Each year, the American Bar Association, Section of Litigation publishes thousands of books to enhance trial practice skills of lawyers and law students on subjects from evidence to discovery to client privilege and skills for the examination of witnesses at trial and in discovery. The Brooklyn Law School Library collection has many of these titles that aspiring trial lawyers can review aspiring trial attorneys can review before entering into the practice of law. The latest acquisition, MacCarthy on Impeachment: How to Find and Use These Weapons of Mass Destruction (Call No. KF8950 .M33 2016) by Terence F. MacCarthy, Executive Director of the Federal Defender Program in the U.S. District Court for the Northern District of Illinois and his two sons, is a relatively short 172 page volume that explores in detail impeachment of witnesses, which the author defines as cross-examination on “matters affecting the credibility of the witness” or “that which challenges veracity”. Impeachment is often used to show that the witness is, at worst, a liar, a difficult task that requires the cross examiner to go for the jugular. An easier goal of impeachment is to show that the witness is mistaken. Another important type of impeachment discussed in the book is motivation or bias impeachment the constitutional dimension of which was firmly recognized in Davis v. Alaska, 415 U.S. 308 (1974).
There are many books on evidence and trial advocacy, including MacCarthy on Cross Examination (Call No. KF8920 .M326 2007) by the same author, but little specifically on impeachment. It is one of the most confusing and misunderstood parts of the trial for both trial lawyers and judges. Just as cross examination is the most difficult of trial skills, impeachment, usually a part of cross examination, is the most difficult of the difficult. Many trial lawyers do not know what they can or cannot do to impeach. This new title offers trial lawyers “weapons of mass destruction” and offers instruction on how to use them. This groundbreaking work that is an indispensable resource for trial attorneys seeking to improve their skills and better serve clients.
The book discusses sixteen ways to impeach a witness under cross examination in sixteen chapters, the last two of which deal with expert witnesses. Some chapters include citations to the Federal Rules of Evidence in parentheses. The chapter are:
- Chapter One: Inconsistent Statements (FRE 613)
- Chapter Two: Contradictions – Contradictory Evidence
- Chapter Three: Motivation
- Chapter Four: Truthfulness (FRE 608)
- Chapter Five: Convictions (FRE 609)
- Chapter Six: What the Witness Could Have Done but Did Not Do
- Chapter Seven: Capacity
- Chapter Eight: Bad Acts, Crimes, and Wrongs (FRE 404(b))
- Chapter Nine: Habit (FRE 406)
- Chapter Ten: Writing Used to Refresh Memory (FRE 612)
- Chapter Eleven: Admissions ((FRE 801(d)(2))
- Chapter Twelve: The Hearsay Declarant (FRE 806)
- Chapter Thirteen: Character Witnesses
- Chapter Fourteen: Sex Offense or Sexual Assault Cases (FRE 412 to 415)
- Chapter Fifteen: Expert’s Résumé (FRE 702)
- Chapter Sixteen: Learned Treatises (FRE 803(18))
At the end of the volume is a useful list of MacCarthy’s Rules of Trial Advocacy including
- “The lectern is for putting things on not for standing behind.”
- “Speak in a courtroom the way you would speak in a bar. You speak in a bar to practice speaking in a courtroom.”
- Do not legalize.
- “The importance of eye contact and a smile.” and
- “Do not use fillers – i.e. “and”, “like”, “ah”.
- Your stories should paint pictures.