Also known as: FRE 801(d)(1)(A) · Fed. R. Evid. 801(d)(1)(A) · 801(d)(1)(A) · prior inconsistent statement
Written by attorneys — see sources below.
A rule that treats as nonhearsay a witness's prior inconsistent statement given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.
Margaret testified at trial that Republic Build approved extra work orders through its site supervisor. Republic Build offered excerpts from her earlier deposition in which she expressed uncertainty about who gave the approvals. The excerpts were admitted to show the inconsistency under the rule.
The dispatcher testified at trial that she had never reported Colby's brake complaint. Vanessa sought to introduce the dispatcher's earlier deposition testimony stating the opposite under oath. The court admitted the deposition excerpt as nonhearsay after the witness had an opportunity to explain.
Dawson testified at trial that he never saw Reed restrained on the floor. Reed's counsel played a portion of Dawson's deposition in which he stated that he watched Reed held face-down for several minutes. The deposition excerpt was offered solely to show the inconsistency.
A witness testified at trial in a manner inconsistent with his earlier testimony at a preliminary hearing. The prosecution offered the prior testimony under oath to contradict the current account. The court admitted the statement as nonhearsay.
In January 1967, sixteen-year-old Melvin Porter was arrested for selling marijuana to an undercover police officer. Four days after his arrest, while in the custody of juvenile authorities, Porter told Officer Wade that respondent John Green had supplied him with the marijuana. Porter stated that Green had called him earlier that month, asked him to sell some stuff or grass, and personally delivered a shopping bag containing twenty-nine baggies of marijuana from which Porter made the sale. A week later, Porter testified at Green's preliminary hearing. He again identified Green as his supplier, though he now stated that Green had shown him where to pick up the shopping bag hidden in the bushes at Green's parents' house rather than personally delivering it. Green's counsel, the same attorney who later represented him at trial, conducted extensive cross-examination of Porter at the hearing. At the conclusion of the hearing, Green was charged with furnishing marijuana to a minor. Green's trial took place two months later before a judge sitting without a jury in the Superior Court of San Luis Obispo County. Porter again took the stand as the State's chief witness but proved markedly evasive and uncooperative. He testified that Green had called him and asked him to sell some stuff and that he had obtained twenty-nine baggies of marijuana. Porter claimed he could not remember the events after the phone call because he had taken LSD twenty minutes before Green phoned and the drugs prevented him from distinguishing fact from fantasy. During Porter's direct examination, the prosecutor read excerpts from his preliminary hearing testimony, which were admitted as substantive evidence under California Evidence Code section 1235. Officer Wade also testified about Porter's earlier statement to him. Porter admitted making both prior statements and insisted he had been telling the truth as he then believed it, but he maintained that his current testimony about his inability to remember was also truthful. Green was convicted. The California Court of Appeal reversed the conviction, holding that the use of Porter's prior statements violated the Confrontation Clause. The California Supreme Court affirmed. The United States Supreme Court granted certiorari.
View caseAfter receiving Miranda warnings the defendant remained silent during police questioning. At a subsequent hearing the defendant gave sworn testimony describing events. The prosecution offered the defendant's prior sworn statement at the hearing to contradict the later account.
A defense investigator prepared notes of an interview with a potential witness. At trial the witness gave testimony inconsistent with his earlier deposition. The prosecution offered the deposition transcript to show the inconsistency under the rule.
The statement must have been given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition. It must also be inconsistent with the witness's current testimony and the witness must be subject to cross-examination.
Yes. Any party may use a deposition to contradict or impeach the deponent's trial testimony provided the ordinary evidentiary requirements are met. The rule does not require unavailability for impeachment use.
No. The rule permits extrinsic evidence of a prior inconsistent statement after the witness has an opportunity to explain or deny it. The court may order otherwise in appropriate circumstances.