See also: IMPEACHMENT.

1.  Generally

Witnesses may be impeached by showing that they previously made statements inconsistent with their present testimony.{footnote}FRE 801(d)(1)(A)(prior inconsistent statements made under oath treated as non-hearsay); United States v. Ard, 731 F.2d 718 (11th Cir. 1984)(criminal defendant who testifies may be impeached with prior inconsistent statements).
 
Ill. Rev. Stat. ch. 38, & 115-10.1 (criminal cases).{/footnote}  [The inconsistency must be relevant to a material issue in the case.{footnote}CHECK United States v. Battaglia, 394 F.2d 304 (7th Cir. 1968).
[Cf. Saltzburg @596.]{/footnote}  It cannot relate to a collateral issue.]?  Parties may not use prior inconsistent statements merely as a subterfuge to put otherwise inadmissible hearsay before the jury.{footnote}United States v. Miller, 664 F.2d 94 (5th Cir. 1981); Check Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979); United States v. Webster, 734 F.2d 1191 (7th Cir. 1984).{/footnote}

2.  Actual Inconsistency Required

  Statements will not be admitted under this rule unless they truly contradict the testimony at trial.{footnote}United States v. Hoyos, 3 F.3d 232, 236 (7th Cir. 1993).
Kelly v. Reynolds, 132 Ill. App. 2d 1098, 271 N.E.2d 370 (4th Dist. 1971)(statements must be "mutually repugnant or contradictory").{/footnote}  Whether a statement is inconsistent is left to the sound discretion of the trial judge.{footnote}United States v. Jones, 808 F.2d 561 (7th Cir. 1986); Tanker Management, Inc. v. Brunson, 918 F.2d 1524 (11th Cir. 1990).{/footnote}  A witness who refuses to testify cannot be impeached with a prior statement.{footnote}Thompson v. State, 480 S.W.2d 624 (Tex. Crim. 1972) (affidavit exonerating defendant inadmissible where affiant refused to testify for defense).{/footnote}

A witness who claims when testifying not to remember matters as to which she previously gave statements may not be impeached with those statements, since they are not truly inconsistent with the fact that she presently does not remember.{footnote}People v. Sam, 71 Cal. 2d 194 (1969).
But see State v. Woodson, 629 A.2d 386, 397 (Conn. 1993) (witness’s recorded statement to police admissible as inconsistent statement where witness claimed not to remember what he told police).{/footnote}  If the witness also gives an evasive answer, however, the prior statement may be held admissible.{footnote}Clifton v. Ulis, 17 Cal. 3d 99 (1976).{/footnote}

3.  Procedure

3(a).  Traditional Rule

Courts are divided on the proper procedure for impeaching a witness with a prior inconsistent statement.{footnote}Check United States v. Nacrelli, 468 F. Supp. 241 (E.D. Pa. 1979).{/footnote}  Traditionally, counsel impeaching the witness is required to question the witness about the prior statement before it may be introduced.{footnote}United States v. DiNapoli, 557 F.2d 962 (2d Cir. 1977).{/footnote}  Counsel must describe for the witness the substance of the prior statement and the circumstances under which it was made.  If the witness denies having made the statement, claims not to remember it,{footnote}United States v. Marzano, 537 F.2d 257 (7th Cir. 1976) (enough that witness claims not to remember statement or is equivocal).
State v. Woodson, 629 A.2d 386, 397 (Conn. 1993) (witness’s recorded statement to police admissible as inconsistent statement where witness claimed not to remember what he told police).

But see Rigor v. Howard Liquors, 10 Ill. App. 3d 1004, 295 N.E.2d 491 (1st Dist. 1973)(if witness is equivocal, impeachment not complete and inconsistent statement inadmissible).{/footnote} or refuses to answer, the statement may be introduced into evidence.{footnote}State v. Miles, 436 P.2d 198 (Wash. 1968).{/footnote}  If the witness admits having made the statement, however, counsel cannot then proceed to introduce the statement itself.{footnote}United States v. Greer, 806 F.2d 556 (5th Cir. 1986)(tape recording excluded); Dilley v. Chesapeake & O.R. Co., 327 F.2d 249 (6th Cir. 1964); Brooks v. United States, 309 F.2d 580 (10th Cir. 1962); State v. Buffone, 234 P. 539 (Utah 1925). 

But see Rigor v. Howard Liquors, 10 Ill. App. 3d 1004, 295 N.E.2d 491 (1st Dist. 1973)(if witness is equivocal, impeachment not complete and inconsistent statement inadmissible).{/footnote}  With written statements, the traditional rule, also known as the Rule in Queen Caroline’s Case, was that an inconsistent statement had to be shown to the witness before the witness could be asked about it (see below).{footnote}Queen Caroline’s Case, 129 Eng. Rep. 976 (1820).{/footnote}

3(b).  Modern Rule

Many jurisdictions have moved away from the traditional procedural requirements in different ways. 

3(b)(i).  Foundational Questions

In federal court and in some states, the court may waive the requirement that the witness first be questioned about the statement where doing so would be in the "interests of justice."{footnote}FRE 613(b); Cal. § 770(b).{/footnote}  Courts will often waive the foundation requirement where the prior statement is discovered after the witness has testified and is no longer available.  Courts in other states weigh the probative value of the prior statement as impeachment evidence against the value of allowing the witness an opportunity to explain the statement and use their discretion in deciding whether to waive the foundation requirement.  Courts in some states will waive the foundation requirement where the witness is still under subpoena and can therefore be called to explain the statement.

3(b)(ii).  Disclosing Statement to Witness

The statement itself need no longer be disclosed to the witness at the time he or she is being questioned on it, but it must be disclosed to opposing counsel upon request.{footnote}FRE 613(a).{/footnote}

3(b)(iii).  Written Statements

To impeach a witness with a written inconsistent statement, the statement need only be shown to the witness and the witness questioned as to whether it is or is not the witness’ statement.{footnote}United States v. Rogers, 549 F.2d 490 (8th Cir. 1976).{/footnote}  The traditional Rule in Queen Caroline’s Case, requiring that the statement be shown to the witness before the witness could be asked about it, is no longer recognized in most states, and the questioner can show the witness the statement after questioning the witness about it.

Only those portions of the statement which are inconsistent may be introduced.{footnote}United States v. McCowan, 471 F.2d 361 (10th Cir. 1972) (entire affidavit not admissible).{/footnote}

4.  Extrinsic Evidence

Extrinsic evidence of a witness’ inconsistent statement is not allowed where the matter is not otherwise relevant to an issue in the case (i.e., a collateral matter).{footnote}State v. Shane, 285 S.E.2d 813, 819 (N.C. 1982); McCormick’s Handbook of the Law of Evidence § 47 (2d ed. 1972); 3A Wigmore on Evidence § 879 (Chadbourn rev. 1970).{/footnote} 

4.  Party Admissions

Note that where the prior statement is that of a party who is testifying, no foundation is required because the statement is independently admissible as an admission.{footnote}FRE 613(b); Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364 (11th Cir. 1988).{/footnote}  See also ADMISSIONS; INTERROGATORIES; PLEADINGS AND PLEAS.

5.  Impeachment of Hearsay Declarant

The credibility of one whose hearsay has been admitted may be impeached by an inconsistent statement, without the necessity of providing the hearsay declarant an opportunity to testify and explain.{footnote}FRE 806; Cal. § 1202.{/footnote}

6.  Rehabilitation

Where a witness has been impeached with a prior inconsistent statement, he or she must be afforded an opportunity to explain or deny the prior statement,{footnote}United States v. Barrett, 539 F.2d 244 (1st Cir. 1976); United States v. Hayutin, 398 F.2d 944 (2d Cir. 1968); United States v. Marks, 816 F.2d 1207 (7th Cir. 1987); United States v. Spears, 827 F.2d 705 (11th Cir. 1987); Hilyer v. Howat Concrete Co., 578 F.2d 422 (D.C. Cir. 1978).{/footnote} and the offering party will be allowed to call witnesses to testify as to the first witness’ good reputation for truthfulness.{footnote}6 A.L.R. 862.{/footnote}  Under some circumstances, prior consistent statements are also admissible.  See CONSISTENT STATEMENTS. 

7.  Use as Substantive Evidence

Most states do not permit prior inconsistent statements to be used as substantive evidence, since they are hearsay if offered for their truth.{footnote}United States v. Tavares, 512 F.2d 872 (9th Cir. 1975) (check) (G); Lewis v. Ins. Co. of North America, 416 F.2d 1077 (5th Cir. 1969) (check) (G); 133 A.L.R. 1454.
Contra State v. Woodson, 629 A.2d 386, 397 (Conn. 1993) (tape recorded inconsistent statement to police admissible as substantive evidence); State v. Whelan, 513 A.2d 86 (Conn.), cert. denied, 479 U.S. 994 (1986) (written inconsistent statement admissible as substantive evidence if signed, witness had personal knowledge, and is subject to cross-examination).{/footnote}  The court is required to instruct the jury as to the proper use of impeachment evidence.{footnote}United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970).
 
133 A.L.R. 1454 (CHECK).{/footnote}  The federal rule is the same,{footnote}United States v. Crouch, 731 F.2d 621 (9th Cir. 1984).{/footnote} except that a prior inconsistent statement may be admitted as substantive evidence if it was made under oath at an earlier proceeding of some sort.{footnote}FRE 801(d)(1)(A); United States v. Coran, 589 F.2d 70 (1st Cir. 1978); United States v. Cunningham, 446 F.2d 194 (2d Cir. 1971); United States v. Dietrich, 854 F.2d 1056 (7th Cir. 1988); United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir. 1976) (sworn statements made at border patrol interrogation).{/footnote}  Some states recocognize an exception to the hearsay rule for all inconsistent statements which allows them to be introduced as substantive evidence.{footnote}Cal. § 1235; People v. Williams, 16 Cal.3d 663 (1976).  State v. Jolly, 116 P.2d 686 (Mont. 1941).{/footnote}

7(a).  Confrontation Clause

The United States Supreme Court has ruled that it is not a violation of a criminal defendant’s Confrontation Clause rights to introduce the prior inconsistent statement of a witness for substantive purposes, so long as the witness is available to be cross-examined.{footnote}California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Check United States v. Quesada-Rosadal, 685 F.2d 1281 (11th Cir. 1982); Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982).

{/footnote}  Some state courts have held otherwise, however, with respect to inconsistent statements which were not under oath.