§613 Impeachment with Prior Inconsistent Statements

• Library: Evidence Restated Deskbook (2021 Ed.)

§613 Impeachment With Prior Inconsistent Statements

A. General rule. A witness may be impeached with a prior inconsistent statement.

B. Foundation requirements

1. Cross-examination. To impeach a witness with a prior inconsistent statement, the witness must be given a chance to refresh his or her recollection of the previous statement and to admit, deny, or explain it. This requires that the cross-examiner must:

a. quote it or, if in writing, quote it or show it to the witness for the witness's examination; and

b. call the witness's attention to the time, place, and circumstances under which the statement was made and the person to whom it was made; and

c. ask the witness whether he or she made it.

2. Extrinsic evidence. Generally, a party may only introduce extrinsic evidence of a prior inconsistent statement if:

a. on cross-examination, the witness does not unequivocally admit having made the statement; and

b. the subject of the impeachment is material to the issues, rather than collateral.

Notes

A. General rule

A prior statement of a witness that is inconsistent with the testimony of the witness at trial may be used to impeach the credibility of the witness. See Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010).

A prior inconsistent statement may be used as substantive evidence as well as to impeach a witness

See §801.D of this deskbook.

Trial court discretion

A trial court has broad discretion in determining "the extent and scope of cross-examination, including the impeachment of a witness by use of a prior inconsistent statement. [Absent an abuse of discretion,] [t]he [trial] court's rulings on such matters will not be disturbed on appeal." Reno v. Wakeman, 869 S.W.2d 219, 223 (Mo. App. S.D. 1993); Long v. St. John's Reg'l Health Ctr., Inc., 98 S.W.3d 601, 605–06 (Mo. App. S.D. 2003).

But when "a witness's prior inconsistent statement relates specifically to a paramount issue in the case, the trial court may not prevent impeachment of the witness through use of that statement." Reno, 869 S.W.2d at 224; Haffey v. Generac Portable Prods., L.L.C., 171 S.W.3d 805, 810 (Mo. App. S.D. 2005).

Not about a collateral or immaterial matter

A trial court may exclude a prior inconsistent statement concerning an immaterial or collateral matter—i.e., when the only purpose of showing the prior inconsistent statement is to show that the witness said something different at a prior time:

A matter is considered to be collateral if the fact in dispute is of no material significance in the case or is not pertinent to the issues developed. In contrast, a matter is not collateral if the alleged discrepancy involves a crucial issue directly in controversy or relates to any part of the witness' account of the background and circumstances of a material transaction, which as a matter of human experience he would have been mistaken about if his story was true. If a fact may be shown in evidence for any purpose independent of contradiction, it is not collateral.

Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004) (citations and internal quotations omitted); see, e.g., State v. Mitchell, 693 S.W.2d 155, 158–59 (Mo. App. E.D. 1985) (no error in excluding extrinsic evidence of a prior inconsistent statement because the inconsistency related to a collateral matter—whether the witness gave police four or five digits from a license plate); Peters v. ContiGroup, 292 S.W.3d 380 (Mo. App. W.D. 2009) (in an action brought against a hog farm operator for maintaining a nuisance, there was no error in excluding the hog farm operator's testimony in his unrelated property dispute against the city because its "purpose was merely to make [him] appear hypocritical for not being sympathetic to [the plaintiffs'] claims even though he had earlier raised similar concerns as to his own family," a totally irrelevant and collateral matter); Mansfield v. Horner, 443 S.W.3d 627 (Mo. App. W.D. 2014) (no error in excluding extrinsic evidence of an inconsistent statement made during the witness's pretrial deposition because the inconsistency was of no significance to the case and was collateral—the fact that Rule 57.07 states that "[d]epositions may be used in court for any purpose" does not mean that a deposition may be used to impeach a witness or to rehabilitate a witness's credibility without any limitation).

B. Foundation requirements

1. Cross-examination

To impeach a witness with a prior inconsistent statement, the witness must be given a chance to refresh the witness's recollection of the previous statement and to admit, deny, or explain it. Aboussie v. McBrown, 421 S.W.2d 805, 807 (Mo. App. E.D. 1967).

On cross-examination it is necessary to quote it, if oral, and call the witness's attention to the time, place, and circumstances under which the statement was made and the person to whom it was made. State v. Bennett, 87 S.W.2d 159 (Mo. 1935).

If in writing, in addition to pointing out the precise circumstances under which it was made (time, place, etc.), the statement should be quoted, Nichols v. Preferred Risk Grp., 44 S.W.3d 886, 892–93 (Mo. App. S.D. 2001), or shown to the witness for the witness's examination, State v. Stein, 79 Mo. 330 (1883). The witness should then be asked whether the witness made the statement. Nichols, 44 S.W.3d at 892–93; Eissler v. Londoff, 677 S.W.2d 358, 360 (Mo. App. E.D. 1984).

If the prior statement is in the form of testimony, such as a deposition or preliminary hearing transcript, the party seeking to introduce the allegedly inconsistent statement should direct the court and opposing counsel to the portion of the witness's testimony that the offering party seeks to impeach. See State v. Franks, 685 S.W.2d 845, 850 (Mo. App. E.D. 1984). The "proper procedure" in impeaching a witness by use of a deposition was detailed in Peppers v. St. Louis-San Francisco Railway Co., 295 S.W. 757, 761–62 (Mo. 1927). The impeaching party does not need to offer and read all of the deposition relating to the subject of the impeachment but, rather, may read only chosen excerpts. Oldaker v. Peters, 817 S.W.2d 245, 252 (Mo. banc 1991) (citing State v. Graves, 182 S.W.2d 46 (Mo. 1944)). See §106 of this deskbook, as to the right of the adverse party to introduce the remainder if it is otherwise admissible.

This rule requiring the laying of a foundation is a rule of fairness. It is designed to prevent surprise to the party offering the witness, to present a complete picture of the witness' credibility by allowing him, in fairness, to explain any inconsistency and to avoid false testimony being manufactured by the impeacher.

State v. Ivicsics, 604 S.W.2d 773, 780 (Mo. App. E.D. 1980).

Foundation requirement different if offered as substantive evidence under § 491.074, RSMo

Inconsistent statements of a witness testifying in a criminal case are available as substantive evidence under § 491.074, RSMo 2016, and may be used just as soon as the inconsistency appears from the witness's testimony. Thus, a party does not have to point out to the witness the time, place, and precise circumstances under which the statement was made...