguye Versus Republic (1975) EA 191 page 192 paragraph D 

[7]Law Society of Kenya Versus Faith Waigwa& 8 others(2015) eKLR 

[8] Y. Ross, Ethics in Law (5th Ed, LexisNexis, Butterworths, 2010) 

[9]if a counsel intends to present evidence contradictory to a witness’s testimony as part of his or her argument, he or she must put their version of events to the witness during cross examination. 

[10]Thomas A Mauet, Casswell D.G. & MacDonald, G.P. ‘Fundamentals of Trial techniques’ 

[11] Section 152 of the Evidence Act, Cap 80, Laws of Kenya 

[12]Alan D. Gold, “The Inconsistent Witness” Successful Impeachment Strategies 

[13]Steven Lubet, Sheila Block & Cynthia Tape, Modern Trial Advocacy 

[14]Alan Gold explains, “quibbles are blanks… [q]uibbles are worse than not cross-examining on inconsistencies because it shows you are dredging the bottom of the barrel.” 

[15] (2015), 40 Fla. L Weekly 

[16] Supra Note 26 

[17] Steven LubetModern Trial Advocacy: Law School Edition 2nd Edition 

[18] Section 159 and section 160 Evidence Act Chapter 80, Laws of Kenya 

[19] Section 157 Of the Evidence Act, Cap 80, Laws of Kenya 

[20] Section 157(3) of the Evidence Act, Cap 80 Laws of Kenya 

[21] Section 58 of the Evidence Act, Cap 80 Laws of Kenya 

[22] Section 56 of the Evidence Act, Cap 80 Laws of Kenya 

[23] James W. McElhaney, McElhaney’s Trial Notebook (American Bar Association, 2005)245 

[24] section .162(i) supra note 20 

[25] (2014) e-KLR 

[26] James W. McElhaney, McElhaney’s Trial Notebook (American Bar Association, 2005) 250 

[27] Supra note 17 section 163(1)(a) 

[28] Ibid 

[29] Ibid 

[30]Impeaching an Expert Witness, available at www.crossexam.com/impeaching-an-expert-witness-html accessed on 27th April 2016. 

[31] Ibid. 

[32] Ibid. 

[33] Ibid. 

[34] Rehabilitating the impeached witness, Elwood Thomas