Q: Can previous interrogatories and admissions be used in appeal case from JDR to Circuit Court in Virginia?
I was granted primary custody of a child in July. The other party appealed and they were granted a trial de novo in Circuit Court. We are both currently pro-se. I previously submitted admissions and interrogatories for the case in July. The other party responded but did not provide their own admissions or interrogatories. I submitted the same admissions and interrogatories for the appeal case, but the other party has changed their answers and provided contradicting information. For example, they previously admitted to some statements that they are now denying. Can both sets be used in court to show lack of credibility and honesty if I submit them as evidence or can I only reference the latest set of answers?
A:
A witness can be impeached by prior inconsistent testimony or sworn responses in discovery. Impeachment requires a particular sequence of questioning that allows the witness to first give correct testimony, recollect instances of prior testimony, and then acknowledge prior inconsistencies. There are treatises on trial practice that address this subject. Doing this well is an art based on practice and experience. Some trial lawyers, even good ones, will screw this up from time to time. Some judges will even instruct trial lawyers on how to do they want this done during the course of a trial when the lawyer is struggling with the witness. I would be amazed to see a pro se party do a good job of impeaching a witness.
There are different ways to use transcripts of prior sworn testimony in a court case: for impeachment, as judicial admissions along with pleadings and positions taken, and sometimes in lieu of live testimony in the case of de bene esse depositions. Some lawyers and laypersons erroneously believe that any prior sworn testimony can be filed in a case and thereby becomes evidence in the case in chief. You should consult with an experienced Virginia family law lawyer about how to best use prior inconsistent testimony.
Tim Akpinar agrees with this answer
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