How to Impeach a Witness in Small Claims Court - dummies

How to Impeach a Witness in Small Claims Court

By Judge Philip Straniere

Impeaching a witness can make a powerful statement in your small claims case. Witness impeaching means calling a witness’s credibility into question, and trying to cast doubt that what a witness says is accurate or truthful.

Because of the relaxed rules of evidence in small claims court, credibility often becomes a major issue in the case.

You can impeach someone’s testimony in a couple ways:

  • Show that a previous statement or action is inconsistent with trial testimony.

    For example:

    • In a suit by a tenant to recover a security deposit from the landlord, the landlord claims that there never was any security deposit given so there’s nothing to return. If the tenant produces a receipt given by the landlord when the tenant first entered into occupancy of the apartment, the receipt can be used to impeach the landlord’s testimony.

    • In a car accident case, the defendant says that you ran the stop sign and hit him. You show him a picture of your car with the right side smashed in and his car with the front damaged. The photos impeach his testimony because they lead to the conclusion that he hit you.

  • Use a rule of law called falsus in uno. Falsus in uno is a Latin term for the idea that if a person lies or misstates one thing, the judge or the jury can disregard that person’s entire testimony. So if you can establish that the witness is misstating a material fact about the case, the judge doesn’t have to believe any of that person’s testimony.

    A material fact is one that is important and if accepted by the judge as true would help prove the plaintiff’s case or the defendant’s defense.

  • Produce a statement the witness gave under oath — such as in an affidavit, a deposition, or even testimony at another trial — that contradicts his statement at your trial.

    If you’re lucky enough to produce such a previously sworn to statement, you get to have your own “Perry Mason” moment during the trial when you confront the witness and ask: “You were under oath when you made that prior statement and you’re under oath now. Please, tell this court were you lying then or are you lying now?”

Don’t get carried away with the idea of being able to impeach a witness for any misstatement. The misstatement or changed testimony generally has to be about an important, or material, fact or element of the case. Getting the details wrong isn’t enough, as in these examples:

  • You’re suing your neighbor who killed your tree when he trimmed off branches that hung over the fence onto his property. In your complaint you said the tree was a maple but it was actually an oak. This was a mistake, but it would be unlikely to use this to impeach your testimony because the kind of tree that was trimmed was not material to the case.

  • In a car accident case, the police report states you said you were going between 15 and 20 miles per hour. At trial, you say you were going around 15 mph. This is not a material variation of the facts, which will lead to the impeachment of your testimony.

If you have one of the rare small claims case where discovery was conducted, the deposition transcript or answers to the written interrogatories often provide a gold mine of information that can be used to impeach a witness because those statements like those made at trial are under oath.

Another place to obtain inconsistent statements used to impeach may be in witness statements given to the police, insurance companies, and other persons investigating an accident.