It’s not uncommon in the course of handling personal injury cases to run across important witnesses who are reluctant or simply refuse to testify. Even a witness subpoena does little to solve the problem of the eyewitness who decides to have a memory lapse. We ran across such an adverse witness recently in an auto/truck collision case. An 18-wheeler driver was sitting in the left turn lane in the early morning hours waiting on a left turn arrow when another trucker made an illegal left turn from the right through lane and collided with a passenger car. The college student in the passenger care was severely injured and semi-conscious at the scene. The 18-wheeler driver left the scene before the police arrived but not before being seen by passersby. The negligent truck driver reported to the police that he was making a legal left turn on a left arrow and that the accident was caused by the college student.
When our private investigator located and interviewed the 18-wheeler driver that had witnessed the accident the driver refused to give a statement and stated that if subpoenaed he would not remember anything. When pressed he stated that he was simply “not going to hang another trucker out to dry”.
Witnesses can be impeached with their prior inconsistent statements. Texas Rule of Evidence 613(a) provides that before a witness may be impeached he must be told the contents of the prior statement and given an opportunity to explain or deny the statement. In our case the 18-wheeler driver could be called to testify and questioned in detail regarding his statement the he was not going “to hang another trucker out to dry.” If he admitted the statement then he would not be further impeached. If he denied the statement then the evidence cases provide that he may be impeached by any competent evidence or witnesses. In our case the private investigator would be called to testify as to the prior statements. Either way the effect on a jury would be obvious.