Prior Statements of Witnesses — Rule 613

• Jurisdiction: Colorado

Prior Statements of Witnesses — Rule 613

SUMMARY OF RULE 613

• The witness may not be impeached by showing a prior inconsistent statement unless a proper foundation is laid.
• You must call the attention of the witness to a particular time, place, circumstance, and person to whom the statement was made.
• If the witness denies or does not recall making the prior statement, extrinsic evidence proving the statement, such as a deposition, is admissible.
• If the witness admits the statement, additional extrinsic evidence is not admissible.

LEGAL AUTHORITIES

• The Federal Rule does not require the examiner to disclose the particulars of when, where, and to whom the statement was made. On request, however, the statement or its contents shall be shown or disclosed to opposing counsel. The Federal Rule also requires that the witness be afforded an opportunity to explain or deny the inconsistent statement.

• Generally, pursuant to C.R.C.P. 32(a), a deposition may not be used as substantive evidence against a party who is not present or represented at the deposition, or who did not have reasonable notice. However, a deposition of a witness may be used as a prior inconsistent statement for the limited purpose of impeaching the witness, even if the opposing party was not present or represented at the deposition. Appel v. Sentry Life Ins. Co., 739 P.2d 1380 (Colo. 1987).

• If cross-examining counsel reads the prior inconsistent statement from a deposition, it is not necessary for the deposition to be admitted in evidence. The fact that a deposition has not been corrected and signed by witness does not preclude its use. Transamerica Ins. Co. v. Pueblo Gas & Fuel Co., 519 P.2d 1201 (Colo. App. 1973).

• The stipulated value of land was not admissible as a prior inconsistent statement because there was a two-year time difference and the stipulation was a negotiated settlement compromise. City of Gunnison v. McCabe Hereford Ranch, Inc., 702 P.2d 768 (Colo. App. 1985).

Sample Foundation to Impeach with Prior Inconsistent Statement

• Identify the prior statement. For example, "You said/testified on direct . . . ," or "In response to your counsel, you stated . . . ."
• Bring attention to the inconsistent statement. "On (certain date) you discussed the incident with the child family investigator
• "You told the child family investigator . . . "
• If the statement is denied, refer to the document or report with the inconsistent

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