Negative Impeachment

What is negative impeachment?

Negative impeachment is impeachment relating to prior testimony, primarily in the form of written and sworn affidavits. Impeachment is a legal term that describes questioning a witness or producing specific evidence that shows that certain testimony should be discredited. Negative impeachment comes into play by focusing on the lack of something in a prior testimonial instrument, such as a police affidavit.

For example, negative impeachment comes into play where a police officer leaves out crucial information in their police report. Defense attorneys can attack the lack of this information by pointing out that he’s testifying to it at trial, yet never included it in his police report. The goal is to show that the officer isn’t credible because he appears to be adding language that he never included previously. Hence, it is the attacking of credibility through the lack of a previous record or statement.

Is it allowed?

Yes. It is. Negative impeachment is specifically allowed and laid out wonderfully by several key cases. The most important case on point is likely McBean v. State, 688 So.2d 383 (Fla. 4th DCA 1997). In McBean, the 4th District Court stated that “it is well settled that a witness may be impeached by a prior inconsistent statement, including an omission in a previous out-of-court statement about which the witness testifies at trial, if it is material and would naturally have been mentioned. In other words, negative impeachment IS ALLOWED, but it is allowed ONLY IF the omission is both (a) material, and (b) would naturally have mentioned. Therefore, negative impeachment is not allowed on ancillary side issues. But where it is a core issue that is material and natural to the type of statement given, negative impeachment is allowed in order to show that omission.

Examples in an actual trial.

For our case example on negative impeachment, we look at that same case previously mentioned, McBean v. State. In McBean, the 4th District Court of Appeals focused on whether it was permissible for a Trial Court to prevent Defense Counsel from impeaching a key witness on the timeline of the events. The Court stated that the timeline of events for a key witness was material and was proper territory for a negative impeachment attack. Therefore, the Trial Court messed up. The Court reversed and remanded for a new trial.