Section 10.9 Prior Inconsistent Statements

• Library: Evidence 2017

E. (§10.9) Prior Inconsistent Statements

The prior inconsistent statements of a witness, whether made in or out of court, are admissible to impeach the witness’s credibility. Litton v. Kornbrust, 85 S.W.3d 110, 114 (Mo. App. W.D. 2002) (citing State v. R__D__G__, 733 S.W.2d 824, 828 (Mo. App. S.D. 1987)); State v. Spinks, 629 S.W.2d 499, 502–03 (Mo. App. E.D. 1981) (“Impeachment occurs when a witness, while testifying, makes a statement inconsistent with a prior extra-judicial statement and the attorney reveals the inconsistency to undermine the witness’ credibility.”). Further, in civil cases, prior inconsistent statements are not only admissible for impeachment purposes, but, under certain circumstances, may also be used as substantive evidence. See Foster v. Catalina Indus., Inc., 55 S.W.3d 385, 393 (Mo. App. S.D. 2001); see also Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 593 (Mo. App. W.D. 1999). Missouri has long permitted cross-examination when the witness’s testimony at trial is inconsistent with a prior statement, but generally, courts require the prior statement to be about a material issue. See Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010) (recognizing a party’s ability to introduce extrinsic evidence to prove a witness’s prior inconsistent statement when the statement concerns a material issue). Missouri courts broadly define materiality to include statements affecting credibility. See Kearbey v. Wichita Se. Kan., 240 S.W.3d 175, 187 (Mo. App. W.D. 2007).

Evidence of the prior inconsistent statement “‘offered other than through the witness himself’” is extrinsic. Litton, 85...