Chapter 8 - § 8.5 • PRIOR INCONSISTENT STATEMENTS

• Jurisdiction: Colorado

§ 8.5 • PRIOR INCONSISTENT STATEMENTS

§ 8.5.1—Introduction

Impeachment with prior inconsistent statements can be very effective because it allows the attorney to discredit a witness with the witness's own words. In criminal cases, those statements can often be admitted as substantive evidence to the jury in addition to having impeachment value. C.R.S. § 16-10-201.

Prior inconsistent statements of a witness are not hearsay if the declarant is subject to cross-examination at trial. CRE 801(d)(1). There is no longer any requirement that the prior inconsistent statement be made under oath. Id.

Traditional impeachment with a prior inconsistent statement is governed by CRE 613. This rule is a bit lengthy and has several contingencies, making it easier to do incorrectly than correctly, but at its heart, the rule is a foundational one.

Before impeaching with a prior inconsistent statement, attorneys should be sure that, as a threshold matter, the prior statement is actually inconsistent. Montoya v. People, 740 P.2d 992 (Colo. 1987). A prior statement can be inconsistent in two ways: it can contradict a witness's statement made on the stand, or, the prior statement can be inconsistent by omission. People v. Davis, 312 P.3d 193, 199 (Colo. App. 2010) ("the omission of significant details is in the nature of a prior inconsistent statement"); People v. Quintana, 655 P.2d 605 (Colo. 1983) (testifying defendant was impeached with prior statement to law enforcement that lacked significant details from his testimony).

To start an impeachment by prior inconsistent statement under Rule 613, the examiner must first "call the attention of the witness to the particular time and occasion when, the place where, and the person to whom he made the statement." CRE 613.

While laying this foundation, attorneys can take advantage of a unique opportunity to read an out-of-court statement directly to the jury because the "exact language of the prior statement may be given." Id. Using the exact language is not a foundational requirement, but it does give the examiner some leeway to emphasize favorable evidence under the guise of laying a foundation.

Once the witness has been made aware of the particular prior inconsistent statement, the witness has three options: deny it, fail to recall the prior statement, or admit it.

If the witness admits to making the statement, the impeachment is over and no further evidentiary avenues are available to the examiner under Rule 613. Note that this...