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Foundation Required to Admit Prior Inconsistent Statement

Posted by David Adelstein on August 20, 2016
Trial Perspectives


One of the most effective impeachment vehicles to attack the credibility of a testifying witness is the prior inconsistent statement. A prior inconsistent statement is exactly what it seems – a statement previously made by the witness on a material issue that directly contradicts with what the witness is testifying to at trial.  The point of impeaching the witness with the prior inconsistent statement is to show the witness’ trial testimony is not credible—they are lying.   By attacking the credibility, you leave doubts in the trier of fact’s mind (e.g., jury) that the witness’ trial testimony needs to be discounted because of a material lie (either they were lying at trial or they were lying when they originally made the prior inconsistent statement).

However, the foundation needs to be properly laid in order to impeach the witness with the prior inconsistent statement.  

Section 90.614(2) of Florida’s Evidence Code provides in material part:

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.

If the witness admits making the prior inconsistent statement, then the matter is generally closed since the witness admitted the inconsistency. On the other hand, if the witness does not admit or recall making the prior inconsistent statement, then extrinsic evidence of the prior inconsistent statement is admissible to prove the witness made such statement. See MBL Life Assurance Corp. v. Saurez, 768 So.2d 1129, 1134 (Fla. 3d DCA 2000) (“When a witness states that she does not recall questions asked or answers given at a previous time, the law provides that extrinsic evidence of the prior statement is admissible.”).

For example, say a witness previously testified during a deposition that her company decided not to fulfill certain contractual obligations because it underestimated its bid and contract price and would have lost a tremendous amount of money if it fulfilled its contractual obligations. But, during trial, the same witness testified that her company did not perform under the contract because the other side refused to timely pay a certain amount of money. This is a material contradiction.   During cross-examination, the opposing lawyer is very interested in attacking that witness’ credibility with the earlier statement made during deposition.   How does the opposing lawyer lay a foundation?

First, the opposing lawyer will ask the witness if she remembers being deposed (on “X” date by “Y” person) where she was asked the following question and where she answered “that her company did not perform because it underestimated its bid and would have lost tons of money.” If the witness admits to making the prior inconsistent statement, they have the opportunity to try to explain the inconsistency and the opposing lawyer can cross-examine the witness on the admitted inconsistency. However, if the witness denies making the statement or does not recall, then the foundation was laid to admit the prior inconsistent statement.

If the prior inconsistent statement is not reliable (unlike a statement in a deposition, affidavit, official public document, or other self-authenticating / reliable document) then it may be necessary to call as a witness a person that heard the prior inconsistent statement–depends on how the prior inconsistent statement was made and memorialized.  See, e.g., Pearce v. State, 880 So.2d 561, 568-570 (Fla. 2004) (when witness testified he did not recall making prior inconsistent statement after proper foundation was laid, trial court erred by not allowing counsel to immediately show videotape of witness making prior inconsistent statement); MBL Life Assurance Corp., 768 So.2d 1129 (trial court erred by not allowing witness’ prior inconsistent statement to Coast Guard contained in Coast Guard’s report to be admitted when witness testified she did not recall making prior statement);  Kiwanis Club of Little Havana, Inc. v. Kalafe, 723 So.2d 838 (Fla. 3d DCA 1998) (trial court erred in not allowing counsel to introduce periodical articles to impeach witness’ trial court testimony that contained statements contradictory to witness’ trial court testimony).


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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