Prior Inconsistent Statement Impeachment, Fed.R.Evid. 613(B): Current Practice and Proposed Changed Foundation Requirement

23 Pages Posted: 13 Sep 2018

See all articles by Michael H. Graham

Michael H. Graham

University of Miami - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: April 1, 2017

Abstract

Requiring a Foundation on Cross Examination.

As the Advisory Committee's Note to Fed.R.Evid. 613(b) indicates, "[t]he traditional insistence that the attention of the witness be directed to the statement on cross examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence." The Advisory Committee's Note suggests that Fed.R.Evid. 613(b) facilitates the questioning of collusive witnesses by permitting several such witnesses to be examined before disclosure of a joint prior inconsistent statement. That rather infrequent benefit hardly explains Fed.R.Evid. 613(b) dispensing with the requirement that a foundation be laid on cross examination. The rationale for Fed.R.Evid. 613(b) in fact derives from a combination of two factors: (1) that Fed.R.Evid. 801(d)(1)(A) as proposed by the Advisory Committee and the Supreme Court gave substantive effect to all prior inconsistent statements, and (2) perceived lawyer incompetence.

In practice, the traditional foundation is generally laid by counsel on cross examination regardless of the text of current Fed.R.Evid. 613(b). Juxtaposition is the most effective form of impeachment. Counsel desiring primarily to impeach and not to highlight the prior statement to encourage substantive use by the trier of fact opts in favor of confronting the witness with the prior inconsistent statement on cross examination. Custom and lack of appreciation of the change brought about by Fed.R.Evid. 613(b) undoubtedly also play their part in maintaining the status quo.

Proposed Fed.R.Evid. 613(b) Witness’s Prior Statements

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(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is first afforded an opportunity to explain or deny the same and the opposing party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Fed.R.Evid. 801(d)(2).

Suggested Citation

Graham, Michael H., Prior Inconsistent Statement Impeachment, Fed.R.Evid. 613(B): Current Practice and Proposed Changed Foundation Requirement (April 1, 2017). Vol. 54 Crim.L.Bull. 676 (2018), University of Miami Legal Studies Research Paper No. 18-31, Available at SSRN: https://ssrn.com/abstract=2958385

Michael H. Graham (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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