Rule 613: That s not what you said before! By: Andy Moorman Assistant U.S. Attorney

ATTACKING THE CREDIBILITY OF A WITNESS The theory of attack by prior inconsistent statements is not based on the assumption that the present testimony is false and the former statement true but rather upon the notion that talking one way on the stand and another way previously is blowing hot and cold, and raises a doubt as to the truthfulness of both statements. United States v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999) (quoting McCormick on Evidence, 34, at 114).

F.R.E. 613 (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

S.C.R.E. 613 (a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and is given the opportunity to explain or deny the statement. If a witness does not admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible. However, if a witness admits making the prior statement, extrinsic evidence that the prior statement was made is inadmissible. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

A World Without Rule 613 The general prohibition against hearsay, contained in Rule 802, likely would not render prior inconsistent statements inadmissible. Impeachment evidence, in contrast, is admitted not for the truth of the matter asserted but solely for the fact that the witness' trial testimony is less believable if he has made inconsistent statements about the matter on earlier occasions. United States v. Hudson, 970 F.2d 948, 956 (1st Cir. 1992) (citation omitted). A prior inconsistent statement is admissible to raise the suggestion that if a witness makes inconsistent statements, then his entire testimony may not be credible; such an inference does not depend on whether either the prior statement or the subsequent in-court statement is true. United States v. Bao, 189 F.3d 860, 866 (9th Cir. 1999)

A World Without Rule 613 (cont) It is well settled that evidence is not hearsay unless offered to prove the truth of the matter asserted.... Since the purpose of questioning Officer Floyd about the contents of Hank's prior statement was impeachment, not to prove its truth, it should have been admitted. State v. Smith, 309 S.C. 442, 448, 424 S.E.2d 496, 499 (1992)

WHY DOES RULE 613 EXIST? Why is a witness given this opportunity to first explain his inconsistent statement before extrinsic evidence is admitted to impeach her? Essentially for two reasons. First, for fundamental fairness. The rationale is that an inconsistent statement can be so damning that a witness should be afforded the opportunity to explain such a statement before it is paraded before the jury. Second, for efficiency. If the witness was not given an opportunity to explain the inconsistent statement while on the witness stand, then he might have to be called back a second time after extrinsic evidence was admitted. This would lead to wasteful consumption of court time, especially if this is repeated with several witnesses. http://www.lawcatalog.com/filesuploaded/product/samplefiles/pages%20f rom%20nj%20evidence%20book%20to%20printer-2.pdf

What is a statement under Rule 613? Oral statement- Fed.R.Evid. 613(a) clearly contemplates that a witness's prior oral statement may be the subject of cross-examination.... Jankins v. TDC Mgmt. Corp., 21 F.3d 436, 442 (D.C. Cir. 1994). Written statement- The written statement by Bernard Haithcock became admissible as a prior inconsistent statement under Federal Rule of Evidence 613 once Mr. Haithcock testified at trial. Ratliff v. United States, 2013 WL 1567405, at *7 (D.S.C. 2013) Silence- [A] witness's prior silence regarding critical facts may constitute a prior inconsistent statement where failure to mention those matters... conflict[s] with that which is later recalled. United States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995) (internal quotations and citations omitted.).

When is a statement inconsistent under Rule 613? In determining whether a witness has admitted making a prior inconsistent statement and thereby obviated the need for extrinsic proof, the courts of our state and other jurisdictions have held that the witness must admit making the prior statement unequivocally and without qualification. State v. Blalock, 357 S.C. 74, 80, 591 S.E.2d 632, 635 (Ct. App. 2003) (citation omitted). A prior statement is inconsistent if it, taken as a whole, either by what it says or by what it omits to say affords some indication that the fact was different from the testimony of the witness whom it sought to contradict. United States v. Barile, 286 F.3d 749, 755 (4th Cir. 2002) (citation omitted).

Definition of Extrinsic Evidence Evidence (not) brought out by the examination of the witness testifying. BRYAN A. GARNER, EDITOR, BLACK S LAW DICTIONARY 578 (7 TH ed. 1999) (defining intrinsic evidence as Evidence brought out by examination of the witness testifying. ).

Before extrinsic evidence of statement can be introduced under F.R.E. 613 Rule 613(b) permits the admission of a prior statement for impeachment purposes, so long as the prior statement is inconsistent, the witness is afforded an opportunity to explain or deny the prior statement, and the opposing party is permitted to interrogate the witness about such a statement. Even if the requirements of Rule 613(b) are otherwise satisfied, a court is not obligated to admit the extrinsic evidence if, under Rule 403, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. United States v. Barnes, 480 Fed. Appx. 231, 235 (4th Cir. 2012) (unpublished) (internal quotations and citations omitted).

When must witness be given an opportunity to explain or deny under F.R.E. 613(b)? We have expressly recognized that the foundational prerequisites of Rule 613(b) require only that the witness be permitted-at some pointto explain or deny the prior inconsistent statement. United States v. Young, 86 F.3d 944, 949 (9th Cir. 1996) (citation omitted)

When must witness be given an opportunity to explain or deny under S.C.R.E. 613(b)? The South Carolina rule differs from the federal rule in that a proper foundation must be laid before admitting a prior inconsistent statement. It is mandatory that a witness be permitted to admit, deny, or explain a prior inconsistent statement. Under Rule 613(b), extrinsic evidence of the statement is not admissible unless the witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made. State v. McLeod, 362 S.C. 73, 81, 606 S.E.2d 215, 219 (Ct. App. 2004).

Consideration of extrinsic evidence of a prior inconsistent statement Even if that prior inconsistent statement would otherwise be inadmissible as hearsay, it may be admissible for the limited purpose of impeaching the witness. At a criminal trial, however, there are limits on the Government's power to impeach its own witness by presenting his prior inconsistent statements. See United States v. Morlang, 531 F.2d 183 (4th Cir.1975). In Morlang, we reversed the defendant's conviction for conspiracy to bribe and bribery because the Government had employed impeachment by prior inconsistent statement as a mere subterfuge to get before the jury evidence not otherwise admissible. United States v. Ince, 21 F.3d 576, 579 (4th Cir. 1994). See also, United States v. Feliciano, 761 F.3d 1202, 1210 (11th Cir. 2014) (citation omitted) ( Ordinarily a prior inconsistent statement is admissible only for the purpose of impeachment and not as substantive evidence. ).

Consideration of extrinsic evidence of a prior inconsistent statement (Cont) A prior inconsistent statement may be admitted as substantive evidence when the declarant testifies at trial and is subject to crossexamination. State v. Stokes, 381 S.C. 390, 398 99, 673 S.E.2d 434, 438 (2009).

HYPOTHETICALS

THE END Andy Moorman AUSA 864-525-2662 Andrew.moorman@usdoj.gov