Friday, November 23, 2012

Prior Consistent Statements vs. Prior Inconsistent Statements

A distinction in Evidence that is often overlooked, but worth focusing on, is the distinction between prior inconsistent statements, and prior consistent statements. Prior inconsistent statements are often used for the purposes of impeachment. Extrinsic evidence can be introduced to prove prior inconsistent statements only if the witness is, at some point, given an opportunity to explain or deny the statement (Note that on the MBE, it is not necessary that the witness has the opportunity to explain the statement prior to extrinsic evidence being admitted, provided the witness has some opportunity to explain the prior inconsistent statement.) If the prior inconsistent statement was made under oath at a prior proceeding (for example, at a deposition,) it is admissible not only for impeachment purposes, but also for substantive evidence of the facts stated (in other words, it is considered nonhearsay).

And that is where the distinction lies. Oftentimes, on redirect examination of a witness, an attorney will want to offer a prior consistent statement made by a witness, in order to rebut a charge that the witness is lying or exaggerating because of some motive to lie or exaggerate. If the attorney can offer evidence that his witness has said previously (before the witness had any motive to lie) whatever it is he has said during the trial, then it is less likely that what he has said during the trial is a lie. But unlike with prior inconsistent statements, there is no requirement that the prior consistent statement be made under oath for that statement to be admitted as substantive evidence. It comes in as substantive evidence (ie, for the truth of the matter asserted) provided it is offered to rebut a charge that the witness is lying or exaggerating. A prior consistent statement will come in as nonhearsay even if that prior statement was not made under oath.

It's a straight-forward distinction, but one that is easy to overlook.

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