Prior Inconsistent Statements
| Publication year | 1988 |
| Pages | 1977 |
1988, October, Pg. 1977. Prior Inconsistent Statements
The testimony of witnesses usually makes or breaks a case. Impeaching a witness with a prior inconsistent statement can be an effective way to impeach the witness' credibility and turn a jury around. However, the use of a prior inconsistent statement has certain dangers (including that of rehabilitation of the witness with prior consistent statements) which must be evaluated before this type of impeachment is conducted. This article attempts to summarize the state court rules concerning the use of prior inconsistent statements.(fn1)
The use of prior inconsistent statements is governed by one statute and two evidentiary rules. The statute, CRS § 16-10-201, enacted in 1972, establishes a method for admitting prior inconsistent statements as substantive evidence. C.R.E. 613 governs the use of prior inconsistent statements for impeachment purposes and C.R.E. 801(d)(1) eliminates, in certain situations, the possible hearsay objection to the use of either consistent or inconsistent prior statements. The method for admitting a prior inconsistent statement turns on the purpose for which the prior statement is being admitted.(fn2)
C.R.E. 613, adopted in 1980, retains the traditional common law foundational requirements.(fn3) To admit a statement for impeachment purposes under C.R.E. 613, the proponent of the statement must first confront the witness with the prior statement, and give the witness an opportunity to explain or deny the statement.(fn4) If the witness admits having made the statement, there is no need to introduce other evidence of the existence of the statement and, in fact, such extrinsic evidence is barred.(fn5)
If the witness denies having made the prior statement, then, of course, extrinsic evidence of the statement is necessary. C.R.E. 613 permits the introduction of such evidence, which can consist of the statement itself or the testimony of a witness who heard the prior statement.(fn6)
A prior inconsistent statement admitted under this method can only be used for impeachment purposes, and an appropriate limiting instruction should be given to the jury.(fn7)
It is simpler to admit a prior inconsistent statement for the purpose of substantive evidence. In addition to the traditional method under C.R.E. 613, discussed above, CRS § 16-10-201 provides that the prior inconsistent statement can be admitted as substantive evidence any time the witness who purportedly made the statement is still available to testify.(fn8) This condition is met if the court simply tells the witness to remain available for recall to the stand.(fn9)
The statute does also require that the prior inconsistent statement purport to relate to a matter within the witness' own knowledge.(fn10) However, this condition rarely adds to the foundational requirements because a witness' testimony normally is limited to matters within his or her own knowledge.(fn11)
Once these foundational requirements are met, the prior inconsistent statement can be used by the jury as substantive evidence. Thus, a statement introduced through this procedure can be used for the truth of its contents as well as its impeachment value.(fn12)
Because of the different procedures, it is easier to introduce a prior inconsistent statement as substantive evidence than it is to introduce it for the limited purpose of impeachment. However, the better practice would be to continue using the traditional approach of C.R.E. 613 regardless of the purpose for which admission of the statement is sought. There are four reasons for this conclusion.
1. From a theoretical point of view, it is appropriate to require stricter foundational requirements for substantive evidence than for impeachment evidence. In fact, this is generally the case.(fn13)
2. The traditional approach can conserve judicial resources. If a witness is...
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