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Evidence Chapter 7 Impeachment And Rehabilitation Outline

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This is an extract of our Evidence Chapter 7 Impeachment And Rehabilitation document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School students.

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Table of Contents

Chapter 7. Impeachment and Rehabilitation 1

A. Introduction 1

B. Character for Untruthfulness 2

1. In General 2

2. Prior Criminal Convictions 5

a. Admissible and Inadmissible Convictions 5

b. Preserving Claims of Error 9

C. Prior Inconsistent Statements 10

D. Bias and Incapacity 17

E. Specific Contradiction 19

F. Rehabilitation 23

1. In General 23

2. Character for Truthfulness 24

3. Prior Consistent Statements 27

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 7. Impeachment and Rehabilitation

A. Introduction


  • Evidence is impeachment if relevant because it suggests a certain witness lacks credibility and therefore their testimony should be disregarded; evidence is rehabilitation if relevant because it rebuts impeachment.

    • Just as cross-exam is not limited to impeachment and redirect is not limited to rehabilitation, so impeachment is not limited to cross-exam and rehabilitation is not limited to redirect

  • Different terms for distinguishing when rehabilitation or impeachment occurs through testimony of witness being impeached or rehabilitated versus through use of other evidence. Also distinguishes between different “modes” of impeachment—different kinds of facts that can undermine credibility of witness.

FRE 607. Who May Impeach a Witness

  • Any party, including the party that called the witness, may attack the witness's credibility.

FRE 806. Attacking and Supporting the Declarant’s Credibility

  • When a hearsay statement--or a statement described in Rule 801(d)(2)(C), (D), or (E)--has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

McCormick on Evidence

  • Five main modes of impeachment:

    • Proof of prior inconsistent statement

      • Most frequently employed; also called “self contradiction.”

    • Showing witness is biased

      • On account of emotional influences such as kindship for one party or hostility to another, or motives of pecuniary interest, whether legitimate or corrupt.

    • Attack on witness’ character

      • Lack of religious belief is not available as basis of attack on credibility

    • Showing a defect of witness’ capacity

      • To observe, remember, or recount the matters testified about

    • Specific contradiction

      • Proof by other witnesses that material facts are not as testified to by the witness being impeached.

  • Process of impeachment can proceed in two stages:

    • First, facts discrediting witness may be elicited from witness himself on cross-exam.

      • A good faith basis for the inquiry is required.

      • Certain modes of attack are limited to this stage; the shorthand expression is “you must take his answer.”

      • When a mode of attack is limited in this manner, cross-examiner is said to be restricted to “intrinsic” impeachment.

    • Second, in other situations, facts discrediting the witness may be proved by extrinsic evidence.

  • FRE Art. IV contains only a handful of express regulations for impeachment techniques; in all others, judge applies general principles of FRE 401–403.

B. Character for Untruthfulness


  • Showing untruthfulness is a variety of character evidence.

  • Traditional exception to character evidence rule for impeachment is codified in FRE 404(a)(3), but carries important limitations.

1. In General

FRE 608. A Witness's Character for Truthfulness or Untruthfulness

  • (a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

  • (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

    • (1) the witness; or

    • (2) another witness whose character the witness being cross-examined has testified about.

  • By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

FRE 610. Religious Beliefs or Opinions

  • Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

Advisory Committee Note to FRE 608

  • Inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally.

    • This sharpens relevancy, reduces surprise, waste of time, and confusion, as well as making lot of witnesses somewhat less unattractive.

  • While the modern practice purports to exclude opinion, witnesses often seem to be giving opinion disguised as reputation. Common relaxation allows inquiry as to whether witness would believe the principal witness under oath.

  • In conformity with FRE 405, this rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility

    • Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-exam of the principal witness or of a witness who testifies concerning the principal witness’ character for truthfulness.

  • Safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time.

Advisory Committee Note to FRE 610

  • While rule prohibits inquiry into religion for showing truthfulness, inquiry for the purpose of showing interest of bias is not within the prohibition

    • E.g., disclosure of affiliation with a church which is party to the litigation would be allowable under the rule

United States v. Lollar, 606 F.2d 587 (5th Cir. 1979)


  • D appeals conviction for transport of stolen property, allegedly stolen from warehouse.

  • After D testified at trial, P recalled one of the witnesses and asked whether he would believe D under oath.

    • D counsel’s objection overruled and witness testified he would not believe D.

Opinion (Hill):

  • Though D cannot be compelled to take stand in his own defense, once he does he places his credibility in issue as does any other witness.

    • D’s decision to testify does not open door to attacks on general character, but does free P to offer evidence bearing on D’s believability as a witness.

  • FRE 608(a) allows witness to be directly asked to state their opinion of the principal witness’ character for truthfulness.

    • Rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness.

  • TC was within discretion in overruling D’s objection. Affirmed.

United States v. Rosa, 891 F.2d 1063 (3d Cir. 1989)


  • Ds were convicted of cocaine trafficking; a co-conspirator who pled guilty testified for P.

  • Ds contend TC improperly prohibited their cross-exam of co-con regarding prior bribery because co-con had not been convicted for that conduct.

Opinion (Stapleton):

  • Trial judge did not prohibit questioning because co-con was not convicted, but because conduct was not probative of truthfulness, in accordance with FRE 608 and 609.

    • TJ permitted D to question co-con concerning conspiratorial oath of loyalty to crime family to extent it bore on truthfulness.

    • TJ correctly allowed cross-exam concerning fraudulent insurance claim, since fraud is one of the offenses bearing on witness’ credibility.

    • But bribery does not bear on truthfulness, was minimally probative given the permitted exam on the underlying fraud.

  • TJ did not abuse discretion in limiting cross-exam. Affirmed.

United States v. White, 972 F.2d 590 (5th Cir. 1992)


  • Ds appeal convictions for conspiracy and distribution of cocaine.

  • Ds sought to invoke FRE 404(b), along with FRE 405(b) and FRE 406 to introduce evidence of extrinsic offenses committed by P’s star witness, W.

    • Proffered testimony by W’s prior attorney that W had previously offered to fabricate testimony against an individual in exchange for government leniency in charges pending against him.

    • D claimed evidence admissible under FRE 404(b) to show W’s intent to fabricate evidence in order to gain favorable consideration from government in his own case.

    • TC, relying on FRE 608(b) ruled that defendants could elicit evidence of W’s credibility only on cross-exam of W, not through extrinsic source.

Opinion (Davis):

  • Except for credibility, W’s intent was not an issue in case. Evidence could only have served to demonstrate W had proclivity to lie and was therefore probably lying in this case.

  • FRE 404(b) prohibits use of extrinsic act evidence for this purpose.

    • Use of evidence to attack a witness’ credibility is subject to the limitations of FRE 608.

    • Specific instances of misconduct for the purpose of attacking credibility cannot be proved by extrinsic evidence.

  • TC did not abuse discretion. Affirmed.

United States v. Aponte, 31 F.3d 86 (2d Cir. 1994)


  • D appeals conviction for conspiracy to rob postal truck.

  • TC excluded as hearsay a sworn statement by P’s witness containing fabrications and false descriptions of robbers.

Opinion (Winter):

  • TC applied wrong evidentiary rule, but nevertheless properly excluded evidence.

    • W’s fabricated statement and false descriptions were not offered for the truth of the matter asserted and therefore were not hearsay under FRE 801(c).

    • Rather, they were offered to show W’s capacity for deception. However, they were excludable as extrinsic evidence of the character and conduct of W under FRE 608(b).

2. Prior Criminal Convictions


  • Upshot of general rules regarding impeachment for dishonesty is that a witness can be impeached with evidence that that it is in his nature to be deceitful, but not by extrinsic evidence of specific acts of dishonesty.

  • Ban on impeachment with extrinsic evidence of specific acts of deception is waived for certain criminal convictions.

    • CL allowed felonies, but FRE is more complicated.

a. Admissible and Inadmissible Convictions

FRE 609. Impeachment by Evidence of a Criminal Conviction

  • (a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

    • (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

      • (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

      • (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

    • (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement.

  • (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

    • (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

    • (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

  • (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

    • (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

    • (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

  • (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

    • (1) it is offered in a criminal case;

    • (2) the adjudication was of a witness other than the defendant;

    • (3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and

    • (4) admitting the evidence is necessary to fairly determine guilt or innocence.

  • (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

United States v. Wong, 703 F.2d 65 (3d Cir. 1983)


  • D found guilty of mail fraud.

  • D had twice previously been convicted for fraud. Before taking stand, D moved to preclude use of these convictions for impeachment.

    • TC stated probative value of convictions did not outweigh prejudicial effect, but since the convictions were for crimes involving dishonesty or false statement [called “crimen falsi”], FRE 609(a)(2) precluded balancing of prejudice against probative value.

  • D claims error in conclusion that crimen falsi are admissible as impeachment without reference to their prejudicial effect.

Opinion (Per Curiam):

  • FRe 609 differentiates on its face between convictions for crimes punishable by imprisonment of more than one year, which are admissible under FRE 609(a)(1) only if probative value outweighs prejudicial effect, and convictions for crimen falsi, which are admissible under FRE 609(a)(2) and simply “shall be admitted.”

    • FRE 403 does not apply to FRE 609(a)(2), as shown by legislative history. Rule provides that evidence of a conviction of a crime involving dishonesty or false statement may always be used to impeach.

  • Admission of prior convictions involving dishonesty and false statements is not within the discretion of the court. Affirmed.

United States v. Amaechi, 991 F.2d 374 (7th Cir. 1993)


  • D convicted of narcotics trafficking.

  • P’s witness delivered drugs to D. D argues TC erred in excluding evidence of W’s prior conviction for shoplifting.

    • W’s crime was not punishable by more than one year imprisonment. W was fined and sentenced to three months’ supervision.

Opinion (Cummings):

  • State law contemplates a sentence of supervision does not constitute a conviction for evidentiary purposes.

    • Since W’s shoplifting did not result in a conviction, it may not be admitted to attack her credibility under FRE 609(a)(2).

  • Shoplifting is not a crime of dishonesty unless committed in a fraudulent or deceitful manner.

    • All shoplifting in some sense involves dishonesty. But FRE 609(a)(2) limits to crimes involving some element of misrepresentation or other indication of a propensity to lie and excluding crimes which, bad though they are, do not carry with them a tinge of falsification.

  • Affirmed.

United States v. Sanders, 964 F.2d 295 (4th Cir. 1992)


  • D appeals convictions for assault with dangerous weapon with intent to do bodily harm and for possession of contraband (shank used in assault). D and co-D, both prison inmates, were indicted for assaulting a fellow inmate.

  • Before trial, D filed motion in limine to exclude evidence of prior convictions.

    • TC granted motion in part by prohibiting questions about stabbing for which he was acquitted and an armed robbery for which his conviction was reversed, but TC declined to preclude P from cross-examining D about prior assault and contraband convictions, ruling these admissible under FRE 609(a) and FRE 404(b).

  • In first trial, jury was unable to reach verdict on assault count but convicted on possession.

  • In second trial, D testified that he acted in self-defense because V attacked him first. P cross examined, asking “You testified on direct that you are a convicted felon? You were convicted of an assault in prison? You were also convicted of contraband at that time? You were convicted because you stabbed someone?”

    • Jury convicted on assault.

Opinion (Phillips):

  • D’s convictions for assault and contraband fall under FRE 609(a)(1), and TC was therefore required to balance probative value against prejudice in assessing admissibility.

    • Although evidence of prior convictions may be thought generally probative of D’s lack of credibility, they were extremely prejudicial since they involved the same type of conduct for which D was on trial.

  • Prejudice results from admitting evidence of similar offense under FRE 609, despite limiting instructions, and often does little to impeach credibility. Evidence of similar offenses for impeachment purposes under FRE 609 should therefore be admitted sparingly if at all.

    • TC did not explicitly conduct balancing inquiry, but even if it did the court here would find prejudice outweighs probative value. TC should have refused to admit, or at most admitted the fact of conviction without revealing nature of offense.

  • TC also held crimes admissible under FRE 404(b) to show intent to commit both crimes charged. But there was no issue of intent in the case, since D was arguing self-defense.

    • D’s prior convictions could only prove the character of D in order to show action and conformity therewith, so TC erred in admitting this evidence under FRE 404(b).

  • Admission of prior convictions was not harmless error with regard to assault charge, since that case basically came down to conflicting accounts of D and V. However, it was harmless as to possession.

United States v. Oaxaca, 569 F.2d 518 (9th Cir. 1978)


  • D convicted of armed bank robbery.

  • TC overruled D’s objection and allowed P to impeach D by introducing evidence of two prior felony convictions for bank robbery and burglary.

  • D acknowledges TC has wide discretion in deciding whether to exclude evidence of prior convictions, but argues that evidence of the specific nature of prior convictions was more prejudicial than probative and should have been excluded.

Opinion (Duniway):

  • Convictions were for crimes which reflected adversely on D’s honesty and integrity. As such, they were relevant to D’s credibility. In light of D’s alibi defense, his credibility was a key issue.

  • Bank robbery conviction was not inadmissible per se, merely because the offense involved was identical to that for which he was on trial.

    • United States v. Wilson: prior convictions for attempted robbery and receiving stolen property were properly admitted against defendant charged with bank robbery, in light of their impeachment value.

    • United States v. Hatcher: defendant charged with violating Dyer Act was properly impeached with evidence of three prior Dyer Act convictions, noting “the convictions were for theft which is more indicative of credibility than, say, convictions for crimes of violence.”

  • Affirmed.

United States v. Hernandez, 106 F.3d 737 (7th Cir. 1997)


  • D convicted of kidnapping.

  • D argues TC erred in admitting evidence of prior conviction for drug possession.

    • D points out current charges were also related to drugs because the ransom money was meant to pay back a drug deal. Admission of prior similar conviction would suggest, D argues, his bad character or a willingness to commit drug-related kidnapping.

Opinion (Ripple):

  • Prior conviction occurred five years earlier, and was therefore within time period of FRE 609.

  • Similarity between two crimes requires caution on part of TC to avoid possibility of jury inferring guilt on ground not permissible under FRE 404(b).

    • But TC acted within its discretion in determining that, given the importance of credibility issue in this case, evidence of earlier conviction ought to be admitted.

  • Instruction to jury cautioned that prior conviction was to be considered solely to assess credibility of D.

  • Affirmed.

Friedman, Character Impeachment Evidence: The Asymmetrical Interaction between Personality and Situation

  • Past convictions only changes jury’s rationale if they think “If D committed robbery, I didn’t think he would lie about it; but now I know he’s committed a robbery before, I do think he would lie about it.” This is unlikely.

  • Character impeachment of criminal defendants should be eliminated and all other character impeachment evidence, including proof of prior convictions, should be subject to a discretionary rule.

b. Preserving Claims of Error

Luce v. United States, 469 U.S. 38 (1984)


  • D convicted of conspiracy and cocaine distribution.

  • D moved in limine for ruling to preclude P from using prior conviction to impeach him if he testified.

    • D did not commit to testify if the motion were granted, nor did he make proofer to court as to what his testimony would be. P opposed the motion, representing that the conviction was for a serious crime: possession of controlled substance.

  • TC ruled prior conviction fell within category of permissible impeachment evidence under FRE 609(a).

    • TC noted, however, that nature and scope of D’s trial testimony could affect the court’s specific evidentiary rulings.

      • For example, TC was prepared to hold prior conviction would be excluded if D limited testimony to fleeing from officers; but would be admitted if D took stand and denied any prior involvement with drugs.

  • D did not testify and jury returned guilty verdict.

Opinion (Burger):

  • Any possible harm flowing from TC’s in limine ruling permitting impeachment by prior convictions is wholly speculative.

    • TJ is free to change ruling.

    • When defendant does not testify, reviewing court cannot know whether P would have sought to impeach with prior conviction.

    • Defendant’s decision whether to testify seldom turns on resolution of one factor, so a reviewing court cannot assume the adverse ruling motivated decision not to testify.

    • Defendant can make a commitment to testify, but such a commitment is virtually risk free because of the difficulty of enforcing it.

  • Reviewing court would also face question of harmless error.

    • Were in limine rulings under FRE 609(a) reviewable on appeal, almost any error would result in windfall of automatic reversal. Appellate court could not find harmless an error that presumptively kept defendant from testifying.

    • Requiring defendant to testify in order to preserve FRE 609(a) claims allows reviewing court to determine impact of any erroneous impeachment, and will discourage making of such motions solely to plant reversible error in the event of a conviction.

  • To raise and preserve for review the claim of improper impeachment with a prior conviction, defendant must testify. Affirmed.

Ohler v. United States, 529 U.S. 753 (2000)


  • D charged with importation and distribution of marijuana.

  • TC granted P’s motion in limine seeking to admit evidence of prior felony conviction as impeachment evidence under FRE 609(a)(1).

  • D testified on trial and admitted on direct examination about her prior convictions.

  • CoA held D may not challenge TC’s in limine ruling on appeal.

Opinion (Rehnquist):

  • Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.

    • D argues such a waiver rule would be unfair here because it forces defendant, in order to appeal in limine ruling, to forgo tactical advantage of preemptively introducing conviction, causing jury to distrust D when P introduces it later.

    • P argues it is debatable whether jurors perceive defendant to be more credible if they introduce preemptively, and even if they did it is an unwarranted advantage because jurors don’t realize defendant only did so after failing to persuade court to exclude evidence.

  • Both parties in a trial must make decisions about tactical choices. Harm here is similarly speculative as in Luce. There is nothing unfair about holding D to his choice in accordance with normal rules of trial.

  • Defendant who preemptively introduces evidence of prior conviction on direct examination may not on appeal claim the admission of such evidence was error. Affirmed.

C. Prior Inconsistent Statements


  • As with impeachment for dishonesty, there are special rules governing impeachment for inconsistency.

  • FRE 613 rejects common-law “Rule in Queen’s Case,” which provided that before a prior, written statement could be used to impeach a witness, it had to be shown to the witness.

    • It does preserve a looser requirement that “extrinsic evidence” of a witness’ prior inconsistent statement is admissible only if the witness is given a chance to ask the witness about it.

    • FRE 613 sets forth procedural prerequisites for introducing prior inconsistent statements, but the circumstances for introducing statement for proof of content is handled in hearsay rules.

FRE 613. Witness’s Prior Statement

  • (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.

  • (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

      • (A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

      • (B) is consistent with the declarant's testimony and is offered:

        • (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

        • (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

      • (C) identifies a person as someone the declarant perceived earlier.

    • (2) An Opposing Party's Statement. The statement is offered against an opposing party and:

      • (A) was made by the party in an individual or representative capacity;

      • (B) is one the party manifested that it adopted or believed to be true;

      • (C) was made by a person whom the party authorized to make a statement on the subject;

      • (D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

      • (E) was made by the party's coconspirator during and in furtherance of the conspiracy.

  • The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Advisory Committee Note to FRE 613

  • FRE abolishes “Rule in Queen’s Case.”

  • Traditional insistence that the witness be directed to an impeaching extrinsic statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence.

  • Under principles of expressio unius, the rule does not apply to impeachment by evidence of prior inconsistent conduct.

  • The use of inconsistent statements to impeach a hearsay declaration is treated in FRE 806.

United States v. Lebel, 622 F.2d 1054 (2d Cir. 1979)


  • D convicted of conspiring to import heroin into the US.

  • D contends TC erred in disallowing evidence that W failed to identify him at the first trial.

    • W testified in first trial and identified some co-Ds, but not D; W identified D the following day.

    • At second trial, D counsel attempted to elicit information by examining Cop-W (who was present at first trial).

    • Relying on FRE 613(b), TJ refused to allow introduction of non-identification testimony unless and until W was given a chance to explain or deny the statement on the witness stand.

Opinion (Kelleher):

  • Under FRE 801(a), W’s failure to identify D was still a statement, despite being nonverbal.

    • Advisory Committee Note to FRE 613 provides that FRE 613 does not apply to prior inconsistent conduct.

  • TJ erred by requiring W to be confronted with statement immediately.

    • FRE 613 does not specify any particular order of calling witnesses, and so D should have been able to introduce evidence during exam of Cop-W.

  • Error was harmless.

    • Error is harmless only if it did not influence the jury or hard but very slight effect.

      • Impeachment testimony concerned collateral matter (W’s credibility).

      • D counsel always had opportunity to call W and confront him with non-identification.

      • W was on witness stand for 2.5 days of cross-exam and D counsel didn’t inquire about non-identification.

United States v. Dennis, 625 F.2d 782 (8th Cir. 1980)


  • D appeals convictions for extortion and obstruction of justice.

  • D objects to TC’s admission of prior inconsistent statements before grand jury by complaining-W for purposes of impeachment, due to confusion of issues and misleading jury under FRE 403.

    • W testified before grand jury that D lent money and scared him;

    • On direct exam, W denied the underlying facts and denied making or recalling the GJ statements (though inadvertently revealed his recollection by answering questions with unsolicited details).

    • On cross-exam, read excerpts of first few minutes of GJ testimony, wherein W denied having been threatened, and W admitted having made those statements and implied GJ asked leading questions.

  • TJ noted W was obviously frightened at trial and that P was surprised by W’s testimony. TJ considered GJ testimony weak or confused, so read the transcript and determined which portions could be called to jury’s attention.

Opinion (McMillian):

  • Statements made before GJ are within FRE 801(d)(1)(A) exception for statements given under oath and subject to the penalty for perjury.

    • This is true even if the statements were elicited by means of leading questions.

  • TJ has considerable discretion in determining whether testimony is “inconsistent” with prior statements.

    • Inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position.

  • TJ correctly admitted W’s prior inconsistent statements before grand jury.

    • W’s GJ testimony was not hearsay according to FRE 801(d)(1)(A), and TJ correctly determined W’s denials and inability to recall GJ testimony were “inconsistent” with trial testimony.

      • Because W denied or could not recall prior inconsistent statements, reading them to the jury was the proper method of putting them in evidence.

      • Limiting the use of prior statements to impeachment was within TJ’s sound discretion.

    • Prior inconsistent statements would have gone directly to the elements of extortionate extension of credit. The judge limited their use to impeachment and admitted only those statements he found reliable; these discretionary judgments fulfilled FRE 403’s purpose in minimizing evidentiary costs while protecting parties from undue prejudice.

United States v. Truman, 688 F.3d 129 (2d Cir. 2012)


  • Building partly-owned by D burned down. Cops arrested D’s son (“W”), who confessed that he burned building at D’s direction, and pled guilty to arson pursuant to cooperation agreement and served two years’ imprisonment.

  • D first tried in state court for arson and fraud, with W as main witness. Charges were dismissed when state prosecutors were unable to corroborate W’s testimony, as required under New York law when an accomplice testifies for prosecution.

  • W later entered cooperation agreement with federal authorities, and D was indicted on federal charged.

    • At federal trial, P called W as witness. When P asked W why he set fire and about conversations with father, W refused to answer. TC confirmed W would not answer and warned refusal would constitute breach of cooperation agreement.

    • In response, over D’s objection, P read portions of W’s testimony from state court trial, in which W confirmed father lit fires.

  • Jury found D guilty, but TJ granted new trial in part because it concluded in retrospect that W’s state court testimony was inadmissible hearsay.

Opinion (Lohier):

  • W’s testimony was not inadmissible hearsay.

    • W answered every question posed to him on cross-exam about his prior state court testimony, and therefore was “subject to cross-examination” within the meaning of FRE 801(d)(1)(A).

    • Prior testimony was “inconsistent” with refusal to answer questions about that testimony on direct examination at trial.

  • United States v. Marchand: If a witness has testified to facts before a grand jury and forgets or denies them at trial, his grand jury testimony falls squarely within FRE 801(d)(1)(A).

    • Holding in Marchand naturally extends to trial witness’ refusal to answer questions and answered in prior sworn state court testimony.

    • When a witness who testifies under oath and is subject to cross-examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under FRE 801(d)(1)(A).

      • United States v. Iglesias: Refusal to testify with more than one word admissions, evasive and rambling responses, and equivocations is inconsistent with clear and straightforward prior testimony.

      • United States v. Williams: Limited, vague and not inculpatory testimony was inconsistent with prior testimony.

  • Ruling also coheres with principal purpose of FRE 801(d)(1)(A): to protect against the turncoat witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.

  • Reversed.

United States v. Ince, 21 F.3d 576 (4th Cir. 1994)


  • D convicted for assault with dangerous weapon.

  • D arrested on suspicion of firing gun at trucks. During investigation, Cop-W took a signed, unsworn statement from W, who recounted D had admitted firing shots but no longer had gun.

  • At first trial:

    • P called W. W claimed her memory failed, and P attempted to refresh recollection with copy of signed statement. W still testified she could not recall details of conversation with D.

    • P then called Cop-W, who testified over D’s objection as to what W told him shortly after shooting.

    • Ended in deadlocked jury.

  • At second trial:

    • P again called W, who again acknowledged she had given a statement but could not recall the details of conversation with D, despite P’s attempt again to refresh recollection with statement.

    • Over D counsel’s objections, P again called Cop-W to stand, supposedly to impeach W as to her memory loss. Cop-W testified that within hours of shooting, W told him D had confessed. P also called two eyewitnesses who identified D as gunman.

    • D’s theory of case was mistaken identity, claiming some other guy fired shots.

      • In attempt to undermine defense, P reminded jurors “You heard W testify she gave a statement to Cop-W. And she told him D did it.”

    • Jury convicted.

Opinion (Murnaghan):

  • FRE 607 provides witness credibility can be attacked by any party.

    • One method of attacking credibility is showing prior inconsistent statement. Even if prior inconsistent statement would otherwise be inadmissible as hearsay, it may be admissible for limited purpose of impeaching witness.

  • In criminal trial, however, there are limits on P’s power to impeach its own witness by presenting his prior inconsistent statements.

    • United States v. Morlang: Reversed conviction because P had employed impeachment by prior inconsistent statement as a mere subterfuge to get before the jury evidence otherwise not admissible.

      • In Morlang, prosecution knew W1 would be hostile, and real purpose in calling witness was to elicit a denial so they could call another W2 to impeach W1 by testifying that W1 had said D was guilty.

  • Here, Cop-W testified D had admitted to firing the gun, a critical element of the crime for which he was being tried. It is hard to imagine any piece of evidence with a greater prejudicial impact.

    • Given the likely prejudicial impact of Cop-W’s testimony, TJ should have excluded it absent some extraordinary probative value.

  • Because evidence of W’s prior inconsistent statement was admitted solely for purposes of impeachment, its probative value must be assessed solely in terms of its impeaching effect upon W’s testimony and overall credibility.

    • Probative value of Cop-W’s testimony for impeachment purposes was nil.

      • Unlike the classic turncoat witness, W certainly had not shocked P with her loss of memory at the second trial, since she had made it plain at the first trial should would not readily testify to the alleged confession of her friend D.

    • Attacking W’s credibility had no value for impeachment purposes.

      • W’s actual in-court testimony did not affirmatively damage P’s case; she merely refused to give testimony P hoped she would. Thus, the prosecution had no need to attack her credibility.

      • As a whole, other details of W’s testimony probably strengthened P’s case.

  • Because Cop-W’s impeachment testimony was highly prejudicial and devoid of probative value as impeachment evidence, TJ should have recognized P’s tactic as an attempt to circumvent the hearsay rule and to expose the jury to otherwise inadmissible evidence of D’s alleged confession.

  • Reversed.

    United States v. Webster, 734 F.2d 1191 (7th Cir. 1984)


  • D convicted of aiding and abetting robbery.

  • P called as witness the principal robber, who had pleaded guilty.

    • W gave testimony that, if believed, would have exculpated D.

    • P introduced prior inconsistent statements that W gave to FBI, inculpating D.

    • TJ instructed jury statements to FBI could be used only for impeachment.

  • D now argues that limiting instructions was not good enough, that P should not be allowed to get inadmissible evidence before jury by calling hostile witness then using his out-of-court statements, which would otherwise be hearsay, to impeach him.

Opinion (Posner):

  • FRE 607 provides any party may attack credibility of a witness.

    • But it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence.

      • The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which FRE 607 does not contemplate or authorize.

  • But there is no bad faith here.

    • Before P called W to stand, P asked TJ to allow her to examine W outside presence of jury because P didn’t know what W would...

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