Prior inconsisten statement e Forum

[Itwasascam]

Does a prior inconsistent statement had to have been made under oath for it to come in to impeach or only when coming in for truth of the matter asserted

[estefanchanning]

2 ways to bring in prior inconsistent statement (PIS) for impeachment

(1) Impeach via 801(d)(1)(A). Under this, PIS must've been made under oath and declarant-witness must testify at trial and be subject to cross. If admitted this way, PIS may be used both substantively and for impeachment.

(2) Impeach via character evidence. Here, the statement offered needn't be under oath. All you have to do is give the declarant-witness an opportunity to explain/deny the statement and opposing party must be given a chance to question the witness. Once that happens, you can introduce the PIS for impeachment purposes only. Meaning: the jury may only draw the inference that "people who lied before are likely lying now." Hence, you impeach W's character. Jury cannot draw the inference of "X lied when he said the suspect was wearing red boots; therefore, suspect must've been wearing the blue boots." That would be an impermissible substantive use under impeachment via character evidence.

[Itwasascam]

2 ways to bring in prior inconsistent statement (PIS) for impeachment

(1) Impeach via 801(d)(1)(A). Under this, PIS must've been made under oath and declarant-witness must testify at trial and be subject to cross. If admitted this way, PIS may be used both substantively and for impeachment.

(2) Impeach via character evidence. Here, the statement offered needn't be under oath. All you have to do is give the declarant-witness an opportunity to explain/deny the statement and opposing party must be given a chance to question the witness. Once that happens, you can introduce the PIS for impeachment purposes only. Meaning: the jury may only draw the inference that "people who lied before are likely lying now." Hence, you impeach W's character. Jury cannot draw the inference of "X lied when he said the suspect was wearing red boots; therefore, suspect must've been wearing the blue boots." That would be an impermissible substantive use under impeachment via character evidence.

Great explanation, thank you very much!

[Findedeux]

Just to clarify the "extrinsic" aspect of the rule does not refer to the confrontation of the witness it refers to bringing outside evidence into trial for impeachment to prove the inconsistency when the witness makes a denial or denial equivalent. E.g., calling an officer to testify that he heard witness make the statement or introducing an authenticated certified copy of deposition.

[SilvermanBarPrep]

Be careful about one thing: you could get a question in which the prior inconsistent statement is not made under oath so that you'll think it should only come in for impeachment. But by not being made under oath, that only means that the statement does not fit within the hearsay exemption for prior inconsistent statements made under oath. You still need to ensure that there are no hearsay exceptions that would allow the statement to come in for substantive purposes (to prove the truth of the matter asserted).

Sean (Silverman Bar Exam Tutoring)