Impeachment by Prior Inconsistent Statement

Trial lawyers love a good gotcha moment and this method of impeachment–by prior inconsistent statement–presents lots of opportunities for that. Proving that a witness previously made statements inconsistent with his or her trial testimony impeaches the witness by casting doubt on the witness’s credibility. Note that use of a prior inconsistent statement for impeachment purposes is different from use of the statement for substantive purposes; the latter invariably involves application of the hearsay rules, whereas the former doesn’t. State v. Roper, 328 N.C. 337, 366 (1991). Even though this is one of the most common techniques for impeaching a witness, not everyone is fluent in the basic rules. With this post I hope to change that. Here’s what you need to know:

Form of the Prior Statement. No particular formality is required for the prior statement. State v. Ward, 338 N.C. 64, 97 (1994) (may be made in or out of court; may be oral or in writing); In re K.W., 192 N.C. App. 646, 650-51 (2008) (statement on MySpace page).

Must Be the Witness’s Statement. The prior inconsistent statement must have been made by the witness; a witness may not be impeached with a prior inconsistent statement made by someone else. Ward, 338 N.C. at 97-98 (fact that the witness made the statement must be proved by direct evidence; proper to exclude testimony from a defense witness who heard of the statement second hand); State v. Lynn, 157 N.C. App. 217, 226-27 (2003) (following Ward). Note, however, that when the witness testifies that material fact A occurred, a party may introduce testimony from another witness that material fact A did not occur; this is called impeachment by specific contradiction, a separate technique.

Statement Must Be Inconsistent. In order for a prior statement to be used for impeachment, it must in fact be inconsistent with the witness’s present testimony. McCormick at 210. As a general rule, a prior statement is inconsistent if there is any “material variance” between the trial testimony and the content of the statement. 1 Kenneth S. Broun et al., McCormick on Evidence 210 (7th ed. 2013). This issue may present a preliminary question of admissibility to be resolved by the trial judge under N.C. R. Evid. 104.

Cross-Examination. A party may cross-examine a witness about a prior inconsistent statement, even if it pertains to a collateral matter. The rationale for this rule is that by testifying the witness has put his or her credibility at issue. When examining a witness about his or her prior statement, the statement need not be shown to the witness, nor must its contents be disclosed to the witness. N.C. R. Evid. 613. However, on request the statement must be shown or disclosed to opposing counsel. Id.

Extrinsic Evidence. Extrinsic evidence of a prior inconsistent statement may be used to impeach when the issue is material; however, extrinsic evidence may not be used to impeach concerning collateral matters. State v. Hunt, 324 N.C. 343, 348 (1989); McCormick at 216. Here’s a simple rule of thumb for distinguishing collateral from material matters: A matter is material if it is independently relevant to the case, apart from its impeachment value. Consider this example. In a larceny case, a victim testifies that she is 32 years old. The defendant proffers the victim’s older sister who will say that the victim is 33. Since the victim’s age is irrelevant to any issue in the case, the defendant may not use extrinsic evidence to impeach the victim about her age. Suppose now that the charge is statutory rape and the victim testifies that she is 12 years old. The defendant proffers the victim’s older sister who will say that the victim is 15 years old. Now the defendant’s impeachment with extrinsic evidence is proper because the victim’s age is an element of the offense; the sister’s testimony is independently relevant as it is substantive evidence that the victim is not a person under 13 years of age.

Bias. Evidence that the witness is biased always is relevant to assessing a witness’s credibility. 98 C.J.S. Witnesses § 707. Thus, when the prior inconsistent statement reveals bias, extrinsic evidence may be used. Roger Park & Tom Lininger, The New Wigmore: A Treatise on Evidence: Impeachment and Rehabilitation § 5.9 (2012); State v. Whitley, 311 N.C. 656, 663 (1984). However, the prior statement first must be called to the attention of the witness. Whitley, 311 N.C. at 663.

Witness’s Denial of Making the Statement. When a witness denies making a prior statement, a party may not impeach that denial with extrinsic evidence of the substance of the prior inconsistent statement. State v. Hunt, 324 N.C. 343, 348-49 (1989) (error to allow witness to testify to the substance of first witness’s statement which she had denied making); State v. Williams, 322 N.C. 452, 455-56 (1988) (reversible error; after defense witness denied making prior inconsistent statement, the State presented two witnesses who testified to the substance of the statement). Note that when the witness denies having made the statement but goes on to testify inconsistently with it, extrinsic evidence of the substance of the statement may be used to impeach if the matter is material, as discussed above. State v. Gabriel, 207 N.C. App. 440, 447 (2010).

No Need to Bring Statement to the Attention of the Witness. As a general rule, when a witness’s prior statement relates to material matters and may be proved with extrinsic evidence, there is no requirement that the impeaching party call inconsistencies to the attention of the witness before introducing extrinsic evidence. State v. Whitley, 311 N.C. 656, 663 (1984); Brandis & Broun § 161. An exception however exists with regard to prior inconsistent statements showing bias, as noted above.

There you have it—the basic rules. Good luck with your gotcha moment.

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