In my last two posts I explained the mechanics of impeaching a witness and refreshing a witness’s recollection. To illustrate those mechanics, I used some fairly stark examples: (a) an impeachment where a witness blatantly contradicted himself and (b) a refreshing recollection where the underlying document was clearly inadmissible. In both those examples, the right tool for the job was pretty clear. Caught the witness in a critical lie? Impeach. Got a good document but it's inadmissible? Try to refresh.

It isn’t always so cut and dry. Sometimes, you have a choice between impeaching and refreshing a witness with a particular document. That’s what this post is about.

But wait, wait, wait, Sam—you said in your last post (and I quote) “lawyers prefer impeachment.” Yes, I said that, and yes, it’s true. Usually. When confronting an adversarial witness with a contradiction on a material point, you are going to want to impeach. There are, however, a number of times when you will find yourself cross-examining a witness who isn’t entirely unfriendly or on a point that isn’t that controversial. In those cases, the choice is not always so clear. Let me illustrate.

Imagine you are cross examining Joe Smith, the CEO of the opposing party, and in your cross-examination, you want to establish that, as a CEO, Mr. Smith was in regular communication with his subordinates about the day-to-day operation of the business. Let’s assume that this is not a particularly controversial point in the case, but it will be helpful to you to establish it in the jurors' minds as a predicate for a later point you are going to make. For example, this pattern of communication might tend to show that it is unlikely Mr. Smith didn’t know about some misconduct at the company.

You decided to approach this section of the cross-examination by going through several examples in which you can show Mr. Smith engaging in regular, substantive communications with different people in the organization. You have many examples of this, one of which is the following from Mr. Smith’s deposition:

Q. In 2004, would you meet regularly with your CFO, Ms. Jones?
A. Yes; Ms. Jones and I had a weekly meeting during her tenure as CFO.

A helpful illustration, but also not particularly controversial or surprising. And so, you write out the following simple question in your cross-examination outline:

Q. Mr. Smith, am I correct that in 2004 you had regular meetings with your CFO, Ms. Jones?

All good. A nice simple question, that you have support for, and that will fit in with a bunch of other questions you have prepared about his meetings with other people in the organization.

What do you do when Mr. Smith’s answer to this question, on the stand, is:

A. Umm…no.

Why did Mr. Smith say "no" here on a pretty uncontroversial statement (that you have evidence for)? Maybe he just genuinely didn't remember. Or maybe he has some quibble with your formulation of the question and wants to see if he can get away with a "no" (more on that in a moment). Following the examples of the previous two posts, you might say, OK, so I impeach him with his deposition. And you could, and it would work—at least in the sense that you would be able to confront him with his prior testimony and present it to the jury.

But think about where that leaves you in your examination. You have now created a lot of drama around this single question, which, in and of itself isn’t that important a question. You may have put a small dent in the witness’s credibility, but given how minor the question is, the jury may just assume he forgot. You’ve also now put the witness on edge because, frankly, no one likes to be impeached. As a result, he's less likely to go along with the rest of your series of questions on this topic, which may lead to further impeachments, further confusing the jury. On top of that, this has disrupted a series of questions that you wanted the jury to hear together to establish a simple pattern. So now, you have a somewhat confused jury, a witness that is on-edge and likely to be more guarded, and a break in your flow.

There’s got to be a better way, and there is. Instead of impeaching the witness here, you could try to refresh his recollection.

Note that you obviously aren't going to have the option to refresh instead of impeach if the witness is truly insistent that the answer to your question is "no." In that case, impeachment is your only option. But--particularly on non-controversial subjects--a couple of things can happen that give you this "impeach vs. refresh" decision point. One, of course, is that the witness just doesn't remember. Another is that the witness might be giving you what I think of as a "light no." By "light no" I mean that they are saying "no," but only because they think they might not be called on it, not because they are really committed to persisting in their denial.

For example, in the situation above, Mr. Smith may be saying "no" because in his mind he's thinking something like "well, I don't know if they were really 'regular' meetings--so maybe I can get away with saying 'no'." What you want to do in response is not to call him a liar with a dramatic impeachment, but really just to put him on notice that this sort of gamesmanship isn't going to fly on your watch. In this situation, refreshing can provide exactly that: a gentler, less antagonistic way to remind the witness that you have support for your questions and he isn't going to get away with any funny business. It does this without embarrassing him or making him more hostile to you, because by framing it as refreshing recollection you give the witness a graceful way out--basically, allowing him to say, "oh, right, I forgot."

I like to think about this "light no" possibility every time I'm preparing for a line of questioning like the one above where: (a) I have impeachment material, (b) the witness is probably going to agree with me because it isn't that contentious a topic, but (c) there's some chance the witness might try to see if she can get away with giving me a no. The decision you have to make in these situations (ideally in advance of the live cross) is whether you want to use these as opportunities for a dramatic disciplining of the witness (impeachment) or, instead, to give a gentle reminder to the witness that you are in charge (refreshing). 

On non-controversial issues, like in the example above, refreshing recollection is often a less disruptive way to move a witness along in your cross examination. Rather than saying or implying—as impeachment does—that the witness is lying or being misleading, a refreshing of recollection allows you to adopt a helpful and collaborative tone with a witness. You may want to do this with witnesses who are not antagonistic to you; you may want to do it in non-controversial parts of your examination that you want to be uninterrupted; or you may want to do it to save the drama of impeachment for more important parts of you cross. These are all situations in which it can be better to try to refresh, rather than impeach, when you have the choice.

Now, in doing this type of refreshing, there are a few mechanical things to keep in mind.

First, as with all refreshing, how you phrase your initial question matters. If you have impeachment material, and you are worried you may need to use it simply because the witness won’t remember something or is giving you a "light no," but you would prefer to refresh the witness, don’t leave it up to chance. Phrase your question to invite the lack of recollection (if there is one). So, don’t ask:

Q. Mr. Smith, am I correct that in 2004 you had regular meetings with your CFO, Ms. Jones?

That phrase leaves the witness the possibility of the “Umm…no” above which is technically not enough of a predicate for refreshing (he said “no,” not “I don’t remember”) and so you may be forced to impeach. Instead, ask:

Q. Mr. Smith, do you recall that in 2004 you had regular meetings with your CFO, Ms. Jones?

Phrasing it this way, with “do you recall,” means that if the witness says “no,” you’re ready to go right into refreshing. Of course, if the witness says “yes,” as you hope, that works just as well as a “yes” to the original formulation.

A side note – this question phrasing works in reverse as well. If for some reason you want to impeach a witness if they don't agree with you and don’t want to refresh recollection, try to ask your question in a way that makes it unlikely the witness will answer with “I don’t remember.” So in this scenario, if given the chance you would prefer to impeach Mr. Smith, I would ask the setup question as follows:

Q. It’s true, isn’t it, Mr. Smith, that in 2004 you had regular meetings with your CFO, Ms. Jones?

That formulation might not look too different than the original “am I correct” one, but there is a subtle difference in emphasis. It's got a little bit more of an edge to it. In my experience, questions phrased in a slightly confrontational manner—like this one—make it more likely that a witness with any inclination to not agree will give you a simple “no,” rather than an “I don’t remember.” This is because in the face of a confrontation, a lot of people are afraid that "I don't remember" will look evasive, and so their instinct is to go with "no," even if they actually don't remember. Similarly if there instinct was to try out a "light no," a confrontational formulation is likely to push them further in that direction.

(By the way, if you are getting the sense that thinking about exactly how you phrase your questions, as well as how people react to different phrasings, is important to becoming a good questioner, my work is largely done…)

Second, sometimes you aren't expecting to need to refresh and so are stuck with something like the original colloquy, e.g.:

Q. Mr. Smith, am I correct that in 2004 you had regular meetings with your CFO, Ms. Jones?
A. Umm... No.

At this point, you don't have a failure of recollection. However, you can often still convert to a refreshing with a simple follow-up question like:

Q. You don’t remember that?

Unless the witness is really committed to a full on denial, you will get a "no" here, and have now established the lack of recollection. (Of course, if the witness is committed to the denial and says, "I'm not saying I don't remember. "I'm saying it didn't happen," then you know you have no choice but to impeach.)

Third, if you are refreshing with a deposition (as in this example), you can deviate slightly from my standard refreshing recollection formulation in how you use the deposition. Rather than have the witness read the deposition silently to themselves, you can actually read it out loud to the jury. Why? Rule 804 of the Federal Rules of Evidence. A witness who doesn’t remember something is “unavailable,” and so their former testimony on that subject is now no longer hearsay. Read 804(b)(1) for the specifics. This gives a nice bit of added clarity to the jury, so definitely use it.

* * *

In short, in non-contentious areas in cross-examination, you may find yourself with a choice between impeaching and refreshing when a witness doesn't repeat their prior statement. Don't automatically assume impeachment is the way to go. If you want a dramatic, confrontational moment, impeachment is great. If you want something less disruptive to your rapport with the witness, less dramatic, or that may better fit with the flow of a particular set of questions, consider refreshing. And of course, with all of this, make sure to write your questions in a way that maximizes your odds of setting up the direction you'd like to go in--and also be prepared to go the other direction if the witness insists.