People v. Lewis, 2017 IL App (4th) 150124 (April). Episode 353 (Duration 14:28)
Steigman on how to conduct a proper impeachment.
Defendant is charged with aggravated battery for choking a girl.
He takes her phone.
He grabs her by the neck when his sister gets between them.
Defendant calls his sister as a witness who testified that defendant never choked the victim.
State Impeaches His Sister
State calls a police officer who says sister did tell him defendant choked the victim.
Because the sister testified as a defense witness, the State was permitted to impeach her by showing that she had made an oral prior statement inconsistent with her trial testimony.
The State sought by this impeachment to undercut her credibility in the eyes of the jury.
Here, defendant’s sister testified as a defense witness, and the State sought to impeach her by first confronting her on cross examination with a prior oral statement she made to the officer that was inconsistent with her trial testimony and then completing the impeachment by calling the officer (the impeaching witness) to testify that the sister had made that statement.
What happened in this case was standard, run-of-the-mill impeachment of an opposing party’s witness by the introduction of that witness’ prior inconsistent statement, and section 115-10.1 was not implicated in this case.
When we are outside the bounds of 115-10.1, a witness who is impeached with statements made by him out of court, those statements may not be considered for their truth—that is, they do not constitute substantive evidence.
The fact that the witness made different, contradictory statements should be used only to undermine the credibility of the witness.
The Way It Went Down
In the State’s cross-examination, the State asked her the following question:
“Do you remember telling [the officer] that the defendant, choked your friend, the sister—or excuse me, you’re the sister—your friend, the victim, twice?”
The sister responded, “No.”
Then The Officer
It should be remembered that the only matter at issue when the State called the officer was to complete its impeachment of the sister by establishing through the officer’s testimony that he had a conversation with the sister in which the sister told him that the defendant choked her friend, the victim, twice.
Instead of directly asking that question of the officer, the State asked him if he recalled what was said in his interview with the sister.
When The officer responded, “Yes,” the State then asked, “Could you please begin at the beginning?”
This was wrong.
In response, The officer described in some detail what the sister told him about the incident. The important—and the only probative portion—of the officer’s rebuttal testimony was when he testified that the sister told him that defendant “reached past the victim and grabbed her twice around the neck.”
This Was Wrong
No objection was made to the officer’s testimony despite there being multiple problems with it.
The officer’s account about what the sister told him is not inconsistent, in a technical sense, with the sister’s testimony regarding her conversation with the officer. That is, when the State attempted to lay the foundation for the sister’s impeachment by a prior inconsistent statement, the State asked the sister on cross-examination if she remembered telling the officer that defendant “choked” the victim twice, and the sister replied “no”.
However, when the officer testified in rebuttal as the impeaching witness and the State asked the open-ended question in rebuttal for him to describe his conversation with the sister, he did not use the term “choked.”
Instead, he testified that the sister told him that defendant “grabbed” the victim twice around the neck. This may at first seem like a minor matter, but it is not.
Grabbing someone around the neck is not the same as choking that person, although if one grabbed a person strongly enough around the neck, choking might well result. His testimony that the sister told him that the defendant “grabbed” the victim by the neck twice was no doubt his then-current, honest recollection of that conversation
Nonetheless, the fundamental rule of impeachment by a prior inconsistent statement is that the extrinsic evidence of the statement having been made—with which the declarant was confronted on the witness stand—must be the same statement with which the witness was confronted. Here, that did not happen.
This is the only thing that is consistent with the Illinois Rules of Evidence.
Instead of using leading questions to complete the impeachment of the sister, the State used an open-ended question, thereby eliciting improper hearsay evidence about what the sister told the officer.
The State’s open-ended questioning of the officer resulted in his testifying about various details surrounding the incident that the sister told him (all of which was inadmissible hearsay), such as that the sister told the officer that defendant “got in the victim’s face and began yelling at her and calling her names.”
Even more important, the State’s open-ended questioning of the officer resulted in the State’s failure to present the extrinsic evidence the State was required to present—namely, that the sister had in fact made a statement inconsistent with her testimony at trial.
As earlier discussed, the State asked the sister whether she told the officer that defendant twice “choked” the victim, whereas the officer, when relating his conversation with the sister, said that the sister told him that defendant twice “grabbed” the victim around the neck. Indeed, the State’s purported attempt at completing the impeachment of the sister in this case not only was improper, but it could serve as a “poster boy” of what can happen when the correct procedure to complete impeachment is not used.
To Sum Up
To sum up, the State’s open-ended questioning of the officer, the impeaching witness, had two bad results:
(1) the State never properly completed the sister’s impeachment because the officer never testified that the sister made the statement to him that was allegedly inconsistent with her trial testimony, about which she was questioned on cross-examination; and
(2) the jury heard the officer say that the sister told him “defendant got in The victim’s face and began yelling at her and calling her names.”
Regarding that last point, we note that the victim herself never testified that defendant so behaved, and even the sister testified only that defendant and the victim were arguing and yelling at each other.
Because so much uncertainty seems to exist among trial lawyers regarding the issue of how to complete the impeachment of a witness through the presentation of extrinsic evidence to establish the inconsistent nature of the witness’ trial testimony, Steigman offers the following guidance:
The rule that must be followed is that,
“Before a witness may be impeached by a prior statement, a proper foundation must be laid in order to alert the witness, avoid unfair surprise, and to give the witness a chance to explain. The witness must first be asked as to the time, place[,] and persons involved in the alleged conversation; secondly, he must be asked whether he made a certain contrary statement at that time. *** When the impeaching witness is produced, the proper course is simply to ask him whether or not the witness to be impeached made the statement in regard to which he has been questioned at that time and place mentioned. It is improper to ask the impeaching witness to relate the whole conversation.”
Why This Is The Rule
The inherent danger posed by such cross-examination questions is that the jury will ignore the witness’ denial, make a presumption that the insinuation created by the questions is accurate, and substitute the presumption for proof.
The State must have a good-faith basis to ask the cross-examination questions, as well as the intent and the ability to complete its impeachment.
In the present case, the State purported to complete the impeachment of the sister by calling the officer (the impeaching witness), but as is often the case, the State did not follow correct procedure in doing so.
Aside from the fact that none of his recollection is pertinent or admissible except for the narrow and limited purpose of establishing the prior inconsistent statement, an open-ended question to the impeaching witness could result in a surprise to everyone. After all, the impeaching witness might well be testifying (as here) several months after the conversation at issue occurred, and the impeaching witness’ testimony about that conversation could in all honesty be based upon that witness’ current recollection.
The Way It Should Have Gone
Actually, the better phrasing of the question to the sister to lay the foundation for a later impeachment would have been for the State to have asked its question as follows:
“You told the officer the defendant choked your friend twice, didn’t you?” or “Isn’t it true that you told the officer defendant choked your friend twice?”
Asking the sister whether she remembered telling the officer that defendant choked her friend is not quite the same thing.
Having elicited this testimony from the sister, the State was then duty bound to complete the impeachment by presenting extrinsic evidence that the sister in fact had made the statement to the officer she had just denied.
Generally, the State may not impeach a defense witness on cross-examination with a prior inconsistent statement unless the State can prove that statement with extrinsic evidence if the witness denies making it.
With The Officer
Thus, in the present case, to complete the sister’s impeachment, the State was required to call the officer, the impeaching witness, to testify in rebuttal.
Through the officer’s testimony, the State needed to present extrinsic evidence of the sister’s prior statement to the officer that the State maintained was inconsistent with her trial testimony. To do so, the State needed first to establish that the officer had a conversation with the sister about the incident in question, asking generally where and when the conversation occurred and who was present, if anyone, besides the sister and the officer.
Then the State should have asked a leading question, literally calling for only a yes or no answer, as follows:
“During that conversation, did the sister tell you that the defendant choked her friend, the victim, twice?”
Assuming, for the moment, the officer would have answered “yes” to that question, then the impeachment of the sister would have been completed and no further testimony from the officer about what the sister told him during that conversation would be either necessary or admissible.
That is because everything the sister told the officer in their conversation constituted inadmissible hearsay except the officer’s testimony about the sister’s prior inconsistent statement.
Had this procedure been followed, the officer would not have had the opportunity to tell the jury that the sister told the officer how “defendant got in the victim’s face and was yelling at her and calling her names,” all of which was prejudicial to defendant and entirely inadmissible.
**To be clear—here, the officer—should never be asked what his recollection of the conversation at issue.
Prep The Impeaching Witness
If the prosecutor before trial had discussed the officer’s testimony with him (as she should have done) before
(1) confronting the sister on cross-examination with her prior statement to the officer that was allegedly inconsistent with her trial testimony and then
(2) calling the officer as the impeaching witness, she might have refreshed his recollection with his reports showing that the term the sister used in that conversation was that defendant “choked” the victim twice.
Under these circumstances, it is possible that the officer, with his recollection having been refreshed, could have testified accurately and honestly that the sister used the term “choked.”
Further, if after an attempt to refresh the officer’s recollection during such a pretrial conference between the prosecutor and the officer, the officer still remembered the sister as using only the term “grabbed” instead of “choked,” then the prosecutor would know not to ask the sister during her cross-examination by the State if the sister told the officer that she saw the defendant “choke” the victim twice.
The prosecutor instead would know to use the term “grabbed” when cross examining the sister.
Yet, that mistake highlights why, to avoid this situation, it is necessary that only leading questions must be asked of the impeaching witness to establish the prior inconsistent statement.