Impeachment

Question 1

Prior Inconsistent Statements

Extrinsic Evidence Requirements

Answer 1

Statement must be relevant to the case and cannot be a collateral matter

Witness must be given an opportunity to explain or deny her statement at some point during the trial

Adverse party must be given opportunity to examine witness about statement

Exception to foundational Requirements: inconsistent statement made by hearsay declarant, declarant may be impeached despite lack of foundation

Question 2

Prior inconsistent statements not hearsay under 801(d)(1)

Answer 2

Witness’s prior inconsistent statement is not hearsay if

1. the declarant is now testifying at trial and subject to cross examination
2. And prior inconsistent statement was made under oath and penalty of perjury at a prior deposition, prior hearing, trial, proceeding or to a grand jury.

May be used as both impeachment and substantive evidence because not hearsay.

Question 3

806 Credibility of Unavailable Declarant

Answer 3

Under 806, the credibility of an unavailable declarant may be attached by evidence that would be admissible if the declarant had testified as a witness.

No requirement that the declarant must be present at trial to be impeached.

If declarant is impeached with evidence of prior inconsistent statement, foundational requirement that she must explain or deny her statement doesn’t apply.

Where declarant’s credibility is impeached, it can also be rehabilitated.