proper impeachment v. improper impeachment Forum

[leeyatong]

There are 2 similar Qs but different answer choices. Could anyone help me? Thanks.

Q1
The owner of a jewelry store bought a civil action against a former clerk for the value of various pieces of jewelry missing from the store. the D has been fired after another employee had reported that the D was stealing Jewelry. at the trial, the P calls the employee as a witness, and the witness testifies that the does not remember either having seen the D take anything from the store or having told the P that she had done so. the P then takes the witness stand and proposes to testify to what the witness had told hime about seeing the D stealing pieces of jewelry from the store.

The correct Answer is D. no, as inadmissible hearsay if offered to prove theft by the D.
As regard to the B. yes, as proper impeachment of the witness's testimony. the explanation of not choosing the answer of B is because the witness only said lack of memory of what happened, so the lack of memory is not inconsistent statement and no impeachment.

Q2
D is on trial for manslaughter after he hit a victim in a bar. causing the victim to fall and hit his head on the marble bar top. the defendant claims that he hit the victim in self-defense after the victim lunged at him with a knife. during the prosecution's case, a witness testifies that she heard the victim's friend shout a shout at the D, you just killed a helpless man, a defense witness is called to testify he was there and does not remember hearing the victim's friend say anything.

The correct answer is B, yes, it is proper impeachment of the prosecutions' witness. The explanation here is a witness may be impeached by either cross-examination or extrinsic evidence, such as by putting other witnesses on the stand who contradict the witness's testimony. so there is a contradiction and proper impeachment.

I feel confused a lot. the two Qs are similar right, two testimonies and one is just lacking the memory of what happened other than inconsistent statement. but one is improper impeachment, other one is proper impeachment by valid contradiction. why?

[nixy]

The first one, the person who says they don't remember is the declarant, saying that they don't remember saying something *themselves*. Lack of memory isn't a prior inconsistent statement.

The second one, the person who says they don't remember is talking about the declarant, saying they don't remember hearing the *declarant* saying something that the declarant claims they did say. The declarant remembers what they said. ("Don't remember" is just kind of a red herring here - really the second witness is just saying no one said what the first witness claims they said, it's not really about lack of memory.)

[leeyatong]

Thanks for your clear answer, so

1. as to the first Q, the impeachment of prior inconsistent statement fails

2. as to the 2nd Q, the impeachment is contradiction

Am I right? Thanks so much