Presentation of evidence - Inconsistent statements and condu...

Learning Outcomes

This article explains how inconsistent statements and conduct operate in the presentation of evidence on the MBE, including:

• Identifying when a witness may be impeached with prior inconsistent statements, what level of inconsistency is required, and how to sequence questions under FRE 613.
• Distinguishing when a prior inconsistent statement is admissible only for impeachment from when it is admissible substantively under FRE 801(d)(1)(A) or other doctrines, and recognizing typical bar-exam fact patterns.
• Using inconsistent conduct and specific acts both to contradict a witness on non‑collateral issues and, on cross-examination, to suggest an untruthful character under FRE 608(b), while respecting the no‑extrinsic‑evidence rule.
• Applying the collateral versus non‑collateral distinction to determine when extrinsic evidence of inconsistency is allowed and when the examiner must “take the answer.”
• Determining when and how a party may rehabilitate a witness through explanation, prior consistent statements, or character evidence for truthfulness, and understanding when those statements are also substantive evidence.
• Evaluating whether impeachment and rehabilitation techniques may be used with hearsay declarants as well as in‑court witnesses, and how these interactions affect hearsay analysis.
• Spotting common MBE traps involving limiting instructions, improper bolstering, misuse of inconsistent statements for their truth, and overuse of extrinsic evidence on collateral matters.

MBE Syllabus

For the MBE, you are required to understand inconsistent statements and conduct within the law of evidence, with a focus on the following syllabus points:

• Impeachment of witnesses by prior inconsistent statements.
• Use of inconsistent statements and conduct for contradiction versus for character for truthfulness.
• Substantive use of prior inconsistent statements under the hearsay rules.
• Limits on extrinsic evidence, especially for collateral matters and specific acts.
• Rehabilitation of witnesses, including prior consistent statements and character for truthfulness.
• Application of these doctrines to hearsay declarants as well as in‑court witnesses.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A witness testifies at trial that she saw the defendant at home on the night of the crime. On cross-examination, she is asked about a prior statement to police in which she said she did not see the defendant that night. For what purpose is this prior statement admissible?
   1. Only to impeach the witness's credibility.
   2. As substantive evidence if made under oath at a prior proceeding.
   3. As substantive evidence in all cases.
   4. Only if the witness admits making the statement.
2. Which of the following is NOT a proper method of impeaching a witness with inconsistent conduct?
   1. Showing the witness previously acted inconsistently with their testimony on a central issue.
   2. Introducing extrinsic evidence of a collateral inconsistent act that bears only on truthfulness.
   3. Asking the witness about a prior inconsistent act relevant to truthfulness on cross-examination.
   4. Using the witness's own prior inconsistent statement that contradicts their testimony.
3. After a witness is impeached with a prior inconsistent statement, which of the following is a proper method of rehabilitation?
   1. Introducing a prior consistent statement made after the alleged motive to lie arose.
   2. Introducing a prior consistent statement made before the alleged motive to lie arose.
   3. Introducing any prior consistent statement, regardless of timing.
   4. Rehabilitation is never permitted after impeachment.

Introduction

Inconsistent statements and conduct are central to the presentation of evidence, especially in assessing witness credibility. The Federal Rules of Evidence allow any party to attack a witness’s credibility (FRE 607), including the party who called the witness, and one of the most frequently tested methods is impeachment by inconsistency.

Key Term: Impeachment
The process of challenging the credibility of a witness by showing reasons to doubt the witness’s testimony, such as bias, prior inconsistent statements, defects in perception, or untruthful character.

Broadly, there are three recurring themes the MBE tests in this area:

• How to use prior inconsistent statements (and when they are also substantive evidence).
• How far you may go with inconsistent conduct and extrinsic evidence.
• How and when a witness can be rehabilitated after impeachment.

Understanding how these strands interact with the hearsay rules, Rule 403, and limits on extrinsic evidence is important for MBE success.

Impeachment by Prior Inconsistent Statements

A witness may be impeached by proving that they previously made a statement inconsistent with their present testimony. The inconsistency need not be a direct contradiction on a single fact; it can involve omissions or different versions that cannot reasonably be reconciled.

Key Term: Prior Inconsistent Statement
A statement made by a witness before trial that conflicts in a meaningful way with the witness’s current in‑court testimony.

Typical impeachment sequence:

• On cross-examination, the examiner confronts the witness with the prior statement (e.g., “Did you tell Officer Lee that you did not see the defendant that night?”).
• If the witness admits the prior statement, the inconsistency is established.
• If the witness denies or claims not to remember, the cross-examiner may, subject to certain limits, introduce extrinsic evidence of the prior statement (e.g., the officer’s testimony, a written statement).

Under FRE 613:

• The statement itself need not be shown to the witness before questioning, but must be shown or disclosed to opposing counsel on request.
• The witness must be given an opportunity at some point to explain or deny the statement, and the adverse party must have an opportunity to examine the witness about it.

This is primarily about fairness, and on the MBE it frequently appears as a preliminary issue.

Key Term: Extrinsic Evidence
Evidence other than the witness’s own in‑court testimony, such as documents, other witnesses, or recordings, offered to prove a fact (here, to prove that a prior inconsistent statement or act occurred).

Collateral vs Non‑Collateral Matters

A key limit concerns collateral matters.

Key Term: Collateral Matter
A fact relevant solely to attacking a witness’s credibility (truthfulness) and not to any substantive issue or other permissible purpose in the case.

If the inconsistency is collateral—e.g., which snack the witness was eating when the accident occurred—extrinsic evidence is generally not permitted. The cross-examiner must “take the answer” and cannot call additional witnesses or documents solely to contradict the witness on that trivial or purely credibility-related point.

If the inconsistent statement relates to a non‑collateral matter—one that is itself relevant to an issue in the case (such as how the collision occurred, who had the light, or whether the defendant was present)—extrinsic evidence is generally allowed, subject to Rule 403.

On the MBE, an answer choice that authorizes extrinsic evidence to prove contradiction on a purely collateral point is wrong.

Key Term: Inconsistent Conduct
Actions, omissions, or specific instances of behavior that conflict with a witness’s testimony or suggested version of events and can be used to show the testimony is unreliable.

Inconsistent conduct can be used in the same way as inconsistent statements for contradiction: if the conduct relates to a central fact, extrinsic evidence is usually allowed; if it is purely collateral and only relevant to untruthful character, extrinsic evidence is restricted (see FRE 608(b), discussed below).

Substantive Use of Prior Inconsistent Statements

Most prior inconsistent statements are hearsay if offered to prove the truth of what they assert. Under the default rule, they are admitted only for impeachment: the jury can use them to doubt the witness’s credibility but not to prove the facts stated.

Key Term: Substantive Evidence
Evidence admitted to prove the truth of the matter asserted, as opposed to evidence admitted solely to attack or support credibility.

There is an important exception under FRE 801(d)(1)(A). A prior inconsistent statement is treated as “not hearsay” (and therefore admissible substantively) if:

• The declarant testifies at the current trial and is subject to cross-examination about the statement; and
• The prior statement was given under penalty of perjury at a trial, hearing, or deposition (including a grand jury proceeding).

If these conditions are met, the jury may use the prior statement both:

• To impeach credibility; and
• As actual proof of the facts stated.

If the prior inconsistent statement was unsworn—e.g., during a police interview or in an informal conversation—FRE 801(d)(1)(A) does not apply. The statement may still come in to impeach, but not as substantive evidence (unless some other hearsay rule applies, such as an admission by a party-opponent).

Key Term: Hearsay Exclusion – Prior Inconsistent Statement Under Oath
A prior inconsistent statement given under oath at a trial, hearing, or deposition, by a witness who testifies and is subject to cross-examination, is defined as “not hearsay” and is admissible substantively under FRE 801(d)(1)(A).

Remember also: if the prior statement is the statement of a party and is offered against that party, it is independently admissible as a party-opponent statement (FRE 801(d)(2)), even if unsworn. But that is a different doctrine from the prior inconsistent statement of a non-party witness.

Key Term: Prior Consistent Statement
A statement made by a witness before trial that is consistent with the witness’s current testimony and may be used, in limited circumstances, to rehabilitate credibility and as substantive evidence.

Prior consistent statements are addressed under rehabilitation below.

Inconsistent Conduct

Impeachment may also be based on conduct inconsistent with a witness's testimony, but with important limits that depend on why the conduct is being used.

1. Inconsistent conduct as contradiction (substantive fact).

   If the conduct directly contradicts the witness on a point that matters to the issues in the case (non‑collateral), extrinsic evidence is allowed. For example:

   • The witness testifies he has never met the defendant.
   • The opponent introduces authenticated photos showing the witness and defendant together at a recent meeting.

   Here, the conduct (attending the meeting) is inconsistent with the testimony, and the contradiction concerns a key fact. Extrinsic evidence is permissible.

2. Inconsistent conduct as proof of untruthful character (specific acts).

   FRE 608(b) allows cross-examination about specific instances of a witness’s conduct if they are probative of the witness’s character for truthfulness or untruthfulness (e.g., lying on a loan application, falsifying records), but:

   • The court must permit the questioning under Rule 403.
   • Extrinsic evidence of those acts is not allowed if offered solely to show lack of truthfulness.

   This is where the “no extrinsic evidence of specific acts of untruthfulness” rule applies. You may ask the witness about those acts on cross; if the witness denies them, you cannot call other witnesses or produce documents solely to prove those specific acts.

   On an MBE question, “introducing extrinsic evidence of a collateral inconsistent act” is almost always improper under FRE 608(b).

Key Term: Character for Truthfulness
A witness’s general reputation or character trait for being truthful or untruthful, which may be attacked or supported through reputation or opinion testimony, and in limited ways through specific acts and convictions.

Rehabilitation After Impeachment

Once a witness has been impeached by prior inconsistent statements or conduct, the proponent may seek to rehabilitate credibility. Rehabilitation must “meet the attack”—it must address the particular way credibility was challenged.

Key Term: Rehabilitation
The process of restoring a witness’s credibility after impeachment by explaining, countering, or outweighing the basis for the attack.

Common methods on the MBE:

1. Explanation or denial.

   On redirect, counsel can give the witness an opportunity to explain the inconsistency. For example, the witness may clarify context, timing, or misunderstanding: “I said I ‘didn’t see’ the defendant because I meant I didn’t see his face clearly.” The jury may or may not accept the explanation, but it is a classic rehabilitative step.

2. Prior consistent statements (FRE 801(d)(1)(B)).

   Prior consistent statements are powerful rehabilitative tools, but only in narrow circumstances:

   • If the witness is accused of recent fabrication or improper motive, a prior consistent statement is admissible if made before the alleged motive to lie arose. This rebuts the claim that the story was recently invented.
   • Under the modern rule, prior consistent statements may also be used to rehabilitate when the witness has been attacked on other non-character grounds (e.g., inconsistency, faulty memory), provided they tend to restore credibility on that point.

   In both situations, the prior consistent statement is:

   • Admissible to rehabilitate; and
   • Treated as “not hearsay,” so it is also substantive evidence.

   Timing is critical on the bar exam. A prior consistent statement made after the alleged motive to fabricate arose does not rebut a charge of recent fabrication and is not admissible for that purpose.

3. Character for truthfulness (FRE 608(a)).

   If the witness’s character for truthfulness has been attacked—e.g., through reputation/opinion testimony that the witness is untruthful, or a pattern of specific acts implying untruthfulness—the proponent may call a character witness to testify to the impeached witness’s good reputation or opinion for truthfulness.

   Prior consistent statements do not open the door to specific act evidence to bolster truthfulness. Bolstering is allowed only in these prescribed ways.

Worked Example 1.1

A witness testifies that she saw the defendant at the scene of a robbery. On cross-examination, defense counsel asks if she told police the night of the incident that she did not see the defendant. The witness denies making such a statement. The defense calls the police officer, who testifies that the witness said she did not see the defendant.

Question: For what purpose is the officer's testimony admissible?

Answer:
The officer's testimony is admissible to impeach the witness's credibility by showing a prior inconsistent statement. Unless that prior statement was made under oath at a trial, hearing, or deposition, it is not admissible as substantive evidence of whether the defendant was at the scene. The jury may use it to doubt the witness but, if properly limited, not to decide the defendant’s presence.

Worked Example 1.2

A witness is impeached with a prior inconsistent statement suggesting recent fabrication. The proponent seeks to introduce a prior consistent statement made before the alleged motive to fabricate arose.

Question: Is the prior consistent statement admissible?

Answer:
Yes. A prior consistent statement made before the alleged motive to fabricate arose is admissible to rehabilitate the witness’s credibility by rebutting the charge of recent fabrication. Under FRE 801(d)(1)(B), it is also admissible substantively for the truth of the matter asserted.

Worked Example 1.3

At trial, a witness testifies, “The traffic light was red.” At a pretrial deposition taken under oath, she testified, “The light was green.” The witness is on the stand and is confronted with the deposition testimony.

Question: How may the deposition testimony be used?

Answer:
The deposition testimony is a prior inconsistent statement given under oath at a deposition. Because the witness is now testifying and subject to cross-examination, the prior statement is admissible both to impeach her credibility and substantively to prove that the light was green, under FRE 801(d)(1)(A).

Worked Example 1.4

A witness testifies that the defendant has “always been honest.” On cross-examination, the prosecutor asks, “Didn’t you lie on your law school application about being disciplined?” The witness denies it. The prosecutor then seeks to introduce the law school records to prove the lie.

Question: Is the extrinsic evidence admissible?

Answer:
No. The question about lying on the application is a specific instance of conduct probative of the witness’s character for truthfulness, so it may be asked on cross-examination under FRE 608(b). However, because it is offered only to show untruthful character—a collateral matter—extrinsic evidence (the records) is not permitted. The prosecutor must accept the witness’s answer.

Worked Example 1.5

A witness is impeached by evidence that he received money from the plaintiff shortly before trial, suggesting a motive to testify falsely. The proponent offers a prior consistent statement made after the payment.

Question: Is this prior consistent statement admissible to rehabilitate?

Answer:
No. To rebut a charge of recent fabrication based on a particular motive (the payment), the prior consistent statement must predate that motive. A statement made after the payment does not show that the witness’s story was formed before the alleged bias arose and is not admissible for that rehabilitative purpose.

Exam Warning

Impeachment by prior inconsistent statement or conduct is limited if the inconsistency relates only to a collateral matter. Extrinsic evidence may not be used solely to contradict the witness on collateral issues or to prove specific instances of untruthfulness under FRE 608(b).

Also, carefully distinguish:

• Prior inconsistent statements used only for impeachment (most unsworn statements); and
• Those that qualify as “not hearsay” under FRE 801(d)(1)(A) and can be used substantively.

Revision Tip

Always determine whether a prior inconsistent statement is being offered for impeachment only or also as substantive evidence:

• Ask whether the statement is being used to prove the facts asserted.
• If yes, check whether a hearsay exclusion or exception applies (especially FRE 801(d)(1)(A) or 801(d)(2)).
• If not, it is limited to impeachment, and a limiting instruction may be appropriate.

Key Point Checklist

This article has covered the following key knowledge points:

• Any party may impeach a witness, including with prior inconsistent statements and inconsistent conduct.
• Prior inconsistent statements are generally admissible only to impeach; they are admissible substantively only if they satisfy FRE 801(d)(1)(A) or fall under another hearsay rule.
• Collateral matters may be explored on cross, but extrinsic evidence is not permitted solely to contradict a witness about collateral points or specific acts of untruthfulness.
• Inconsistent conduct can impeach either by contradiction on non‑collateral issues (extrinsic evidence allowed) or as specific acts of untruthfulness (no extrinsic evidence).
• Prior consistent statements may rehabilitate a witness after certain forms of impeachment, particularly charges of recent fabrication, if they predate the alleged motive to lie, and are then admissible substantively.
• A witness’s character for truthfulness may be attacked or supported by reputation or opinion evidence, and in limited ways by specific acts and convictions.
• On the MBE, careful attention to purpose (impeachment vs substantive proof), timing (before or after motive to fabricate), and collateral versus non‑collateral issues often determines the correct answer.

Key Terms and Concepts

• Impeachment
• Prior Inconsistent Statement
• Substantive Evidence
• Collateral Matter
• Inconsistent Conduct
• Extrinsic Evidence
• Prior Consistent Statement
• Rehabilitation
• Character for Truthfulness
• Hearsay Exclusion – Prior Inconsistent Statement Under Oath