Also known as: prior inconsistent statement · impeachment by prior inconsistent statement
Written by attorneys · grounded in primary & secondary sources — see below
Statements made by a witness prior to trial that differ from the witness's in-court testimony. Such statements may be used to attack the witness's credibility. Extrinsic proof of the statements requires that the witness first receive an opportunity to explain or deny them.
Preston Pratt sues Prism Analytics for breach of a software license. During settlement talks Prism's counsel offers a $400,000 payment to resolve the claim. At trial Pratt seeks to introduce the offer to impeach Prism's witness who now denies any liability. The court excludes the evidence because statements made during compromise negotiations may not be used to impeach by prior inconsistent statement.
Pamela Phillips testifies that she never discussed a contract modification with Patrick Phan. Defense counsel possesses an email from Phillips to Phan that contradicts this testimony. The court refuses to admit the email until Phillips is first given an opportunity on cross-examination to explain or deny the earlier statement.
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Philip Powell testifies at trial that he was at home on the night in question. The prosecution confronts him with a statement he gave to police weeks earlier placing him at the scene. The inconsistency is offered solely to attack Powell's credibility on the stand.
Phoebe Park testifies that she never saw the defendant near the warehouse. The government introduces her earlier grand-jury testimony describing the defendant carrying boxes from the building. The prior testimony serves only to impeach Park's trial account.
Priya Prasad testifies at a suppression hearing that officers never read her rights. At trial she claims the officers gave full warnings. The prosecution uses the earlier hearing testimony to impeach her changed account on the stand.
Pulse Media's employee testifies at trial that he immediately told officers he was innocent. The prosecution attempts to use his post-arrest silence after receiving Miranda warnings to impeach that testimony. The court bars the use of the silence as a prior inconsistent statement.
Extrinsic evidence may be introduced only after the witness has been given an opportunity to explain or deny the statement and an adverse party has had a chance to examine the witness about it. The rule does not apply to an opposing party's statement under Rule 801(d)(2).
No. Evidence of conduct or statements made during compromise negotiations is not admissible to impeach by a prior inconsistent statement or a contradiction. The prohibition applies on behalf of any party.
No. A party examining a witness about a prior statement need not show the statement or disclose its contents to the witness. The party must, however, disclose the statement to an adverse party's attorney upon request.
Yes. Any party, including the party that called the witness, may attack the witness's credibility with a prior inconsistent statement. The older common-law voucher rule that barred such impeachment has been abandoned.
…Green's precedential significance. We accept neither. In Part II of Green , the Court held that use of a trial witness' prior inconsistent statements as substantive evidence did not, as a general rule, violate the Confrontation Clause. In Part III, the Court went further and held: "Porter's preliminary hearing testimony was admissible .…