ACCURACY, BIAS AND CAPACITY

The four categories of Impeachment that the Litigator has available to call a Hostile's testimony into question are Accuracy {1}, Bias {2}, Capacity {3} and Dimishment. These are the "ABC/Ds" of Cross.

The first three categories (A,B and C) are directed toward eroding the convincing force of the Hostile’s testimony about the Facts in order to frustrate the OC’s burden of Persuasion. The fourth category (the /D) is aimed at the Hostile’s character for truthfulness rather than the Facts in dispute. While the Litigator uses the ABCs to put doubt in the jurors’ minds about the OC’s Case, he uses /D to induce doubt about the Hostile himself—and by extension, the AP (if they are not one in the same).

While Diminishment is the most tempting category of Impeachment for the Litigator, the great majority of his examination should be focused on the ABCs, as it will be these categories that will most closely conform to the Facts, the Issues and the judge’s ultimate Instructions to the jury about their duty to assess the credibility of the witness and his testimony:

You are the sole judges of the credibility of each witness.  You must decide for yourselves whether to believe the testimony of any witness. You may believe all, or any part, or none of that testimony. In determining whether to believe any witness you should use the same tests of truthfulness, which you apply in your everyday lives. These tests may include: the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified; the manner and appearance of the witness; any interest, bias, or partiality the witness may have; the apparent understanding and fairness of the witness; whether the testimony of the witness is sensible and reasonable; and whether the testimony of the witness is consistent with other believable evidence in the case. NCPJI 101.15^[4]

It is directly from these tests of creditability that the judge provides to the jury in the Instructions that my concept of the the ABCs is drawn:

• By testing whether the testimony of the witness is sensible and reasonable; and whether the testimony of the witness is consistent with other believable evidence in the case, the jury weighs the Accuracy of his testimony

• By testing any interest, bias, or partiality the witness may have and his apparent understanding and fairness, the jury determines the degree to which Bias renders the testimony less convincing

• By testing the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified, the jury assesses the degree to which the witness’ Capacityimpacts the convincing force to his testimony

By building his Cross on the foundation of the ABCs, the Litigator provides the jurors with the substance they will need to conduct the tests that the judge will instruct them to use to determine the credibility of the Hostile testimony that they have heard. Because he is Crossing to Close, the Litigator uses his Cross to raise doubts in the jurors’ minds that he will exploit during Close to persuade them that the testimony lacks the convincing force necessary to satisfy the OC’s burden of Persuasion.

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^[1] Impeachment through Accuracy tests whether a Hostile’s testimony is sensible, reasonable and consistent.

^[2] Impeachment through Bias tests whether a Hostile’s personal interest or partiality has effected his apparent understanding and fairness.

^[3] Impeachment through Capacity questions a Hostile’s opportunity to see, hear, know, or remember the facts or occurrences about which he has testified.

^[4] PRACTICE TIP: this is a pattern jury instructions that the Litigator should commit to memory, so that he can cite parts of it nearly verbatim during his Close without notes.