Impeachment by a Prior Inconsistent Statement

There are a variety of methods to call into question the credibility of a witness, and the MBE will test most of them.  One to understand especially well since it shows up more than most or all of the others is impeachment by a prior inconsistent statement.

There are various avenues one might take to impeach a witness by claiming that the witness is talking "hot and cold." In other words, the witness's credibility is called into question by demonstrating that the witness has previously said something that contradicts something that the witness says while testifying. A party may show both by cross examination or by extrinsic evidence that the witness has on another occasion made statements inconsistent with the present testimony. To prove the statement by extrinsic evidence requires that a proper foundation be laid. In addition, the statement must be relevant to some issue in the case; otherwise, it's in danger of being deemed collateral and irrelevant.

Although extrinsic evidence is allowable, there are limitations. Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is at some point given an opportunity to explain or deny the statement and the adverse party is at some point given an opportunity to examine the witness about the statement. This limitation, however, will not apply if the prior inconsistent statement is an opposing party's statement (an admission by a party opponent) or if the inconsistent statement is made by a hearsay declarant. In addition, more generally, the limitation will not apply when justice so requires. 

Perhaps the most common area tested as to prior inconsistent statements deals with the purpose for which the statement is offered. To offer the statement merely to call into question the credibility of a witness is rarely problematic, subject to the limitations stated above. But rather than offering the prior statement merely to call into question the credibility of a witness, a party might want to offer the prior statement to prove that the prior statement is in fact true. And that's a potential hearsay problem.

Prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the prior inconsistent statement was made under oath at a prior proceeding, it is admissible non-hearsay and may then be admitted both for purposes of impeachment and as substantive evidence (to prove that the prior inconsistent statement is in fact true).

But don't stop there. You might come across questions in which a prior statement is offered but that prior statement was not made under oath at a prior proceeding. The trap there is to assume that therefore the statement may only be offered for purposes of impeachment, since the non-hearsay exemption stated above does not apply. But knowing that the prior statement was not made under oath only tells you that the statement is hearsay. As is true with all hearsay problems, the next step should be to determine whether an exception to the hearsay rule applies because if an exception applies, the statement may be admitted not only to impeach but also for substantive purposes.