§ 22.10 PRIOR INCONSISTENT STATEMENTS: FRE 613
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§ 22.10. PRIOR INCONSISTENT STATEMENTS: FRE 613
The underlying rationale for Rule 613 is self-contradiction.156 Any prior statement, whether oral, taped, or written, and whether sworn or unsworn, may be used to impeach. It must, however, be the witness's statement, not a third party's statement.157
[A] Hearsay Rule and Inconsistent Statements
At common law, prior inconsistent statements were admitted only for impeachment. The statement was offered to show the inconsistency between the witness's trial testimony and pretrial statements, rather than to show the truth of the assertions contained in the pretrial statement.158 The latter use would violate the hearsay rule, which did not recognize an exception for inconsistent statements.159
In one important respect, the Federal Rules changed this approach. Under Rule 801(d)(1)(A), prior inconsistent statements taken under penalty of perjury and made at certain proceedings, are admitted as substantive evidence. In other words, there are two provisions on prior inconsistent statements: Rule 613 and Rule 801(d)(1)(A). The latter is considered in the hearsay materials.160
[B] Inconsistency Requirement
The prior statement must be inconsistent with the witness's trial testimony. Because the federal courts have adopted a liberal view of the inconsistency requirement,161 a direct contradiction is not required. In other words, the two statements "need not be diametrically opposed."162 For example, in a traffic accident case, a witness's prior statement that the "boys were trying to beat the traffic" should be admitted to impeach trial testimony that the "boys crossed the street." Under this approach, the witness will have the opportunity to explain away the inconsistency, and the jury, not the judge, determines credibility. A number of recurring situations are considered below:
Prior omission. If a witness's present testimony includes material facts that were omitted in the prior statement, the statement is inconsistent.163 Example: Witness said, "I killed him," at time of arrest; at trial, "I killed him in self-defense."
Prior lack ofknowledge. Prior statements that a witness had no knowledge about matters the witness is now testifying to are admissible under some circumstances.164
Current lack of memory. A witness's claim of a current lack of memory is more problematic. Because witnesses often forget, such a memory lapse would not necessarily be an inconsistency. However, in some circumstances, a claim of lack of memory is not credible and the statement is admissible.165
[C] Foundational Requirements
The two divisions of Rule 613 deal with different issues. Rule 613(a) is concerned only with written statements. It provides that a prior written statement need not be shown (or its contents disclosed) to a witness as a prerequisite to an examination on that statement.166 The rule provides, however, that the opposing counsel has a right to inspect the statement upon request,167 a provision "designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary."168
Rule 613(b) is the trickier provision. At common law, a witness must have been afforded an opportunity to explain or deny a prior inconsistent statement before extrinsic evidence of that statement was admissible. Typically, on cross-examination, counsel would direct the witness's attention to the time when, the place where, and the person to whom the prior statement was made. This requirement is fairer to the witness and saves time because the other side can attempt to rehabilitate the witness on redirect examination rather than recall the witness later in the trial. Moreover, there may be no need to introduce extrinsic evidence if the witness acknowledges the inconsistency.
In contrast, Rule 613(b) does not require that the witness be afforded an opportunity to explain or deny before extrinsic evidence is introduced, so long as the witness is afforded such an opportunity at some time during the trial.169 The federal drafters explained: "The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence. Under this procedure, several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement. Also, dangers of oversight are reduced."170
Thus, in federal practice, a foundation need not be laid when the witness first testifies.171 However, some federal courts recognize a trial court's authority under Rule 611172 to require a foundation.173
Exception. No foundation is required if the interests of justice would be defeated by insisting on an opportunity to "explain or deny." "In order to allow for such eventualities as the witness becoming unavailable by the time the statement is discovered, a measure of discretion is conferred upon the judge."174
[D] Extrinsic Evidence ("Collateral Matters")
Even if a proper foundation had been laid on cross-examination, extrinsic evidence of a prior statement was admissible at common law only if it did not involve a "collateral matter." The exact definition of what constituted a collateral matter was unclear.175 Rule 403 should control.176
[E] Statements in Opinion Form
Rule 701 governs the admissibility of lay opinion testimony. That provision adopts the modern view, which treats the opinion rule as a rule of preference as to the form of trial testimony. Thus, Rule 701 should not be applied to extrajudicial statements, because with an extrajudicial statement, counsel cannot ask the witness to be more specific if the witness denies making the prior statement.177
[F] Prior Inconsistent Conduct
Rule 613 does not govern impeachment by prior inconsistent conduct.178 No federal rule prohibits this type of impeachment, however, and therefore such evidence is admissible for impeachment purposes. Moreover, a party's inconsistent conduct may be introduced on the merits; admissions by the conduct of a party (sometimes known as "implied admissions") may be admissible substantively.179
[G] Impeachment by Silence
The constitutional issues concerning the use of an accused's silence are discussed in the next section. If there is no constitutional impediment, the relevance issue must be addressed. In United States v. Hale,180 a robbery defendant was arrested and advised of his Miranda rights. When asked where he had obtained the $158 in cash that was seized from him, Hale did not respond. At trial, he testified that the money came from his wife. On cross-examination, the prosecutor asked whether Hale had given this information to the police when questioned shortly after his arrest. The Supreme Court did not decide the issue on constitutional grounds. Instead, the Court held that silence in these circumstances was, as a matter of federal evidence law, not inconsistent with a defendant's trial testimony. The Court therefore excluded the evidence.
[H] Constitutional Issues
The Supreme Court has carved out an impeachment exception to the constitutionally derived exclusionary rule. In Harris v. New York,181 the Court held that statements obtained in violation of the Miranda (Fifth Amendment) requirements may be used for impeachment. In Kansas v. Ventris,182 the Court extended this exception to statements obtained in violation of the Sixth Amendment right to counsel. In contrast, involuntary (coercive) confessions cannot be used for impeachment.183
Similarly, the Court has permitted the...
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