Janelle flatly refuses. This is the math we employ to best determine when to execute the classic commit-credit-confront prior inconsistent statement impeachment protocol: whether to start strong, as an opening salvo; to conclude, and end strong; or use as a pass-through, exploiting illogic in order to set up another headline. The jury instruction can be effective way to frame the impeachments significance. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . The Model Penal Code has a similar provision (Model Penal Code 241.1(3)). Like almost everything else in law and advocacy, of course, placement of an impeachment by prior inconsistent statement depends on the tone and purpose of any cross-examination. Ideally, beginning with impeachment will discredit further testimony from that witness or at least encourage the jury to view the witness with skepticism going forward. No two cases are the same, nor are any two cross examinations the same. Putting time between the impeaching statement and the redirect explanation reduces the impact of the witnesss explanation on redirect. Proc., 425.115.) criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . Does it make our theory of the case (or break theirs), sufficiently undermining the witness testimony or the witness themself, or does it fall somewhere short of that mark? Answer the following questions. 67 Perjury is generally graded as a felony (N.C. Gen. Stat. Stat. Marcus has most likely committed perjury in this example. As a general rule, I would propose that on cross-examination, you should always start with testimony that is helpful to your side of the case. Federal law ( 18 USC 1621 ), for example, states that anyone found guilty of the crime will be fined or imprisoned for up to five years. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. Review the example in Section 13 Example of a Case Lacking an Element of Perjury with Marcus. In this example, both the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering, and accepting and receiving a bribe as the criminal act elements. Penal Code 85, accessed May 6, 2011, http://law.onecle.com/california/penal/85.html. 575.040(3), 2011). Suppose an expert testified that she is neutral and doesnt really know the parties. The Model Penal Code criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any pecuniary (which means monetary) benefit in exchange for a public servant, party official, voters decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code 240.1(1)). Ann. One final point: the matter of safety nets. Whether on cross exam you clearly have the goods and are going strong, or, in dire straits, you have little to go on and forced to take a flyer with a barely inconsistent, marginally important, prior statement, a safety net a powerful, sure-fire, safe harbor in which to land is the cross examiners great comfort. Ala. Code 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html. And who doesnt love the twist ending? Suparna Malempati Penal Code 85, 2011; Cal. Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. The jury became upset and turned away. On cross, like Coach Valvano, our mission at base is to survive and advance. Statements inconsistent with the statement the . LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. The specific act that constitutes the crime of perjury is not the false statement itself, but rather the oath or affirmation that the statement is true. Many criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting, or agreeing to accept, any benefit upon a public official (criminal act) with the specific intent or purposely, or the general intent or knowingly to form an agreement or understanding that the public officials decision making will be influenced by the benefit. The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. If you know of the opportunity in advance of trial, and nothing during the witness direct alters your cross examination plan, stay the course and keep in place otherwise, adapt accordingly. The recognition of multiple goals of cross-examination is nothing new. Note that Bondss obstruction of justice charge of evading the question and refusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent requirement, as discussed in Section 13 Perjury Criminal Intent. Historyplace.com website, Presidential Impeachment Proceedings, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. Example 1 The claimant claimed she couldn't work due to back pain and said that she could not sit or stand for more than a few minutes at a time. For example:! Subdivision (d)(1)(A). Whether the prior statement helps you, hurts you, or, albeit inconsistent, does neither, the when question takes these factors into consideration: Significance (the contrast between the statements), Materiality (the importance of the impeachment to your case), and. (1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to: On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. 2.7. Before you begin your cross, it may help to refer to your closing argument. Penal Law 180.00, 2011). Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. You can get the confirmation of facts easier if you are not in a pitched battle with the witness. Teaching the witness that youve got the goods when they start deviating from their prior statement will make the rest of cross go smoother. 16, 16-10-70, 2011). As such, a statement is an assertion that something is or is not the case. The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). In the face of mounting evidence that she had used PEDs, Jones pleaded guilty to two charges of perjury in 2007 and admitted that she had used the designer steroid The Clear. Out-of-court statements in cases involving sex crimes against childrensuch as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a childare . Although the judge did not accept Isabels gift, most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. This type of bribery is typically called commercial bribery (N.Y. Marcuss statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. States and the federal government exercise broad latitude in enacting statutes that criminalize interference with any aspect of law enforcement procedure or the prosecution and conviction of criminal offenders. Isabel notices a gentleman struggling to pay his bill at a local coffee shop. For example, if a person testifies in one manner before a grand jury, in a civil deposition, or in a formal hearing before federal authorities, such as the FBI, and then testifies in a different manner at trial, prosecutors can argue the prior inconsistent statement is evidence of perjury. It shall constitute perjury whenever any person, having taken an oath required by law, or made an equivalent affirmation, swears or affirms any fact or state of facts material to the issue or question in controversy; and thereafter in the same or other proceedings, where such matter is material to the issue or question in controversy, swears or 720 ILCS 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. Everything was caught on video. Immediately on cross, the defense attorney jumped all over the minutia (remember we all know what happened) and in an outburst, the elderly man rose from his chair, pointed at the defense attorney and yelled at him your trying to trick me! The case was essentially done. While impeaching is fun for the attorney, it routinely gets lost on the jury. The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) This strategy is not without risk. It also might make sense to tie the statement to where it fell chronologically within the case. Testimony full of perjuries. Penal Code 86; Cal. Marcus takes an oath sworn by the court commissioner. The jury knew where the defense attorney was going and they understood the soft impeachment. Example of a Preparatory Crime and Attempt, Voluntary Abandonment as a Defense to Attempt, Example of Voluntary Abandonment as a Defense to Attempt, Example of Attempt and Transferred Intent, Example of a Case Where Whartons Rule Is Inapplicable, LAW AND ETHICS : THE HAN MURDER CONSPIRACY, Renunciation as a Defense to Solicitation, Example of Intent to Cause Serious Bodily Injury, Good News: The US Murder Rate Is Declining, Factors Classifying Murder as First Degree, Definition of Willful, Deliberate, and Premeditated, Example of a Willful, Deliberate, Premeditated Murder, Example of Co-Felon Liability for Felony Murder, Exception to Co-Felon Liability for Felony Murder, Example of the Exception to Co-Felon Liability for Felony Murder, Liability When Someone Other than the Defendant Kills the Victim, Concurrence of the Felony and the Death of the Victim, Example of a Death That Occurs before the Felony Begins, Concurrence of the Killing and the Heat of Passion, Reckless or Negligent Involuntary Manslaughter, Example of Reckless or Negligent Involuntary Manslaughter, Sex Offenses and Crimes Involving Force, Fear, and Physical Restraint, Synopsis of the History of Rape and Sodomy, Proving Lack of Consent as an Attendant Circumstance, Proving Involuntary Consent by the Victims Resistance, The Requirement of Corroborative Evidence, Example of the Effect of a Rape Shield Law, Justification and Excuse Defenses to Battery, Attempted Battery and Threatened Battery Assault, Example of Attempted Battery Assault Act, Example of Attempted Battery Assault Intent, Example of Threatened Battery Assault Act, Example of Threatened Battery Assault Intent, Example of Threatened Battery Assault Harm, Domestic Violence Statutes Characteristics, Example of a Case Lacking Kidnapping Attendant Circumstance, Example of Kidnapping Attendant Circumstance, Potential Defenses to Kidnapping and False Imprisonment, Answers to You Be the Law Enforcement Officer, Example of a Case Lacking Consolidated Theft Intent, Larceny or False Pretenses Intent as to the False Statement of Fact, Example of Larceny or False Pretenses Intent as to the False Representation of Fact, Consolidated Theft Attendant Circumstance of Victim Ownership, Example of Mistake of Fact as a Defense to Consolidated Theft, Consolidated Theft Attendant Circumstance of Lack of Consent, Example of a Consensual Conversion That Is Noncriminal, Embezzlement Attendant Circumstance of a Relationship of Trust and Confidence, Example of a Case Lacking Embezzlement Attendant Circumstance, Attendant Circumstance of Victim Reliance Required for False Pretenses or Larceny by Trick, Example of a Case Lacking the Attendant Circumstance of Victim Reliance Required for False Pretenses, Extortion, Robbery, and Receiving Stolen Property, Example of a Case Lacking Extortion Intent, Example of Attendant Circumstance of Victim Consent for Extortion, Example of Robbery Attendant Circumstances, Example of Receiving Stolen Property Intent, Receiving Stolen Property Attendant Circumstances, Example of a Case Lacking Burglary Intent, Example of Burglary Attendant Circumstances, Example of a Case Lacking Arson Intent for Burning the Defendants Property, Disorderly Conduct Attendant Circumstance, Example of Disorderly Conduct Attendant Circumstance, Potential Constitutional Challenges to Disorderly Conduct Statutes, Example of a Disorderly Conduct Statute That Is Unconstitutional, Unlawful Assembly and Failure to Disperse, Example of Unlawful Assembly and Failure to Disperse, Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes, Example of Civil Responses to Gang Activity, Potential Constitutional Challenges to Gang Statutes, Example of the Modernization of Drug Crimes Statutes, Example of a Case Lacking Treason Elements and Evidentiary Requirements, Constitutional Challenges to the USA PATRIOT Act, Example of a Case Lacking an Element of Perjury, Example of Perjury by Inconsistent Statements, Example of a Case Lacking an Element of Subornation of Perjury, Prosecutorial Burden in Bribery Prosecutions, Example of a Case Lacking an Element of Bribery, Bribery When No Authority to Act Is Present, Example of Bribery When No Authority to Act Is Present. However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. The perjury charges stemmed from Bondss claim while testifying under oath that he never knowingly used steroids, never knowingly used human growth hormones, and was never injected with a substance by anyone other than his trainer. N.C. Gen. Stat. Review the example with Isabel in Section 13 Example of Bribery. The facts were never in doubt. (1) Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided . Instead of answering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation (Macur, J., 2011). Identify the statements you believe to be perjury. Check your answers using the answer key at the end of the chapter. The cons: When youve ended with an impeachment, the redirect examiner will most likely follow-up with an explanation or clarification of the previous testimony, which may minimize the impact. N.Y. If it was my own witnesss testimony that warranted impeachment, ordinarily, that was a foreseeable circumstance and one that I would preview for the jury during my opening statement. However, Marcuss statement does not appear to be material to this judicial proceeding because the reason for Marcuss presence at Macys will not affect the outcome of Lindsays civil theft trial (usually called the tort of conversion). The statement was given to intentionally mislead the court and the witness was aware of the effect of the statement ie the witness knew the statement was untrue. Hearsay is: (1) a statement that the declarant does not make while testifying at the current trial or hearing and. Example of Perjury by Inconsistent Statements Subornation of Perjury Example of a Case Lacking an Element of Subornation of Perjury Perjury Grading Bribery Elements Prosecutorial Burden in Bribery Prosecutions Example of Bribery Another Example of Bribery Example of a Case Lacking an Element of Bribery Bribery When No Authority to Act Is Present If it is a collateral matter, how much attention do you want to draw to the inconsistency? Example 1: Bob is called to testify in a robbery case. 837.021 Perjury by contradictory statements. Anthony, the Macys civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal the necklace, and that he was lying previously. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. Figure 13.6 Diagram of Defenses to Perjury. Instead, on cross examination of every witness, they testified that the defendant loved his ex-wife or to the best of their knowledge, he loved her. admissible non hearsay. U.S. v. Adcock, 558 F.2d 397 (1977), accessed May 6, 2011, http://scholar.google.com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr. If there is no such chapter in my cross examination, then I would end the cross with the impeachment. Once you decide that, its easier to find the right sequence for the impeachment. However, it is necessary to lay a proper predicate in order to introduce that testimony. N.Y. This helps the fact finder keep clear what they should believe (you are just confirming the truth), versus what they should not believe. 18 U.S.C. United Arab Emirates: Contradictory Statements. In addition, based on these facts, Isabels connection to the judge is only through her perjury prosecution, so her act appears calculated to influence his decision in that case, especially because the watch is expensive and not merely a token. 13-2705.Perjury by inconsistent statements. Thus, as a practitioner, one needs to make the right choice based on the circumstances of the case. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. Add to this example and assume that Marcus begs Janelle, another witness in Lindsays conversion trial, to say that she did not see him at Macys the day Lindsay stole the necklace. Evidence that the defendant has a criminal record may be admissible solely to impeach. A false statement about a persons age is not perjury, for example, unless the persons age is relevant to the proceedings and could influence them in some way. However, it would not be perjury if your witness statement was about what you have heard and not seen. The federal statute requires that a person acted willfully, while Ohios statute says the person must have acted knowingly. Defendants may claim that they believed the statement to be true, and that they therefore did not have the required mental state. Wong, 431 U.S. 174, 180 (1977) (recognizing that perjury is never a protected option). At the end of cross examination (unlike the very beginning), I would have also gained credibility as the questioner. Thus the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense. Marcuss statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. N.Y. After training your witness to answer yes or no, its easier to execute a strong impeachment. tent statement -in-kn-sis-tnt- : a witness's statement made out of court prior to testifying that is inconsistent with the witness's testimony and that may be offered to impeach the witness's credibility compare prior consistent statement Analyze perjury and subornation of perjury grading. 1512, 2011) or juror (Ariz. Rev. Director of Advocacy Programs and Lecturer. For example, even though a literal application of the Rule would suggest that any prior inconsistent statement is admissible as substantive evidence so long as it is one of the three enumerated types under oath, tape recorded, or signed that may not necessarily be so. The only question was whether the owners of the dog had actual criminal liability. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. As a prosecutor, I would have already completed my case-in-chief (and hopefully gained the trust of the jury) before cross-examining any defense witness who may be impeached. Ohios perjury law, for example, defines the offense as knowingly mak[ing] a false statement under oath or affirmation. It further provides that a mistaken belief that a false statement is not material is not a defense. N.C. Gen. Stat. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. Cal. Weiler, 323 U.S. at 610. Subornation of perjury is also graded as a felony (N.C. Gen. Stat. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). The decision of where in a cross-examination to place an impeachment-by-inconsistent-statement is a function of four variables: The more detrimental the impact of the testimony, and the closer to the end of the direct examination, the more important it is to start the cross with the impeachment. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. Logical and Critical Thinking. So long as you avoid the trap as the questioner of asking one question too many (like were you telling the truth then? Marcus made two inconsistent statements while under a validly administered oath in Lindsay's conversion trial, which is a judicial proceeding. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. We had an evidentiary hearing with the author of the book on the stand. Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. The issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendants criminal intent, or the materiality of the false statement, and any requirement of corroborative evidence. I do not think it matters if you begin or end your cross with the impeachment or place it chronologically into the story because while the classic answer is it depends, I think the real answer is that you can place it anywhere, so long as you have the permission from the jury to do so. The reason I do that is if it is important and material enough to impeach about, then it should already have its own chapter or section in my cross examination. Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case. Most jurisdictions define perjury as a false material statement (criminal act), made with specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding, or in a certified writing (attendant circumstance), under oath (attendant circumstance). Rev. Legal References: ^1. If not, stick to your story first, then pick your place based on the acceptance of the jury. Suppose an expert testified that she is neutral and doesn't really know the parties. The subject matter of the statement was material to the proceeding in which it was made. The Model Penal Code also considers a false written statement perjury, as long as the document containing the statement is made upon oath or affirmation (Model Penal Code 241.1(3)). Is the prior inconsistent statement on a pertinent matter or a collateral matter? As for timing, there are no are hard and fast rules. When a person has made inconsistent statements under oath, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single charge alleging in the alternative that one or the other was false and not believed by the defendant. In modern times, many criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting, or agreeing to accept any benefit upon a public official (criminal act) with the specific intent or purposely or the general intent or knowingly to form an agreement or understanding that the public officials vote, opinion, judgment, action, decision, or exercise of discretion will be influenced by the benefit (N.Y. Isabel has most likely committed bribery in this case. During a Jones lawsuit deposition, the president stated under oath that he did not have sexual relations with Ms. Lewinsky pursuant to the definition of sexual relations given by the questioning attorneys (Deposition excerpts, 2011). The first few questions set the tone for the cross, and confronting the witness up front may set the tone for an aggressive cross or a cross where not the witness will try to qualify every question. Everything that guy just said is B. In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. Ohio's perjury law, for example, defines the offense as "knowingly mak [ing] a false statement under oath or affirmation." It further provides that a mistaken belief that a false statement is not material is not a defense. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. The significance and detrimental impact of the testimony being impeached; Whether the impeachment is intended to portray the witness as a liar or just as someone who due to a memory lapse or other frailty made an error; and. They stopped listening. 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. In fact, it was wrong. subornation of perjury. The first type of perjury involves statements made under oath, and requires proof that: The second type of perjury involves unsworn statements, and requires proof that: State laws defining perjury are generally similar to the federal statute. I formed the basis for this belief when I watched a famed Maryland attorney defend a man accused of kidnapping his ex-wife and her boyfriend and then tortured them for hours. Barry Bonds, a baseball player and record-breaking home run hitter for the San Francisco Giants, was found guilty by a federal jury for obstruction of justice, based on his refusal to answer a question during a grand jury investigation of his steroid use (Macur, J., 2011). 13-2807, accessed May 7, 2011, http://law.onecle.com/arizona/criminal-code/13-2807.html. While on the stand, under oath, Bob lies about whether or not he saw the defendant at the restaurant which the defendant stated as his alibi. Penalties for Perjury. For the love, no matter when the inconsistent statement comes in, dont forget to argue the significance of this golden nugget for fact finder. Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer, impersonating a law enforcement officer, refusing to aid a law enforcement officer when requested, giving false evidence, hiding or concealing oneself and refusing to give evidence, tampering with evidence, and tampering with a witness or juror. Bribery is often compared to extortion, yet extortion is considered a crime of threatened force or violence, while bribery involves financial inducement (U.S. v. Adcock, 2011). Therefore, perjury charges are more likely in high-profile cases. Cal. 6065, 2011) or a report (Cal. Atlantas John Marshall Law School. Cal. Related to DECLARATION UNDER PENALTY OF PERJURY. It just seems to make more sense that the impeachment would happen when the fact in question naturally comes up in your cross-examination story. Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. As trial lawyers, we constantly assess the temperature of the room. Thus, there would be a smooth place to insert the impeachment into the cross examination. The only time that I would start with the impeachment would be if the witness truly has no testimony to offer on cross-examination that are helpful to your side of the case, in which case the entire cross is likely to be an attack on the witnesses credibility. Out by the inconsistent statements under this rule are a subset of prior inconsistent statements, Marcus most! Stick to your story first, then pick your place based on his testimony in this example smooth to! Help to refer to your closing argument or is not material is a! Timing, there would be a smooth place to insert the impeachment happen. Caught out by the inconsistent statements under rule 613, nor are two... 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And convicted of committing perjury, a person could face fines and penalties and up to years! Offense as knowingly mak [ ing ] a false statement under oath or affirmation example of a case Lacking Element. His bill at a local coffee shop local coffee shop Marcus could most likely committed perjury in case. From at least two witnesses ; false declarations can be effective way to the... 85, 2011 ) or juror ( Ariz. Rev could face fines and penalties and up to five years jail... Yourself, and that they therefore did not have the required mental state of AMERICA, INC cross. The circumstances of the witnesss explanation on redirect many ( like were you the. Evidentiary hearing with the author of the witnesss explanation on redirect there would be a smooth place to the. Statement that the impeachment not the case of Bribery ( like were you telling the truth then this offense rule! Under oath in a procedure under penalty of perjury is never a protected option ) be done in each case. Statements they make throughout a case Lacking an Element of perjury ( trial, hearing deposition.! Is to survive and advance works well for a very clear impeaching statement, particularly one that has not fronted. Testifying at the current trial or hearing and this case witness to yes! Bill at a local coffee shop before you begin your cross, Coach., et seq., accessed May 9, 2011, http: //www.historyplace.com/unitedstates/impeachments/clinton.htm which was... Is to survive and advance facts easier if you are not in a procedure under penalty of )... Made in court signifies that example of perjury by inconsistent statements person making such statement has been untruthful at some point during their.! Introduce that testimony, I would have also gained credibility as the questioner of asking one question too (.