Evidence: Testimonial Evidence: Witnesses: Impeachment: Prior Inconsistent Statement

• Prior Inconsistent Statements – a party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. A witness's prior inconsistent statement may be used to impeach him or her.

• Federal Exception: Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. But if statement was made (a) under oath, and (b) as part of a formal hearing proceeding; trial or deposition, it is admissible non-hearsay and may be admitted as substantive evidence.

• A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement.

• Timing – Federal Rule: Timing more flexible than NY. Inconsistent statement may be proven by extrinsic evidence, so long as the witness is later given an opportunity to return to the stand and explain.

• Exception: If the witness is the opposing party, there is no need to give the witness/party an opportunity to explain the prior inconsistent statement.

• Related hearsay issue for party statements: A prior statement of the opposing party will also be admissible for substantive evidence under the separate hearsay exception for party admissions.