During cross-examination, counsel may confront a witness with a prior inconsistent statement to undermine credibility. Under Rule 613, the cross-examiner must give the witness an opportunity to explain or deny the statement, and the opposing party must have an opportunity to examine the witness about it. If the prior statement was made under oath at a trial, hearing, or deposition, it qualifies as non-hearsay under Rule 801(d)(1)(A) and may be considered for its truth. Otherwise, the statement is admissible only for impeachment — the jury may consider it in evaluating credibility but not as proof of the facts stated.
Attorney: "Mr. Williams, you testified today that the light was green, correct?" Witness: "Yes." Attorney: "Isn't it true that in your deposition on June 3rd, under oath, you stated — and I quote — 'The light was red when the defendant entered the intersection'?" Witness: "I... I may have been confused at the deposition."
Attorney: "Your Honor, I offer the deposition transcript page 47, lines 3 through 8, as substantive evidence under Rule 801(d)(1)(A), as it was a statement made under oath at a prior proceeding." Judge: "It will be received as substantive evidence."
Judge: "Members of the jury, the prior statement you just heard may be considered only for evaluating the witness's credibility, not as proof of the facts stated therein, as it was not made under oath at a formal proceeding."
Students frequently confuse impeachment use with substantive use. A prior inconsistent statement used solely for impeachment is not evidence of the facts stated — the jury hears it only to assess credibility. Only prior inconsistent statements made under oath at a formal proceeding qualify as substantive evidence under Rule 801(d)(1)(A).
United States v. Owens, 484 U.S. 554 (1988)
Held that the Confrontation Clause does not bar admission of a prior identification statement under Rule 801(d)(1)(C) even when the witness cannot remember the basis for the identification at trial, as long as the witness is subject to cross-examination.
Tome v. United States, 513 U.S. 150 (1995)
Held that prior consistent statements under Rule 801(d)(1)(B) are admissible as substantive evidence only when made before the alleged motive to fabricate arose, limiting their use as rehabilitation tools.
| Impeachment Only | Substantive Evidence (Rule 801(d)(1)(A)) |
|---|---|
| Statement not made under oath | Statement made under oath at a proceeding |
| Jury considers only for credibility | Jury may consider for truth of matter asserted |
| Limiting instruction given if requested | No limiting instruction needed |
| Available for any prior inconsistent statement | Only available for sworn testimony at proceedings |
| Does not satisfy burden of proof alone | Can satisfy burden of proof as substantive evidence |
When can a prior inconsistent statement be used as substantive evidence?
A prior inconsistent statement qualifies as substantive evidence (non-hearsay) under Rule 801(d)(1)(A) only if it was given under oath subject to the penalty of perjury at a trial, hearing, other proceeding, or deposition. Prior inconsistent statements not made under oath are limited to impeachment purposes only.
Must a witness be given an opportunity to explain a prior inconsistent statement?
Under Rule 613(b), a witness must be given an opportunity to explain or deny the prior inconsistent statement, and the opposing party must have an opportunity to examine the witness about it. However, this requirement does not apply when the statement is used to impeach a hearsay declarant under Rule 806.
What is the difference between impeachment use and substantive use of a prior inconsistent statement?
When used solely for impeachment, the prior statement can only be considered by the jury in evaluating the witness's credibility — not as proof of the facts stated. When admitted as substantive evidence under Rule 801(d)(1)(A), the jury may consider the statement for its truth. The court gives a limiting instruction when the statement is admitted only for impeachment.
Impeachment is the process of attacking a witness's credibility to reduce the weight the jury gives ...
Cross-examination is the questioning of a witness by the opposing party after direct examination. It...
Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. ...
A deposition is a form of discovery in which a witness gives sworn testimony outside of court, typic...
