A look at impeachment using prior inconsistent statements

By Hon. John B. Stevens

Man with fingers crossed behind his back

In almost every trial, attorneys attempt to impeach one or more witnesses using their prior inconsistent statements. Typically, during cross-examination the examiner will awkwardly approach the witness and tender a copy of the witness’s previous written statement and ask the witness to silently review a portion of the statement. Then the examiner will inquire into the inconsistencies. Such cross-examination is generally done in an unpersuasive fashion and contrary to the requisites of the Federal and Texas Rules of Evidence Rule 613.

Impeachment and Cross-Examination
One of the most difficult duties the fact-finder has to discharge in any trial is to test and ascertain the credibility of witnesses.1 A well-recognized test that witnesses may be subjected to is impeachment by proof of statements made contradictory to their trial testimony. Impeachment can discredit witness testimony.

Cross-examination is generally considered to be the most difficult part of the multifarious duties of the advocate.2 But, as of yet, no substitute has been found for cross-examination as a means of separating truth from falsehood and of reducing exaggerated statements to their true dimensions.3 Personal experience and emulating others trained in the art are the surest means of obtaining proficiency in this vital prerequisite of a competent trial lawyer.4

The Confrontation Clause of the Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.”5 More than being allowed to physically confront the witnesses, the main and essential purpose of witness confrontation is to secure the opportunity for cross-examination.6 When a declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of prior testimonial statements so long as the declarant is present at trial to defend or explain them.7

Additionally, exposing a witness’s motivation is a proper and important purpose for cross-examination.8 Parties are allowed great latitude to show “any fact that would or might tend to establish ill feeling, bias, motive and animus on the part of the witness.”9

Texas Rule 613
Texas courts have historically employed the practice of requiring a foundation to be laid during the examination of a witness’s prior inconsistent statement or concerning the witness’s bias or interest, now reflected in Rule 613 of the Rules of Evidence. Impeachment can apply to written as well as oral statements.10 Rule 613 is applicable to impeachment of one’s own witness as well as cross-examination. Federal and Texas Rules of Evidence similarly provide that a witness’s credibility can be attacked by any party.11

Traditionally, the general rule in Texas, as well as federal courts, was that prior contradictory declarations of a witness could not be used for impeachment until the witness was examined and his attention particularly directed to the circumstances, so as to allow the full opportunity for explanation if desired.12 If it was a written statement, production and display of it to the witness were ordinarily required prior to cross-examining him on its contents.13 Essentially, the law required the witness’s memory be refreshed enough to enable him to explain if he could and desired to do so.14

Showing and disclosing to witnesses the contents and circumstances surrounding prior inconsistent statements before presenting such evidence in the record originated from a 19th-century English case referred to as Queen Caroline’s Case.15 There, King George IV tried to divest his wife, Queen Caroline, of her title and rights thereof in a unique scandalous divorce action that historians have described as involving “nothing more than the foolish and scandalous personal lives of the most ridiculous royal couple in British history.”16

Nonetheless, the Rule in Queen Caroline’s Case, as announced by the English court, required a cross-examiner to show or read aloud to the witness extrinsic evidence of the witness’s prior inconsistent statement before questioning the witness about the inconsistencies.17 This practice was adopted in the United States in 1832.18 Subsequently, federal and state courts required the questioner to divulge some details of the circumstances of the prior statement as a predicate for its admission.19

The predicate developed under Texas law that must be laid before prior inconsistent statements may be offered for impeachment purposes contains some details regarding the circumstances in which the statement was made, usually specifying to the witness the place, time, and person to whom the statement was made.20 Consequently, Rule 613 of the Texas Rules of Evidence now provides that when questioning a witness’s prior inconsistent statement, the questioner must first tell the witness: (1) the contents of the statement; (2) the time and place of the statement; and (3) the person to whom the witness made the statement.21 The reason for these requirements sought the following objectives: (1) avoiding unfair surprise by giving the opposite party an opportunity to draw a denial or an explanation from the witness on redirect examination; (2) to give the witness an opportunity to deny or to explain any apparent discrepancy; and (3) to save time by eliminating the need for the cumulative introduction of the prior statement by allowing the witness to admit to the inconsistency.22 If the witness admits the prior inconsistent statement, the witness has effectively impeached himself.23 Further proof of it is precluded.24

Until recently, Texas Rules of Evidence 613 also required the witness to be afforded an opportunity to explain or deny such alleged inconsistent statement before any further cross-examination concerning the matter or extrinsic evidence of such statement was allowed.25 However, this practice tended to disrupt the momentum of cross-examination. It has long been understood that witnesses who come to tell a concocted story are reluctant to particularize and constantly shift and evade to gain time for deliberation and arrangement before they reply directly to a course likely to discredit their testimony. 26

Although Texas Rules of Evidence still require witnesses be given the opportunity to explain or deny prior inconsistent statements, Rule 613 was amended in 2015 to eliminate the requirement that the attorney seeking to impeach the witness afford the witness the opportunity to explain or deny the prior statement.27 There is no longer specification in Texas Rule 613 as to a particular sequence when to allow the witness an opportunity to explain or deny the prior inconsistent statement. The impeaching attorney may choose to cross-examine the witness regarding the prior inconsistent statement, thereby shifting the burden on redirect examination for its explanation or denial.28

Texas Rule 613 still requires the witness to actually be examined about the statement and fail to unequivocally admit making the statement before extrinsic evidence can be admitted.29 This does not mean the witness merely refuses to admit making a statement but rather refuses to admit making the contents of the statement at issue, equivocates, or qualifies his answer.30

To summarize, Texas Rule 613 still requires foundation requirements when examining witnesses about prior inconsistent statements. However, the examiner can now proceed with cross-examination of the witness and inquire directly about the prior inconsistent statement without first affording the witness an opportunity to explain or deny such statement. Thus, the discrepancy can be emphasized and the onus shifts to the party sponsoring the witness to perform damage control.

Federal Rule 613
Federal rules took a different direction with Queen Caroline. Since the Federal Rules of Evidence were established in 1975, federal practice has essentially allowed unimpeded examination of a witness concerning prior inconsistent statements.31 The federal rule does not require the examiner to disclose the contents or the circumstances surrounding the statement to the witness.32 The federal rule merely requires the impeached witness be afforded an opportunity to explain or deny the inconsistent statement.33

Thus, unlike Texas requirements, an impeaching examiner in federal court can question a witness about a purported prior statement without disclosing to the witness specifics about the time, place, or context of such statement. Furthermore, the opportunity of the impeached witness to deny or explain an inconsistent statement is not limited to a particular time or sequence during trial and it could be afforded the witness after extrinsic evidence of the inconsistent statement is admitted.34

Additional Comments
Unless it is otherwise admissible, such as statements offered against an opposing party, evidence of prior inconsistent statements is admissible only for impeachment purposes.35 Failing to timely object to its admission precludes the issue on appeal.36 Furthermore, failure to seek a jury instruction limiting its consideration of impeachment evidence only for impeachment purposes allows the jury to freely consider such evidence.37

Finally, both federal and Texas versions of Rule 613 state that “a party need not show” the prior inconsistent statement to the witness.38 Although Queen Caroline required the impeaching attorney to first show the statement to the witness, federal and Texas rules later abolished this “useless impediment to cross-examination.”39 Attorneys nonetheless tend to begin such cross-examination by allowing the witness to review his prior statement. As any good Texas Hold ’em player would agree, showing your hand is ineffective strategy. However, both Federal and Texas Rules of Evidence Rule 613 do require the prior statement be shown or its contents disclosed to opposing counsel if requested.40 This is designed to protect against unwarranted insinuations that a statement has been made when in fact it has not.41 TBJ

The author would like to give a special thanks for the completion of this article to Ed Tanner, general staff counsel to Jefferson County criminal courts, and Rene Mulholland, court reporter for the Jefferson County Criminal District Court.

Notes 1. H.B Wilson, The American Juror 88 (1868).

2. Francis L. Wellman, The Art of Cross-Examination: With the Cross-Examinations

of Important Witnesses in Some Celebrated Cases 22 (1904).

3. Id.

4. Id.

5. U.S. Const. amend. VI.

6. Davis v. Alaska, 415 U.S. 308, 315-16 (1974).

7. See Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004) (citing, inter alia, California v. Green, 399 U.S. 149, 162 (1970)).

8. Greene v. McElroy, 360 U.S. 474, 496 (1959); Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998).

9. London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987).

10. McGary v. State, 750 S.W.2d 782, 787 n. 5 (Tex. Crim. App. 1988).

11. Fed. R. Evid. and Tex. R. Evid. 607; see also Chambers v. Mississippi, 410 U.S. 284, 296 (1973) and Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999); but see Garcia v. State, 887 S.W.2d 862, 873-74 (Tex. Crim. App. 1994) (party may not call witness primarily to impeach him or to introduce otherwise inadmissible evidence).

12. The Charles Morgan v. Kouns, 115 U.S. 69, 77-78 (1885).

13. Id.

14. Id.

15. The Queen’s Case, 129 Eng. Rep. 976 (1820); see also Katharine T. Schaffzin, Sweet Caroline: The Backslide from Federal Rule of Evidence 613 (b) to the Rule in Queen Caroline’s Case, 47 U. of Mich. J.H. Reform 283 (Winter 2014).

16. Schaffzin at 286.

17. Id. at 289; Notes of Advisory Committee of Proposed Fed. R. Evid. 611 (a) (1972).

18. Id.

19. 28 Charles Alan Wright & Victor Gold, Federal Practice and Procedure, Sec. 6205 (2d ed. 2012).

20. Huffman v. State, 479 S.W.2d 62, 65-66 (Tex. Crim. App. 1972).

21. See also Huff v. State, 576 S.W.2d 645, 647 (Tex. Crim. App. 1979).

22. United States v. Bibbs, 564 F.2d 1165, 1169 (5th Cir. 1977).

23. Wood v. State, 511 S.W.2d 37, 43 n. 1 (Tex. Crim. App. 1974).

24. Id; See also Texas R. Evid. 613 (a)(4).

25. See Tex. R. Evid. 613 comment to 2015 restyling.

26. William Wills, An essay on the principles of circumstantial evidence 283-84 (Sir Alfred Wills ed., Boston Book Co. Fifth English ed. 1905) (1838).

27. Tex. R. Evid. 613 comment to 2015 restyling.

28. Id.

29. Tex. R. Evid. 613 (a)(4).

30. McGary, supra at 786 n. 3 and 4.

31. Fed. R. Evid. 613 (a) advisory committee’s notes (1972).

32. Fed. R. Evid. 613 (a).

33. Fed. R. Evid. 613 (b).

34. Fed. R. Evid. 613 (b) advisory committee’s notes (1972).

35. Jernigan v. State, 589 S.W.2d 681, 692 (Tex. Crim. App. 1979).

36. Garcia v. State, 887 S.W.2d 862, 874 (Tex. Crim. App. 1994).

37. Parson v. State, 193 S.W.3d 116, 122 (Tex. App.—Texarkana 2006, pet. ref’d).

38. Fed. R. Evid. and Tex. R. Evid. 613(a).

39. Fed. R. Evid. 611 advisory committee’s notes (1975).

40. Id.

41. Fed. R. 613(a) advisory committee’s notes (1972).

Hon. John StevensHON. JOHN B. STEVENS JR. has served as judge of the Jefferson County Criminal District Court since 2006. He was an assistant U.S. attorney for the Eastern District of Texas, receiving the Justice Department’s highest honor, the U.S. Attorney General’s Award for Exceptional Service, as one of the prosecutors of the James Byrd dragging death cases.

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