Wednesday, August 22, 2012

How It's Tested: Prior Inconsistent Statements.

Assume a situation in which the attorney for the plaintiff calls a witness to the stand expecting the witness to say X, but the witness says Y. The plaintiff's attorney wants to offer evidence that the witness had previously (outside of court) said X even though now the witness is saying Y. The MBE will test two different issues in this respect. The first will be whether this evidence that the witness had previously said X is admissible, and the second will be, if admissible, for what purposes is that evidence admissible.

You may be, initially, thinking that we have a hearsay problem.  The attorney is attempting to bring in a statement made by the witness, made outside of court.  Remember, however, that hearsay only applies if the the statement is being brought in to prove the truth of the matter asserted, and bringing in a statement for impeachment purposes is never for the truth of the matter asserted.

So, the statement (X) made by the witness would be admissible to impeach the witness based on the fact that the witness has made a prior inconsistent statement. A further question is whether the statement is also admissible for substantive purposes.

That question requires a bit more analysis.  As stated earlier, if the statement is brought in for the truth of the matter asserted (essentially being brought in for substantive purposes), rather than for impeachment, then we have an issue of hearsay.  Prior inconsistent statements are only admissible for substantive purposes (in other words, they are not hearsay) if the prior inconsistent statement was given under oath at a prior proceeding.  Here, nothing in the facts indicates that the prior statement was made under oath at a prior proceeding, so, although the statement will be admissible to impeach the witness, it will not be admissible as evidence that X is, in fact, true.

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