Jeffrey P. Gale, P.A. // Florida Evidence Law – Impeaching on Collateral Issue Impermissible

gavel-952313-m.jpgUndermining a witness’ credibility can make the difference between winning or losing a case. A popular method of impeachment is by demonstrating differences in present and former testimony. This method is illustrated in this blog — Florida Personal Injury Law — No Substitute for Solid Pretrial Discovery

The right to impeachment is not unlimited. Generally, it is not permissible on collateral issues. See, e.g., New England Oyster House of N. Miami, Inc. v. Yuhas, 294 So.2d 99 (Fla. 3d DCA 1974) (holding, in action for injuries sustained by plaintiff when she tripped and fell on concrete curb and where plaintiff dropped claim for lost wages, trial court properly refused to permit defendants to impeach plaintiff’s credibility with statement in her deposition that she lied on her income tax returns); see also Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) (“The test for determining whether a matter is collateral or irrelevant is whether the proposed testimony can be admitted for any purpose independent of the contradictions.”) (quotations omitted).

In the case discussed in the above cited blog, the defendant’s second deposition testimony concerning a key, relevant issue was diametrically different than it was in his first deposition, sworn answers to interrogatories, and responses to requests for admissions. If this witness takes the witness stand at trial, set for late January, 2015, and repeats his second deposition testimony, the court will not hold us back from challenging his credibility with prior statements. The court will not limit our attack because the inconsistent evidence concerns a relevant issue.

In contrast, the defendants in that same case will not be allowed to impeach our client, the Plaintiff, on a collateral issue. Our 78 year old client fell through a deck/dock under repair while strolling behind an acquaintance’s house at night. While the defendants failed to post warnings or barriers, they are blaming the accident on our client for having impaired vision. From past medical records that she provided to defendants, it was discovered that she had a laser procedure done on her eyes five years before the accident which she failed to mention in her deposition.

While she didn’t mention it because she didn’t recall it — it was a minor procedure — defendants would nevertheless like to present it to the jury as a lack of credibility.

There’s only one problem for the defendants: the laser procedure had no affect whatsoever on our client’s visual acuity on the night of the accident. Two ophthalmologists deposed under oath in the case have said so. Hence, that our client failed to mention the procedure, for whatever reason, is irrelevant.

The Foster case illustrates my point.

In Foster, the appellant was convicted for leaving the scene of a crash with injuries. Foster asserted that the crash occurred because his brakes failed. An inspection of the brakes ascertained them to be functional. Over objection, an officer was allowed to testify with regard to the condition of the brakes. The trial court allowed the officer’s testimony “based on the rationale that the evidence went to Foster’s credibility.” Foster’s conviction was reversed and a new trial ordered. The court reasoned: “We conclude that reversal is required on this issue because Officer Stevens’ testimony was offered to impeach Foster’s credibility on a collateral issue: whether or not the brakes were a cause of the accident … the cause of the accident was not relevant to the crime charged, and the testimony impeaching Foster as to the cause of the accident could have swayed the jury to find Foster guilty for an improper reason.”

Just as in Foster, where the function of the defendant’s brakes had no relevance to the crime for which he was charged, the laser procedure done four years before the accident is entirely irrelevant to our client’s visual acuity on the night of the accident. As such, attempting to impeach our client for failing to mention the procedure is impermissible.


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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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