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

Fed.R.Evid. 613. WITNESS’S PRIOR STATEMENT (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2). A witness testifying in court may be impeached by proof that the witness made a statement outside of court contradicting his or her in-court testimony, or failed to speak under circumstances where it would have been natural to relate the matters testified to in court if true. The rationale is a witness who testifies one way at trial while speaking inconsistently prior to trial is blowing hot and cold thereby raising doubts as to the truthfulness of both statements. A prior statement of a witness may be employed for purposes of impeachment only if inconsistent with the witness’ in-court testimony. An inconsistent statement by a witness meeting the definition of hearsay, Fed.R.Evid. 801(a) – (c), is admissible as substantive evidence only if the statement is defined as not hearsay under Fed.R.Evid. 801(d)(1) or (2) and particularly Fed.R.Evid. 801(d)(1)(A), or if the statement meets the requirements of a hearsay exception, Fed.R.Evid. 803, 804, or 807. Otherwise its effect is limited to impairing the credibility of the witness. Fed.R.Evid. 613 applies only with respect to prior inconsistent statements admissible solely to impeach credibility of the witness or as substantive evidence solely by virtue of Fed.R.Evid. 801(d)(1)(A). Prior inconsistent statement impeachment is subject to Fed.R.Evid. 403. The contents of the prior inconsistent statement need not be disclosed to the witness prior to cross-examination concerning its contents, Fed.R.Evid. 613(a). The traditional older common law foundation requirement that the attention of the witness be directed to the statement on cross-examination is relaxed in Fed.R.Evid. 613(b) in favor of simply requiring that the witness be provided an opportunity to explain or deny and the opposite party an opportunity to examine the witness with respect to the statement, with no specification of any particular time or sequence. A prior inconsistent statement should not be confused with an admission of a party opponent, Fed.R.Evid. 801(d)(2), which like statements admitted as a hearsay exception are not subject to the provisions of Fed.R.Evid. 613(b). 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. To understand why the Advisory Committee proposed Fed.R.Evid. 613(b) one must keep in mind that if prior inconsistent statements are admissible only for purposes of impeachment, the foundation requirement fosters the use of such statements to affect credibility while discouraging the trier of fact from giving them substantive consideration. In practice, the foundation requirement served to place a prior statement in juxtaposition to the testimony at trial of the witness sought to be impeached. In addition, by enabling the witness to admit a prior statement as his own, the foundation requirement reduced the likelihood that extrinsic evidence of the prior inconsistent statement would be introduced, evidence that is much harder for the jury not to accept substantively. Under the scheme of the proposed evidence rules, however, all prior inconsistent statements were to be admissible as substantive evidence pursuant to Fed.R.Evid. 801(d)(1)(A). With the substantive admissibility of all such prior statements this objective fostered by the foundation requirement was no longer relevant and a practical consideration became paramount. Trial lawyers for some unknown reason often forget to lay or in some cases never learned how to lay a proper foundation for extrinsic evidence. "When [the foundation] is overlooked by the impeacher, as it often is...." McCormick, Evidence ' 37 at 74 (Cleary ed. 1972). The Advisory Committee politely referred to such forgetfulness or incompetence as the "dangers of oversight." With substantive admissibility, these "oversight[s]" could be legitimized by permitting introduction of prior inconsistent statements at any time so long as the witness was eventually given an opportunity to deny or explain. As enacted by Congress, however, Fed.R.Evid. 801(d)(1)(A) does not permit the substantive admission of all prior inconsistent statements. Thus, the traditional foundation requirements' utility in encouraging the jury to consider a prior inconsistent statement solely as an indication of credibility and not as substantive evidence remains relevant. Since all prior inconsistent statements are not substantively admissible, counsel should not have the unfettered right to introduce extrinsic evidence of such a statement before the witness has an opportunity to admit, deny, or explain the declaration. Initial introduction of extrinsic evidence permits a prior statement to be placed before the trier of fact on multiple occasions and under circumstances encouraging the statement's acceptance as substantive evidence. Accordingly, the court should require under Fed.R.Evid. 403 and Fed.R.Evid. 611(a)(1) that the traditional foundation be laid on cross examination prior to the introduction of extrinsic evidence with respect to prior inconsistent statements admissible solely to impeach unless the interests of justice otherwise require. At last count at least four circuit courts require the laying of the traditional foundation on cross examination citing Fed.R.Evid. 613(b) in spite of its clear contrary command. A vast majority of state jurisdiction require the prior laying of a traditional foundation on cross-examination as well. 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 (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).