Section 7.62 Nonparty as the Witness

• Library: Sources of Proof (2014 Ed.)

b. (§7.62) Nonparty as the Witness

Prior inconsistent statements by a witness, whether made in or out of court, are admissible for purposes of impeachment. State v. R__D__G__, 733 S.W.2d 824, 828 (Mo. App. S.D. 1987). For a statement made by a nonparty witness to be admissible, however, several requirements must be met.

First, the witness’s trial testimony must actually be inconsistent with a prior statement made by the witness. See State v. Franks, 685 S.W.2d 845, 850 (Mo. App. E.D. 1984).

Second, the inconsistency cannot concern a collateral matter. If it does, the questioner is bound by the witness’s answer, and extrinsic proof of the inconsistent statement is inadmissible. See State v. Poe, 708 S.W.2d 723, 730–31 (Mo. App. S.D. 1986).

Third, a proper foundation must be laid for introducing the statement into evidence.

In criminal cases, the foundation for impeachment of a witness by a prior inconsistent statement is an inquiry of the witness as to whether:

· the witness made the statement; and

· the impeaching statement is true.

Failure to establish either part of that foundation can preclude impeachment. See State v. Wolfe, 13 S.W.3d 248 (Mo. banc 2000) (the foundation for impeachment was lacking because counsel asked the witness if she made the impeaching statement but failed to ask if it was true).

In a civil case, a proper foundation requires that the witness be given a chance to:

· refresh the witness’s recollection of the prior statement; and

· admit, deny, or explain it.

Therefore, it is necessary to:

· quote the prior statement;

· point out the precise circumstances under which it was made; and

· ask the witness whether the witness made the statement.

Impeachment is not proper unless that foundation is laid and the witness...