Rule 613 Prior Statements of Witnesses

• Jurisdiction: Arizona

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Comment

Paragraph (a) eliminates the common-law requirement that a cross-examiner must first show a written statement to the witness prior to questioning the witness about it.[1] The provision of disclosure to opposing counsel protects against unwarranted insinuations that a previous statement was made when in fact it was not.

Rules 15.1(a), 15.1(f), and 15.2(e), Ariz. R. Crim. P., provide for disclosure of the names of all witnesses, all statements by these witnesses, and all papers, documents, and objects the parties intend to use at trial, which will require the disclosure of all prior inconsistent statements prior to trial.[2] The civil rules have no similar provision for the automatic disclosure of such statements; instead, Rule 26(b)(3), Ariz. R. Civ. P., allows a party to obtain discovery of all the party's statements that the other party has, and allows a witness, or a party on behalf of the witness, to obtain discovery of all the witness's statements that the other party has.[3] Because Rule 613(a) requires only that a party disclose the prior inconsistent statement at the time the party is impeaching the witness during trial, a party wishing to obtain these types of statements prior to trial should either make a request for disclosure under Rule 26(b)(3) or serve interrogatories drafted to ensure discovery of such statements.

Paragraph (b), which allows a party to introduce extrinsic evidence of a prior inconsistent statement of a witness if (1) the witness is given the opportunity to explain or deny the statement, and (2) the other party is given the opportunity to examine the witness about the statements, does not apply to statements of a party-opponent.[4] The trial court may dispense with these requirements for a witness if the interests of justice so require. If the witness admits making the prior inconsistent statement, the trial court has discretion in allowing admission of the extrinsic proof.[5] Ordinarily, judicial economy will dictate that the trial court will exclude such extrinsic evidence. In situations when the statement has substantive use or when the jurors must decide which of two inconsistent statements is true, it may be important for the jurors to view the extrinsic evidence, in which case the trial court should admit it.

A party may introduce the prior inconsistent statement first, and then allow the witness the opportunity to explain later.[6] Further, the party that introduces the statement does not have to be the one to provide the witness with the opportunity to explain as long as the witness eventually receives that opportunity.[7] If the party does not intend to provide the witness with the opportunity to explain, it should so advise the court so that the other party may...