Also known as: declarant-witness prior statement · declarant witness's prior statement · declarant-witness's prior statement · prior statement of declarant-witness · prior inconsistent statement · hearsay exception for testifying declarant
Written by attorneys · grounded in primary & secondary sources — see below
A category of out-of-court statements that qualify as non-hearsay when the declarant testifies at trial and is subject to cross-examination about the statement. The statement qualifies if it is inconsistent with the declarant's testimony and was made under penalty of perjury at a prior proceeding or deposition, if it is consistent with the testimony and offered to rebut a charge of recent fabrication or improper motive, or if it identifies a person.
Inmate Marcus Reed sued the Department of Corrections for excessive force. Lieutenant Carl Dawson testified at trial that he never saw Reed restrained on the floor. Reed's counsel played a portion of Dawson's earlier deposition in which Dawson stated he watched Reed held face-down for several minutes. The court allowed the excerpt because Dawson was testifying and subject to cross-examination about his prior statement.
Harbor Storage LLC sued its insurer over a warehouse fire. Owner Ortiz testified at trial about when he first discovered faulty wiring. The insurer sought to play excerpts from Ortiz's earlier deposition showing a different account of the discovery date. The court permitted the excerpts after Ortiz was given an opportunity to explain or deny the prior statements.
Select any source to read its text and confirm it supports the definition.
Resort guest Maria sued Seaside Resort after slipping on a wet floor. At her deposition Maria stated she clearly saw warning cones before falling. At trial she testified she never saw any cones. The resort offered the deposit excerpts after Maria took the stand and was subject to cross-examination about the prior statements.
Dana was indicted for diverting grant money and met with appointed counsel. A regulator later questioned her alone and she made statements admitting personal use of funds. At trial Dana testified every expenditure was for program needs. The prosecutor offered her earlier statements solely to impeach after she took the stand.
A defendant testified at trial that he was not present at the crime scene. The prosecution sought to introduce his earlier statement obtained in violation of the Fourth Amendment to contradict that testimony. The court considered whether the prior statement could be used for impeachment after the defendant testified and faced cross-examination.
A witness testified at trial to one version of events. The opposing party sought to introduce a prior inconsistent statement the witness had made in a signed writing. The court required that the witness first be given an opportunity to explain or deny the statement before the extrinsic evidence was admitted.
The statement is not hearsay if the declarant testifies and is subject to cross-examination about it and the statement meets one of the three listed conditions in Rule 801(d)(1).
Supporting sources
Yes. Any party may use a deposition to contradict or impeach the deponent's trial testimony without any requirement that the witness be unavailable.
Supporting sources
Yes. Extrinsic evidence of a prior inconsistent statement is not admissible until the witness has an opportunity to explain or deny the statement and an adverse party has an opportunity to examine the witness about it.
Supporting sources
…as well. He objects to the introduction of the testimony of his Pretrial Services Officer concerning a defense witness’s alleged prior inconsistent statement on the ground that pretrial services information is rendered confidential by 18 U.S.C. § 3153(c)(1) (1982). Stevens also protests the extent to which the district court, applying our…