*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Evidence Outline - Professor Tilly - Campbell Law - Part 17

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 16 | Part 18 >

Impeachment by Contradiction
  • No federal rule
  • Statement Inconsistency can have impeachment value OR truth value
    • If offering for truth → must meet 801(d)1(A) (declarant witness inconsistent)
      • Can bring in to rebut or rehabilitate
    • If just offering for impeachment value → no oath requirement
      • Can even be hearsay statement (b/c not offering for truth)
  • Extrinsic evidence that contradicts is admissible if goes towards credibility more than just for the sake of contradicting
    • But for collateral matters (just contradicting to contradict) → can’t bring in
      • If it contradicts & relevant to the merits: Admissible
      • If it contradicts & relevant to another form of impeachment (bias, perception, etc.): Admissible
      • Merely contradicts: Inadmissible
  • Analysis for prior inconsistent statements
    1. Witness must testify to a fact (or omit a fact) under oath.
    2. The witness has made an inconsistent statement prior to trial testimony.
    3. The inconsistency is not merely collateral if proven by extrinsic evidence.
    4. THEN Admissible for impeachment value AND truth?
      • I think- this is when you need 613 & 801
        • OR Admissible for impeachment value only?
      • I think- this is when you only need 613 (unless SOPO)

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 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.

a. This subdivision does not apply to an opposing party’s statement under Rule 801(d)(2) (Admission of party opponent) (IN SUM- PARTY OPPONENTS DON’T NEED OPP TO EXPLAIN)

  1. - no notice requirement
    • But- other party may request it once you bring it up
  2. Prior inconsistent statement by extrinsic evidence not admissible unless 1) witness has opportunity to explain or deny (available for recall); and 2) cannot be on a collateral matter (but- does not apply to statement of party opponent)
    • Evidence is non-collateral as long as it says something about the witness’s credibility other than contradicting him
      • I.E. – Evidence Witness was drinking a diet coke, not dr. pepper → inadmissible (can still point out, just not bring in the extrinsic evidence)
        • But- Evidence Witness was drinking her 5th gin and tonic, not dr. pepper? → admissible
    • NC DOESN’T HAVE THIS SUBDIVISION, Extrinsic evidence of the prior statement can be admitted even though the witness was never confronted with the prior statement or provided an opportunity to explain

FRE 806. Attacking and Supporting the Declarant. 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.

  • We didn’t go over this in class but it is on the syllabus
  • Declarant of admissible hearsay statement is subject to same manner of impeachment as if the declarant was witness testifying at trial

BUT REMEMBER- 801(d)(1)(B) Prior Consistent Statements not hearsay if the declarant testifies and is subject to cross examination about the prior statement, and the statement…

  • is consistent with the declarant’s testimony and is offered:
    1. 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
      • Can be implied, but the statement must have been from before that motive arose
        • If made after? → inapplicable
    2. to rehabilitate the declarant’s credibility as a witness when attacked on another ground.
      • Timing not an issue here
      • Limited in use (I.E. – inconsistent/faulty memory)
    3. Thus, here it can be offered for truth
    4. Different standard than “character for truthfulness” being attacked which enables witness bolstering to take place after
      • This Rule is more broad
Public Policy Exclusions of Evidence

407: Subsequent Remedial Measures
408: Settlement Offers
409: Medical Expense Offers
410: Plea Negotiations
411: Liability Insurance

FRE 407: Subsequent Remedial Measures. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measure is not admissible to prove:

  • Negligence;
  • Culpable conduct;
  • A defect in a product or its design; or
  • A need for a warning or instruction.

But the court may admit this evidence for another purpose , such as impeachment or—if disputed – proving ownership, control, or feasibility of precautionary measures.

Key Points
  1. Requires a “measure”
    1. Expanding definition, key question is: had the party taken that measure before the accident at issue, the accident would have been less likely to occur
      1. I.E. – Revising harassment policy (maybe)
  2. Must be “subsequent.”
    1. Injury is timing here
      1. If change is made after sale but before injury → rule not implicated (it’s admissible)
  3. Applies equally to negligence & strict liability
  4. Third party remedial measures n/a.
    1. Only protects what THIS party did
      1. Can be waived
  5. Admissibility is purpose dependent:
    1. I.E. – Impeachment is fine
    2. If disputed: ownership, control, or feasibility.
      1. Feasibility- (economic, physical restraints, etc.)

Mary Ann has a rare genetic disorder that affects her daily life. Being born with too few chromosomes, Mary Ann has adjusted her living arrangements so that she can live close to her workplace. In May, Mary Ann rented an apartment two blocks from her work. She walked back and forth to her hourly job for six months with out incident. Mary Ann was walking to her apartment in the dark after her late shift. While walking up the apartment’s sidewalk, she suddenly tripped over something that was not visible. Due to her condition, Mary Ann fell awkwardly. When she looked down, her heel was pointing up and her toe pointing down. She suffered a severe femur fracture. Mary Ann claims the apartment was negligent as a landowner by not providing adequate lighting and by the maintenance crew leaving a hose strung across the sidewalk. • At trial, Mary Ann seeks to offer evidence that (i) the Apartment’s maintenance policy indicates that to personnel that, “All sidewalks must be kept free and clear;” and (ii) after her injury, the maintenance man at the apartment began installing much brighter light bulbs along the walkways.

Defense counsel objects to both as hearsay and subsequent remedial measures.

  1. the Apartment’s maintenance policy indicates that to personnel that, “All sidewalks must be kept free and clear;” and
    1. Admissible → this policy existed before the injury
  2. after her injury, the maintenance man at the apartment began installing much brighter light bulbs along the walkways.
    1. Inadmissible → based on these facts, rule is implicated i) But- can still inquire into how lighting was bad, just can’t ask “what do you do now?”
      • Tuer v. McDonald, Dr. said “we believed it was unsafe at the time” for practice that is in place now → that didn’t put feasibility in dispute
        • If Dr. said “it’s unsafe af” → would be in dispute, but this was true judgment call
        • Plus, P had tried to elicit reason to impeach (courts frown upon that)
Related Topics

The Charlotte lawyers at Powers Law Firm PA are dedicated to compassionate legal representation, predicated on superlative knowledge, trial skills, and conscientious advocacy.

The gift of a legal education extends beyond a fulfilling way to earn a living. Omni autem cui multum datum.

Bill Powers - Bill@CarolinaAttorneys.com

Carolina Law Blog / Awards and Certifications

Client Reviews
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together... J.R.
Bill Powers and his firm were a true blessing. If anyone is contacting an attorney, it's more than likely not from a positive life experience. If there was a rating for "bedside manner" for lawyers he'd get a 10/10 for that as well. The entire staff were helpful... K.C.
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.