Texas Two Step: Texas Changes Rule Regarding Impeachment Through Prior Inconsistent Statements
Texas recently changed its rule regarding impeachment of witnesses through prior inconsistent statements. Texas Rule of Evidence 613(a) reads as follows:
(a) Witness’s Prior Inconsistent Statement.
(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:
(A) the contents of the statement;
(B) the time and place of the statement; and
(C) the person to whom the witness made the statement.
(2) Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.
(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.
(4) Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.
(5) Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2).
Conversely, Texas Rule of Evidence 613(a) used to read as follows:
In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be disclosed to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
So, how is this a change from prior Texas practice?
Assume that William testified at Dan’s trial for murdering Vince that he saw Dan murder Vince. Also assume that William told Fred at his house on April 1, 2015 that he saw Carl kill Vince. Under pre-amendment Rule 613(a), if defense counsel wanted to impeach William with his prior inconsistent statement, he would have to start his impeachment by asking something like, “Now William, Fred says that on April 1, 2015, you told him at his house that you saw Carl shoot Vince. Do you deny that you made that statement or have an explanation for it?”
What about under post-amendment Rule 613(a)? Under this new version of the Rule, defense counsel could start his cross-examination of William by asking, “Now William, are you aware that Fred has said you told him at his house on April 1, 2015 that Carl shot Vince?” If defense counsel wanted to follow up by asking whether William denied making this statement or had an explanation for it, he could ask relevant follow up questions. But if defense counsel didn’t want to ask follow up questions, he could refrain from asking them and he could also prevent William from denying or explaining the statement to Fred during cross-examination.
You can see the utility of the new version of the Rule for opposing counsel. They can now lead their cross-examination with the witness’s prior inconsistent statement and allow to linger, unchallenged, until the party calling the witness gets the witness to explain or deny the statement during redirect examination.
-CM