Presentation of evidence - Inconsistent statements and conduct

Learning Outcomes

After reading this article, you will be able to identify and apply the rules governing inconsistent statements and conduct in the presentation of evidence. You will understand how prior inconsistent statements are used for impeachment, when they may be admitted as substantive evidence, and how a witness may be rehabilitated after impeachment. You will also be able to recognize the limits and requirements for these techniques on the MBE.

MBE Syllabus

For the MBE, you are required to understand the evidentiary rules and strategies relating to inconsistent statements and conduct. This includes the use of prior inconsistent statements for impeachment, the admissibility of such statements as substantive evidence, and the procedures for rehabilitating a witness. You should be able to:

  • Recognize when a witness may be impeached by prior inconsistent statements or conduct.
  • Distinguish between impeachment and substantive use of inconsistent statements.
  • Identify the requirements for admitting prior inconsistent statements as substantive evidence.
  • Understand the methods and limits of rehabilitating a witness after impeachment.
  • Apply these principles to MBE-style questions involving witness credibility and the presentation of evidence.

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.
    2. Introducing extrinsic evidence of a collateral inconsistent act.
    3. Asking the witness about a prior inconsistent act relevant to truthfulness.
    4. Using the witness's own prior inconsistent statement.
  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 parties to impeach a witness by showing that the witness has previously made statements or acted in ways inconsistent with their current testimony. Understanding the rules for using prior inconsistent statements, the distinction between impeachment and substantive evidence, and the procedures for rehabilitation is essential for MBE success.

Impeachment by Inconsistent Statements

A witness may be impeached by showing that they have previously made a statement or engaged in conduct inconsistent with their present testimony. This is a primary method for challenging credibility.

Key Term: Impeachment The process of challenging the credibility of a witness by showing bias, prior inconsistent statements, or other reasons to doubt their truthfulness.

When a witness is confronted with a prior inconsistent statement, the examiner may ask about the statement on cross-examination. If the witness denies or does not recall making the statement, extrinsic evidence (such as another witness or a document) may be used to prove the inconsistency, provided the matter is not collateral.

Key Term: Prior Inconsistent Statement A statement made by a witness before trial that is inconsistent with the witness's current testimony.

Substantive Use of Prior Inconsistent Statements

Generally, a prior inconsistent statement is admissible only to impeach the witness, not as substantive evidence of the truth of the matter asserted. However, there is an important exception: if the prior inconsistent statement was made under oath at a prior trial, hearing, or deposition, and the witness is subject to cross-examination about it, the statement may be admitted as substantive evidence.

Key Term: Substantive Evidence Evidence that is admitted for the truth of the matter asserted, not merely to attack credibility.

Inconsistent Conduct

Impeachment may also be based on conduct inconsistent with a witness's testimony, but with important limits. Only conduct that is relevant to truthfulness or the facts at issue may be used. Extrinsic evidence of collateral inconsistent conduct is generally not permitted.

Key Term: Collateral Matter A fact not directly relevant to the issues in the case, used only to contradict a witness.

Rehabilitation After Impeachment

If a witness has been impeached by a prior inconsistent statement or conduct, the party who called the witness may seek to rehabilitate credibility. The most common method is to introduce a prior consistent statement made before the alleged motive to lie arose. This is permitted only if the witness's credibility has been attacked on grounds of recent fabrication, improper influence, or motive.

Key Term: Rehabilitation The process of restoring a witness's credibility after impeachment, often by showing prior consistent statements.

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. If the prior statement was not made under oath at a prior proceeding, it is not admissible as substantive evidence.

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 and, under the Federal Rules, may also be admitted as substantive evidence.

Exam Warning

Impeachment by prior inconsistent statement is limited if the inconsistency relates only to a collateral matter. Extrinsic evidence is not permitted to prove inconsistency on collateral issues.

Revision Tip

Always determine whether a prior inconsistent statement is being offered for impeachment only or also as substantive evidence. Check if the statement was made under oath at a prior proceeding.

Key Point Checklist

This article has covered the following key knowledge points:

  • Impeachment by prior inconsistent statements or conduct is a primary method for challenging witness credibility.
  • Prior inconsistent statements are generally admissible only for impeachment, unless made under oath at a prior proceeding.
  • Extrinsic evidence of inconsistent conduct is not permitted for collateral matters.
  • Rehabilitation is allowed with prior consistent statements made before the alleged motive to fabricate arose.
  • Prior consistent statements may be admitted as substantive evidence if used to rebut a charge of recent fabrication.

Key Terms and Concepts

  • Impeachment
  • Prior Inconsistent Statement
  • Substantive Evidence
  • Collateral Matter
  • Rehabilitation
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