Impeaching (Attacking Witness’s Credibility) with a Prior Inconsistent Statement

Posted by David Adelstein on July 05, 2015
Trial Perspectives

 

Impeachment is the art of attacking a testifying witness’s credibility or truthfulness at trial.  One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony. The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as attacking the witness’s credibility!  A prior inconsistent statement made by a testifying witness is a great way to attack that witness’s credibility at trial. See Elmer v. State, 114 So.3d 198, 202 (Fla. 5th DCA 2012). (“It is axiomatic and fundamental to our system of justice that a party may impeach a witness by introducing statements of the witness which are inconsistent with the witness’s present testimony.”).

Under Florida Statute s. 90.608, “Any party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness’s present testimony.”  Thus, you can attack a testifying witness’s testimony with a prior inconsistent statement.

Furthermore, Florida Statute s. 90.614(2) states in material part: “(2) Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.”

“In order to lay the proper predicate for impeachment by prior inconsistent statement, the witness must be advised of the substance of the prior inconsistent statement, the time and place the statement was made, and the person to whom the statement was made.” See Kimble v. State, 537 So.2d 1094, 1096 (Fla. 2d DCA 1989).

If a witness admits that he/she made the prior statement, then counsel may not introduce that prior inconsistent statement.  There is no reason to do so as the witness has acknowledged the prior inconsistent statement and the impeachment point has been made.  

On the other hand, if the witness denies making that statement or does not directly admit making that statement, then counsel may introduce that prior written statement.

The Florida Supreme Court’s opinion in Pearce v. State, 880 So.2d 561, 569-70 (Fla. 2004) has a great discussion regarding impeaching a witness with a prior inconsistent statement:

“[I]ntroduction of a prior statement that is inconsistent with a witness’s present testimony is also one of the main ways to attack the credibility of a witness….The theory of admissibility is not that the prior statement is true and the in-court testimony is false, but that because the witness has not told the truth in one of the statements, the jury should disbelieve both statements. To be inconsistent, a prior statement must either directly contradict or be materially different from the expected testimony at trial. The inconsistency must involve a material, significant fact rather than mere details. ‘Nit-picking’ is not permitted under the guise of prior inconsistent statements. If a witness has made a prior inconsistent statement concerning a collateral matter, cross-examining counsel may question the witness about the statement, but must ‘take the answer’ and cannot present extrinsic evidence to prove the prior inconsistent statement.

Before a witness can be impeached with a prior inconsistent statement, the proper foundation must be laid. Prior to questioning a witness about the contents of a previous inconsistent statement, counsel must call to the witness’s attention the time, place, and person to whom the statement was allegedly made. Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it…. If the witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

Thus, if the witness admits making the prior statement, examining counsel may not offer any evidence to prove the statement was made. Further, even if the witness admits making a prior statement, the witness should be given an opportunity to explain it, show that he or she was mistaken when it was made, or explain that the prior statement is not inconsistent.

Under section 90.614(2), extrinsic evidence is admissible when a witness does not ‘distinctly admit’ making the prior statement. If the witness does not distinctly admit making a prior statement, then when it is counsel’s turn to offer evidence, he or she may introduce extrinsic evidence that the statement was made. This evidence can include a properly authenticated written statement and the testimony of individuals who were present when the statement was made.”

Finally, if a witness does not recall making a prior inconsistent statement, while the statement may be inadmissible hearsay, it can be shown to the witness to refresh that witness’s memory. Thus, if the witness recalls making the prior inconsistent statement after seeing the prior inconsistent statement in order to refresh his/her memory, the witness can testify as to that statement. On the other hand, if the witness still does not recall, then the line of questions to that witness generally ends.

Check out the youtube vides above and below that contain good information and demonstration of impeachment by a prior inconsistent statement.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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