Section 16.11 Procedure

• Library: Evidence 2017

2. (§16.11) Procedure

There is a certain ritual to offering the prior inconsistent statement to impeach a witness. Before the ritual is practiced at the trial court, the attorney must have a good-faith basis for the questions, as illustrated in State v. White, 230 S.W.3d 375, 380 (Mo. App. S.D. 2007), and the inconsistency must be “material,” as demonstrated in Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010). If the statement is not material, the statement is extrinsic evidence and not allowed. Mansfield v. Horner, 443 S.W.3d 627, 654–55 (Mo. App. W.D. 2014).

To establish a proper foundation, counsel must first quote the statement and explain the precise circumstances under which it was given, including to whom the statement was made and the time and place of the statement. See Aliff v. Cody, 26 S.W.3d 309, 317–18 (Mo. App. W.D. 2000) (distinguishing between prior oral statements and prior written statements); Lindsay v. Mazzio’s Corp., 136 S.W.3d 915 (Mo. App. S.D. 2004). If the statement was given in a deposition, the usual practice is to:

· ask the witness if the witness recalls giving a deposition on a certain date;

· show the transcript to the witness if the witness asks to see it;

· read the question and answer; and

· ask if the witness made the quoted statement.

See State v. Douglas, 132 S.W.3d 251 (Mo. App. S.D. 2004) (paraphrasing the prior statement is not proper because counsel must ask the witness directly and expressly about the prior statement). Otherwise, there is no foundation for admission of the statement because the witness does not have the opportunity to refresh their recollection and to admit, deny, or explain the statement. State v. Norville, 23 S.W.3d 673, 680 (Mo. App. S.D. 2000). As stated by Judge Barbara Wallace at the 2011 Fall Judicial College for trial judges in the section on Civil Evidence at page 7 of the course materials: for documents the foundation is authenticity and relevancy; and for prior inconsistent statements, the foundation is commit (material difference from in court testimony), verify (circumstances of the statement), and confront (admit, deny or explain).

The foundation for admission of the prior inconsistent statement in criminal cases is different because of § 491.074, RSMo 2016. In State v. Reed, 282 S.W.3d 835, 837–38 (Mo. banc 2009), the Supreme Court of Missouri reversed the conviction because the trial court improperly admitted the out-of-court statements of the officer about prior...