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What is exactly introducing a witness to testify for other than impeachment in an employment matter

San Francisco, CA |

Does it mean - impeaching a witness from the opposing side?

In a alternative dispute matter, the party is introducing a witness as a surprise. The purpose of this witness is to testify and defend their side (not to impeach a witness from the opposing side). Is the reason mentioned on the title is applicable to object to this "surprise witness"?

Attorney Answers 1

Posted

Impeachment is the introduction of evidence (like documents or witness testimony) that contradicts a witness. When you are allowed to bring in impeachment evidence may be different in a proceeding other than a trial, but it is likely the same. In trial, a party is allowed to withhold the names of witnesses and documents whose sole purpose is to provide impeachment. The idea being that if the other side knew the document or person was going to be presented at trial, they would prepare by adjusting their testimony.

The problem many people get into in relying on the impeachment exception to including witnesses on their pre-trial witness list is that they misunderstand the difference between impeachment evidence and evidence that simply controverts the other side's position. You cannot hold off on identifying a witness who will come in and testify strongly on your behalf and claim that witness is impeachment. Impeachment does not relate to the other side's legal position. It relates solely to witness testimony. If the "impeachment witness" does not specifically impeach a witness, but instead provides evidence that hurts the other side, it is not impeachment.

Another problem that can occur is that the testimony may implicitly impeach a witness' testimony, but is not clearly contradicting the witness such that it will not qualify as impeachment.

A final problem is that a party will withhold the identity of a witness on the basis of the impeachment exception, and then they are precluded from using that witness to his or her fullest extent because the witness will be limited to impeachment testimony and nothing else.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Michael John Tonsing

Michael John Tonsing

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An example of an impeachment witness: The other side calls a witness who testifies that he saw the car coming at a high rate of speed, hittng the child in the crosswalk. A rebuttal witness testifies convincingly that the "eye witness" is blind. A witness that would not be a rebuttal witness? A witness who would say he saw the car coming, too, and it was not going very fast at all. Get the difference? Second witness should have testified as a part of your case. First witness had no role until the blind guy testified.

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