CORE CRIMINAL LAW SUBJECTS: Evidence: Prior Inconsistent Statements

2007

United States v. Harrow, 65 M.J. 190 (the process of impeachment by prior inconsistent statement is a tool to attack the credibility and/or recollection of a witness; by showing self-contradiction, the witness can be discredited as a person capable of error; MRE 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same; if the inconsistency is admitted, extrinsic evidence is generally not admissible; if the inconsistency is not admitted, or the witness equivocates, extrinsic evidence may be admitted, but only for impeachment).

(in this case, the military judge erred when he determined that a failure to remember facts contained in a prior statement cannot be inconsistent with in-court testimony that differs from those facts; an inconsistency for purposes of MRE 613 may be found not only in diametrically opposed answers, but also in inability to recall, or equivocation; a military judge has considerable discretion to determine if the trial testimony is inconsistent with a prior statement; but here the military judge appears not to have understood that an inability to recall or a non-responsive answer may present an inconsistency for purposes of MRE 613; consequently, his evidentiary ruling, based on an incorrect understanding of the law, was an abuse of discretion).

(the military judge did not abuse his discretion in rejecting a defense attempt, under the guise of impeachment by inconsistent testimony, to bring in new evidence that related to a point that the witness had not testified to at trial; the witness was not asked about this point during his testimony, there was no inconsistency, and the defense had not established a foundation for later impeachment).

2005

United States v. Meghdadi, 60 M.J. 438 (M.R.E. 608(c) [Evidence of bias] permits introduction of evidence, extrinsic or otherwise, tending to establish bias, prejudice, or motive to misrepresent on the part of a witness; M.R.E. 613(b) [Extrinsic evidence of prior inconsistent statement of witness] permits the extrinsic evidence of prior inconsistent statements if the witness denies making them, or equivocates).

2001

United States v. Palmer, 55 MJ 205 (although the usual practice is to confront the witness with an inconsistent statement during cross-examination, it is permissible to delay any mention of the inconsistent statement until other witnesses are called).

(military judge did not abuse his discretion by sustaining objection to alleged inconsistent statement where defense counsel’s proffer was vague, misdirected under the rules of evidence, not linked to the credibility of a prior witness, and did not allude to the inconsistency between the pretrial statement and trial testimony as the basis for admission).

2000

United States v. Cobia, 53 MJ 305 (the transcript of appellant’s guilty plea to the same acts as charged at court-marital was admissible as a prior inconsistent statement under MRE 613).

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