Section 10.4 Prior Statements of Witnesses

• Library: Civil Trial Practice 2015 Supp

1. (§10.4) Prior Statements of Witnesses

One of the most effective means of impeaching the witness’s testimony is to show that the witness made a prior statement that is inconsistent with his or her testimony at trial. Showing that a witness has made an inconsistent statement impeaches the witness’s memory or sincerity, or both, and thus raises doubts as to the truthfulness of both statements. Great latitude should be allowed on cross-examination of a witness who contradicts his or her previous statements on a material issue. Dempsey v. Horton, 84 S.W.2d 621 (Mo. 1935).

Generally, any prior statement of a witness, if inconsistent with his or her testimony at trial, should be admitted to discredit or impeach the witness. The form of the inconsistent statement is not important; the witness may be impeached, for example, with statements made:

· in or out of court, Neavill v. Klemp, 427 S.W.2d 446 (Mo. 1968);

· in depositions, see, e.g., Bartleman v. Humphrey, 441 S.W.2d 335, 350 (Mo. 1969) (original and corrected answers in depositions may be used to impeach);

· in interrogatory responses (even if not signed by the party), see, e.g., Drury v. Mo. Pac. R.R. Co., 905 S.W.2d 138, 149 (Mo. App. E.D. 1995);

· in prior trial or hearing testimony;

· in pleadings (whether abandoned or not), see, e.g., Jimenez v. Broadway Motors, Inc., 445 S.W.2d 315 (Mo. 1969); Lewis v. Wahl, 842 S.W.2d 82, 86 (Mo. banc 1992);

· in investigative or police reports, see, e.g., Nash v. Sauerberger, 629 S.W.2d 491, 492–93 (Mo. App. E.D. 1981);

· in statements to insurance adjusters, see, e.g., Herndon v. Albert, 713 S.W.2d 46, 47–48 (Mo. App. E.D. 1986); or

· in tape recordings, see, e.g., Eissler v. Londoff, 677 S.W.2d 358, 361 (Mo. App. E.D. 1984).

To be admissible for impeachment, however, the prior statement must be inconsistent with the whole effect and impression of the witness’s testimony. “Isolated words or phrases contained in the testimony or an omission of detail supplied at trial will not suffice as a basis for the necessary contradiction.” State v. Nimrod, 484 S.W.2d 475, 478 (Mo. 1972); State v. Bowen, 153 S.W. 1033, 1038 (Mo. 1913) (“statements . . . must be such as either in their substance or general drift contradict”). Moreover, there must be a “real inconsistency” between the witness’s trial testimony and the prior statement such that the two assertions cannot at the same time be true. State v. Powell, 684 S.W.2d 514, 519 (Mo. App. E.D. 1984) (quoting 3A John H. Wigmore, Evidence § 1040 (Chadbourn rev. 1970)). Thus...