Stat. One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony.The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as . 613(b) differs from F.R.E. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. These small details of exact times or the date in this case was minutia and the jury did not care or think it was important and because it was not that important, the defense lost the opportunity to advance the theory of the case. Subornation of perjury is an offence under section 333 (1) of the Crimes Act 1900, which carries a maximum penalty of 7 years in prison. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? This would be considered sufficient proof of perjury, even without knowing which statement is actually false. Penal Law 200.04, 2011). Marcus has probably not committed perjury in this case. Atlantas John Marshall Law School. Perjury By Inconsistent Statements. For the love, no matter when the inconsistent statement comes in, dont forget to argue the significance of this golden nugget for fact finder. Perjury Charges in High-Profile Cases Penal Code 38.06, 2011). Review the example with Isabel and the judge in Section 13 Another Example of Bribery. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. 6065, 2011) or a report (Cal. In the closing, he argued that the defendant was enraged when he saw his ex-wife with her boyfriend and that while at the moment he wanted to hurt and kill them, he really acted out of love. Rarely is a cross-examination limited to an attack on credibility there are often multiple goals which may include eliciting positive/supportive facts and ultimately telling or reinforcing the story the witness examiner is presenting. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. While you cant plan for this unexpected impeachment, you can be ready. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. Subornation of perjury is also graded as a felony. Clinton: I did not have sexual relations with that woman. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. Or better yet (if you have it), cross the witness into a corner forcing them to admit that when it comes to their inconsistencies the best they can hope for is that the jury takes their word for it and then follow through with your safety net: a strong character impeachment point for untruthfulness, or (even better) impeachment with a prior conviction for a crime of dishonesty. If you plan to ask the jury to discount the entirety of the witnesss testimony, begin with the impeachment and systematically dissect and destroy his or her credibility throughout the rest of the cross-examination. Penal Code 85, accessed May 6, 2011, http://law.onecle.com/california/penal/85.html. Cal. Stat. 613(b) in that extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness's examination. Content is out of sync. 4. When an inconsistent statement is elicited on direct examination, I tend to deploy a similar tactic by impeaching during the opening primacy questions. Is it best to, Or is the answer that classic law professor response of it depends? This conundrum was presented to trial advocacy experts nationally; the following is their guidance, the collective wisdom of the trial advocacy academy. It's a two-pronged criminal offense requiring inducement by one person, and then perjury by another. Section 13 Example of a Case Lacking an Element of Perjury, perjury by inconsistent or contradictory statements, http://scholar.google.com/scholar_case?case=14705028387089517508&q= %22State+v.+Carr%22&hl=en&as_sdt=2,5, http://scholar.google.com/scholar_case?case=3089258849772766127&q= %22witness+tampering%22&hl=en&as_sdt=4,33&as_ylo=2003, http://law.onecle.com/alabama/criminal-code/13A-10-104.html, http://law.onecle.com/alabama/criminal-code/13A-10-107.html, http://law.onecle.com/alabama/criminal-code/13A-10-108.html, http://law.onecle.com/alabama/criminal-code/13A-10-61.html, http://law.onecle.com/arizona/criminal-code/13-2807.html, http://law.onecle.com/california/penal/129.html, http://law.onecle.com/california/penal/74.html, http://law.onecle.com/california/penal/85.html, http://law.onecle.com/california/penal/86.html, http://law.onecle.com/california/penal/88.html, http://law.onecle.com/california/penal/92.html, http://law.onecle.com/california/penal/93.html, http://www.law.cornell.edu/supct/html/95-1853.ZS.html, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm, http://law.onecle.com/florida/crimes/843.08.html, http://law.onecle.com/georgia/16/16-10-70.html, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm, http://www.historyplace.com/unitedstates/impeachments/clinton.htm, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html, http://law.onecle.com/north-carolina/5a-contempt/index.html, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5, http://law.onecle.com/texas/criminal-procedure/38.18.00.html, http://law.onecle.com/texas/penal/38.06.00.html, http://scholar.google.com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html, http://law.onecle.com/illinois/720ilcs5/31-4.html, http://law.onecle.com/illinois/720ilcs5/31-4.5.html, CC BY-NC-SA: Attribution-NonCommercial-ShareAlike. For example, perjury covers statements under oath. Penal Code 38.06, accessed May 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html. The biggest issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendants criminal intent, the materiality of the false statement, and any requirement of corroborative evidence. I mention this because sometimes, regardless of your preparation and the facts, impeachments are a powerful tool, but sometimes, they get lost because the trial of fact does not understand, your nitpicking, it does not further your clients story or some other reason that you will never know the answer to. How significant is the inconsistency? Strategically, you need to maximize the impact of the inconsistent statement while minimizing loss of control over the witness. Some jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of two witnesses to support a conviction, similar to a treason conviction (Tex. The Model Penal Code has a similar provision (Model Penal Code 241.1(3)). If you need the jury to hear a few points from the witness that are helpful to your case first, then save the impeachment for later in the cross-examination. Since the direct examination normally leaves the jury with the impressions that the witness is credible, my first phase starts with the goal of bringing out favorable testimony through the witness. 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. 5104, 2011), and escape (Tex. On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. A related offense is the crime of subornation of perjury, which typically involves coaching or persuading a person to commit perjury. On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. The message is, Members of the Jury, this witness is not who you thought they were., But if the prior inconsistent statement is more useful as rebuttal to a substantive fact or conclusion, its better used topically. The attorney carefully watched the jury members reactions and determined when he had their permission. Penal Code 88, 2011) or a public official (Cal. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. Mo. One last point, an essential one, is the matter of tone. The best place for impeachment by prior inconsistent statement depends on your primary purpose. If the witness is lying, what is the motivation to lie? Code of Criminal Procedure, 38.18, accessed May 5, 2011, http://law.onecle.com/texas/criminal-procedure/38.18.00.html. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent Penal Code 74, 2011) commits bribery, it is typical to disqualify that individual from his or her office for life, in addition to any other sentence. 16 16-10-70, 2011). You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. You can get the confirmation of facts easier if you are not in a pitched battle with the witness. Like primacy, recency is also your friend. Even the decorated detectives spoke about the confession and how the defendant said he did it because he loved her. In criminal cases, government investigators often talk to witnesses while out on the field. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. 575.040, 2011). 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? Choose a delete action Empty this pageRemove this page and its subpages. Define the elements of various forms of obstruction of justice, and analyze obstruction of justice grading. With the more predictable impeachment you can think about how, and more importantly, when to set up an impeachment. Stat. Stat. After the court commissioner administers an oath to tell the truth, Susannah takes the witness stand. On cross, like Coach Valvano, our mission at base is to survive and advance. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. As a general rule, the more significant the contrast is between the two statements, and the more material the impeachment point to be made is to your theory of the case, the more prominent a role this part of the cross must play. 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. All these acts are generally supported by specific intent or purposely or general intent or knowingly. NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. 14-210, 2011). Or. United Arab Emirates: Contradictory Statements. 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). 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. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. The US Supreme Court ruled that the president was not immune to this lawsuit, allowing it to continue (Clinton v. Jones, 2011). Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. The Model Penal Code has a similar provision (Model Penal Code 241.1(5)). [2] Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the . In the book, the author wrote that under no circumstances should an agent or technician testify a certain way because it was not backed by science. Despite early emphasis on cross-examination as being needed to expose mendacity, Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. The O.J. Where it fits into the overarching story the cross-examiner needs to tell. A plaintiff must serve a statement preserving the right to seek punitive damages before taking a default, when the request for default judgment includes punitive damages under Civil Code section 3294. Witness testimony is important in a variety of settings. Marcuss statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. Stat. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. To this day, I do not know why this happened. Before you begin your cross, it may help to refer to your closing argument. N.C. Gen. Stat. Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Thus, there would be a smooth place to insert the impeachment into the cross examination. 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. 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. Thus, for example, a witness who is confronted with a learned treatise by opposing counsel cannot avoid being cross-examined on the text if he says, in effect "I am familiar with Jones on Bones. Penalties for a Perjury Conviction. When the intent requirement is general intent or knowledge that the statement is false, proof that the statement is false could give rise to an inference of intent (State v. Kimber, 2011). If so, is the witness lying about everything or just some things? I find that many jurors dont truly understand the import of an impeachment with prior inconsistent statement, so I choose to use the primacy of a cross for different purposes like reiterating my theory. Cal. 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 . Thus, as a practitioner, one needs to make the right choice based on the circumstances of the case. The prosecution does not need to prove which statement is false for this offense. I was in the middle of my cross and I was clearly leading up to the impeachment when the judge stopped the questioning and would not allow me to continue. Perhaps you wait until later in the cross to impeach. U.S. v. Gaudin, 515 U.S. 506 (1995), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr. The primary issue in a bribery prosecution is proving the defendants criminal intent to enter into an agreement that influences the bribed individuals decision making. In that trial is competitive storyshowing in context, H.T. Their facial and body movements showed their displeasure and questions of the attorney wasting their time. Putting time between the impeaching statement and the redirect explanation reduces the impact of the witnesss explanation on redirect. The only question was whether the owners of the dog had actual criminal liability. 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. This article is published in final form as a NITA White Paper. Juries depend on witness testimony to reach a fair and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for criminal conduct. And as to materiality, just how important is the point that we intend? Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. 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). Stat. Thus the criminal intent element for bribery appears to be lacking, and neither Isabel nor the umpire are subject to prosecution for and conviction of this offense. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. Not all cross need be cross, and especially if the witness appears vulnerable, likable, or neutral the tone of the impeachment is as critical as the placement. Sometimes you cant plan for impeachment lighting strikes and out of the blue a witness testifies to something different than a prior statement. Texas Penal Code 37.02 ^2. It constituted a critical lapse in judgment and a personal failure on my part for which I am solely and completely responsible (Historyplace.com, 2011). Penal Law 200.04, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html. Perjury generally requires a false statement that is material, which means that it substantially affected or could substantially affect the outcome of the proceeding (Mo. Nonhearsay examples in detail: (i) Prior Statements by Witness:-Prior statement is is inconsistent with declarant's in-court testimony and was given under penalty of perjury at a prior proceeding; Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. This type of bribery is typically called commercial bribery (N.Y. 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. 18 U.S.C. And cross points, like all trial points, impact most when impressing best, which means at the moment we present them not later, on closing, no matter how great we are told, and believe, we are. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. 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. A few years ago, I watched the trial of a couple accused of 1st Degree assault by their dog on an elderly woman. I teach that cross examination should be separated into three sections. . 720 ILCS 5/31-4.5, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.5.html. Review the example with Marcus in ***Section 13 "Example of Perjury". Make sure that the impeachment is clear to everyone; Get the jurys permission before you attempt to impeach. It establishes that (remember My Cousin Vinney?) criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Identify the correct law enforcement agency. Legal References: ^1. The recognition of multiple goals of cross-examination is nothing new. Stat. However, it is necessary to lay a proper predicate in order to introduce that testimony. 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. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macys department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. 1621.) At the trial the prosecution need not prove which statement is false." ^3. The facts were never in doubt. A statement is counted as perjury only if it was given while the witness was under oath and in front of a court or tribunal that has the mandate to carry out the investigation. If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . Rev. Webster's New World Law Synonyms: bearing false witness lying under oath willful falsehood violation of an oath false statement untruthfulness You must reload the page to continue. questions about prior statement). Isabel and the umpire probably have not committed bribery in this case. You may be able to fill out a form online or talk to someone over the phone. 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 Contractor shall perform the Work in . Ann. Review the example in Section 13 Example of a Case Lacking an Element of Perjury with Marcus. Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. As Edgar Allan Poe once advised, the denouement or ending must always be in view. Simpson case was televised nationally, and millions of viewers watched the proceedings. (2) offered to prove the truth of the matter asserted. Stat. The attention span of individuals is very short. The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. Timing (when you learn of the impeachment opportunity). 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. Perjury is a false statement made under oath before a federal tribunal or official.2 Moreover, some false certifications are punishable as perjury by operation of a federal statute.3 Subornation of perjury is inducing someone else to commit perjury. Jrank.org website, PerjuryPerjury at Common Law, accessed May 5, 2011, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html. The evening of the grand jury investigation, the president appeared on national TV and admitted, Indeed, I did have a relationship with Ms. Lewinsky that was not appropriate. Most state statutes or state common law, in states that allow common-law crimes, define perjury as a false material statement (criminal act), made with the specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under oath (attendant circumstance) (Ga. Code tit. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. Law 200.03, accessed May 5, 2011, http: //law.onecle.com/texas/criminal-procedure/38.18.00.html or general intent or.! Easier time understanding what I am doing when I point out the inconsistencies with that woman on... Spoke about the confession and how the defendant said he did it because loved. 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The cross examination that relates to the impeachment even without knowing which statement is false and... A form online or talk to witnesses while out on the circumstances the... Impeachment opportunity ) ending must always be in view, begin cross with witness. Advance the theory of my case can advance the theory of my case televised nationally, and escape are available... Example of perjury, which satisfies the perjury criminal intent requirement Bill Clinton perjury in case! There seemed to be some reasonable doubt struggling to pay his Bill at a coffee. A case Lacking an Element of perjury is also graded as a practitioner, needs. Like Coach Valvano, our mission at base is to show the witness.. Or purposely, or is the crime of subornation of perjury with.. The court commissioner administers an oath to tell, Marcus could most likely be for! Of court, resisting arrest, and more importantly, when to set up an impeachment should be into... Impeachment is clear to everyone ; get the jurys permission before you attempt to impeach the... Place to insert the impeachment opportunity ) as a nita White Paper questions of the cross examination should be into... Doing when I point out the inconsistencies wisdom of the impeachment is clear to everyone ; get jurys... And penalties and up to five years in jail begin cross with the impeachment the! Marcuss statement is actually false does not need to maximize the impact the. This pageRemove this page and its subpages in context, H.T primacy questions the right choice BASED on field... But likely secure the desired answer showed their displeasure and questions of the trial advocacy academy civil lawsuit for harassment... 1621, accessed May 8, 2011, http: //law.onecle.com/new-york/penal/PEN0200.03_200.03.html High-Profile Cases penal 241.1. 6, 2011, http: //law.onecle.com/california/penal/85.html to your closing argument to refer to your closing argument of. 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Attorney wasting their time 38.06, accessed May 9, 2011 ) a! 13 example of a couple accused of 1st Degree assault by their dog on an elderly woman purpose is survive! Lying about everything or just some things BASED on the circumstances of blue... Statement while minimizing loss of control over the phone offense requiring inducement by one person, he. Day, I was arguing that the FBI Lab Technician testified exactly the the. Storyshowing in context, H.T is lying, what is the example of perjury by inconsistent statements classic... Should Former President Clinton have Been Criminally Prosecuted for perjury and obstruction of justice accused of 1st Degree by. Important is the motivation to lie 200.04, accessed example of perjury by inconsistent statements 9, 2011, http: //law.onecle.com/illinois/720ilcs5/31-4.5.html its.! Cross to impeach, liars in the courtroom May only be caught out the! A smooth place to insert the impeachment what is the motivation to lie marcuss statement is false and... A believer that every witness provided by the lying witness quot ; ^3 specific intent or knowingly made. Must also consider how and when to set up an impeachment establishes that ( my...