I was recently involved in a car wreck case in which plaintiff’s counsel firmly believed that my client was using her phone at the time of the accident. The only problem was … the facts didn’t support his assertion. There wasn’t even one tiny, little fact that he could present to the jury to support his belief. But never one to let facts get in the way of a theory, he had a plan. A plan that involved him impeaching the defendant by asking her irrelevant questions and then using immaterial evidence to impeach her with.
Getting Snared in the Web
During the defendant’s deposition, the plaintiff asked her if she was using her phone at the time of the accident. She said she was not. So he asked her that question about half-a-dozen different ways trying to elicit a different response. After the defendant stood her ground and gave consistent answers, the plaintiff deployed his trap,
Q: But there are times you do text while driving, right?
A: It’s very rare, if I ever do it. And I have a voice-to-text app that I can use so I don’t have to look away from the road. I mean, I have a two-year-old little boy, you know. Plus it’s illegal.
Q: But when you’re driving, do you sometimes use the phone whether it’s for videos or pictures or browsing the internet or any of those things?
Q: Is that something you never do?
A: I don’t ever do that if I’m driving.
Q: Okay. Well, videos — do you record videos while driving?
A: No. My phone is hooked up to the car.
And that was it. At that point, the defendant was like one of those insects who’s been snared in a web and doesn’t know it yet. The spidery lawyer sprung on her with a video he had pulled from her Facebook page for just this occasion. The video showed the defendant recording her son who was singing in the back seat of the car. She was in the driver’s seat in her church parking lot, navigating the stop-and-go traffic of one of Birmingham’s mega-churches and recording her toddler while stopped.
There it is. She said she never records video while driving. But he had video of her doing so. A couple of important things here: (1) there was still no evidence that she was using her phone in any way at the time of the accident, and (2) the impeachment video was taken nine months after the accident. He had his impeachment evidence but it was irrelevant to anything that happened on the roadway the day of the accident.
Rules for Impeaching a Witness
There are only certain ways that impeachment evidence can be used, and Alabama Rules of Evidence 607 and 608 set these out.
The credibility of a witness may be attacked by any party, including the party calling the witness.
(a) Opinion and reputation evidence of character. The credibility of a witness may be
attacked or supported by evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’s character for truthfulness, other than
conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of
the witness nor proved by extrinsic evidence. They may, however, if probative of truthfulness
or untruthfulness, be inquired into on cross-examination of the witness concerning the
character for truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
Impeaching a Witness with Irrelevant Evidence
The plaintiff wanted to use video from nine months after the accident to attempt to impeach the defendant on her testimony about phone usage while driving, when the only available documents supported the defendant’s testimony that she was not using the phone at the time of the accident. This is not a proper method impeaching her, because the purportedly impeachable testimony is irrelevant and immaterial to the facts that will be determined by the jury. “It is improper impeachment if, after a party elicits immaterial testimony from a witness, that party seeks to impeach the witness by the witness’s own testimony … on the immaterial matter.”
Impeaching a witness is allowable when the proffered evidence relates to a material issue. But when a question calls for “patently immaterial and irrelevant testimony,” impeachment is improper, as “a witness may not be impeached by showing that she has made contradictory statements about immaterial matters.
Even if the plaintiff had intended to use the video footage not to impeach the defendant directly, but rather to show evidence of her character, it was still not a permissible use. Alabama Rule of Evidence 404 precludes evidence of a person’s character or a character trait to prove conformity therewith on a particular occasion. The video couldn’t be used to suggest to the jury that she had used her phone on one occasion, so she must also have been using when the accident happened.
In short, the video didn’t have any permissible method of being admitted and seen by the jury. So if you’re laying a trap to ensnare some unwitting witness, be sure that the evidence you’re using and the testimony you’re obtaining are material to case. Otherwise, you’ll just have wasted all that cleverness and plotting.
 Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App. 1995) (quoting Tarver v. State, 500 So.2d 1232, 1243 (Ala.Crim.App. 1986)).
 Pope & Quint, Inc. v. Davis, 485 So. 2d 1134, 1137 (Ala. 1986).
 King v. State, 171 So. 254, 256 (Ala. 1936); Smith v. State, 73 So. 2d 916, 919 (1954) (holding, “The effect of the question was to impeach [the witness] on an immaterial matter, which is not allowable.”).
 See Ala. R. Evid. 404(a).