Also known as: prior inconsistent statements · PIS · inconsistent statement
Written by attorneys · grounded in primary & secondary sources — see below
A statement made by a witness outside of court before testifying that conflicts with the witness's in-court testimony. The statement may be used to attack the witness's credibility by showing inconsistency between the two accounts.
Select any source to read its text and confirm it supports the definition.
Paula Pierce sued Pulse Media for breach of contract. During settlement talks Pierce told Pulse Media's counsel that the contract required delivery within thirty days. At trial Pierce testified that the contract allowed sixty days. Pulse Media could not introduce the settlement statement to impeach Pierce because Rule 408 prohibits its use for that purpose.
Perry Pratt testified that he saw the accident at noon. Defense counsel possessed a police statement in which Pratt had said the accident occurred at 2 p.m. Before offering the police statement through another witness, counsel had to give Pratt an opportunity on cross-examination to explain or deny the earlier statement.
The prosecution introduced a nontestifying declarant's out-of-court statement identifying Peter Park as the shooter. Park's counsel then offered the declarant's earlier statement to police that Park was not present. The court admitted the earlier statement to attack the declarant's credibility even though the declarant never testified and had no chance to explain the inconsistency.
Paul Peterson testified for the defense that he was with the defendant at the time of the robbery. The prosecution offered Peterson's earlier statement to a detective naming the defendant as the robber. The court permitted the statement only to impeach Peterson's credibility and instructed the jury not to consider it for its truth.
Phuong Pham testified at a preliminary hearing that Pearl Porter committed the assault. At trial Pham was unavailable. The prosecution offered the preliminary-hearing transcript. Porter's counsel sought to introduce Pham's later statement recanting the identification. The court evaluated whether the recantation could be admitted without violating confrontation requirements.
A defense witness testified that the defendant was not involved in the offense. The prosecution attempted to introduce a pretrial services officer's report containing the witness's earlier inconsistent account. The court excluded the report because confidentiality rules governing pretrial services information barred its use for impeachment.
Extrinsic evidence is admissible only after the witness has been given an opportunity to explain or deny the statement and an adverse party has been given an opportunity to examine the witness about it, unless the court orders otherwise or justice so requires.
Supporting sources
Yes. Rule 408 prohibits admission of compromise offers, acceptances, and statements made during compromise negotiations when offered to impeach by a prior inconsistent statement or contradiction.
…Green's precedential significance. We accept neither. In Part II of Green , the Court held that use of a trial witness' prior inconsistent statements as substantive evidence did not, as a general rule, violate the Confrontation Clause. In Part III, the Court went further and held: "Porter's preliminary hearing testimony was admissible .…
…788 F.2d 210, 219-20 (4th Cir.) (government permitted to impeach witness’s trial testimony by introducing into evidence her prior inconsistent statements
…. . . inconsistent with the declarant’s testimony.” Likewise, Rule 613(b) contemplates the admission of extrinsic evidence of a “
Supporting sources
Yes. When a hearsay statement has been admitted, the declarant's credibility may be attacked by any evidence that would be admissible if the declarant had testified, including inconsistent statements, regardless of whether the declarant had an opportunity to explain or deny the statement.
Supporting sources
At common law and under the Federal Rules, a prior inconsistent statement offered solely to impeach is not hearsay because it is not offered to prove the truth of the matter asserted. Some prior inconsistent statements given under oath may also be admitted as substantive evidence under Rule 801(d)(1)(A).
Supporting sources
Rule 613(b) requires that the witness be given an opportunity to explain or deny the statement and that an adverse party be given an opportunity to examine the witness about it before extrinsic evidence is admitted, unless the court orders otherwise.
Supporting sources