Prior Testimony

Two requirements of Indiana Evidence Rule 613

• 613(a): When examining a witness about the witness’s prior statement, a party need not show it or disclose its content to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

• 613(b): 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).

Foundation for admissibility

• In order to impeach a witness with a prior inconsistent statement, a proper foundation must be laid to enable the witness to deny or explain the prior statement.

Goolsby v. State, 517 N.E.2d 54, 59 (Ind. 1987)

• To lay a foundation, the cross-examiner must first call the witness's attention to the attendant circumstances: "the time when, the place where, and the person to whom the contradictory statement is alleged to have been made."

Coleman v. State, 588 N.E.2d 1335, 1340 (Ind. Ct. App. 1992), trans. denied

• We now discuss a second, significant portion of Indiana Evidence Rule 613(b), the clause which qualifies the general inadmissibility of extrinsic evidence of a prior inconsistent statement unless "the interests of justice otherwise require." The Regional Advisory Committee Commentary states:

Indiana Rule 613 adopts in major part the text and grammatical style of [Federal Rules of Evidence] 613, and its precursor in the [Uniform Rules of Evidence] 613. As adopted, Rule 613 represents a substantial change in Indiana law as reflected in the common law. Rule 613 moves away from the formalistic, and sometimes mechanical, approach to the impeachment process, and provides greater flexibility to the practitioner and the trial court in utilizing and regulating the use of prior statements during witness testimony. 13A Ind. Prac., Indiana Evid.App. B R 613 (3d ed. 2011).

Trial courts have discretion to admit extrinsic evidence of the prior statement even if the impeachee had no opportunity to explain or deny or if the adverse party had no opportunity to question the statement. 13 Ind. Prac., Indiana Evidence § 613.202 (3d ed. 2011).

Orr v. State, 968 N.E.2d 858, 864 (Ind. Ct. App. 2012)

Extrinsic evidence

• If the witness explains or admits to making the prior inconsistent statement, impeachment has occurred, and extrinsic evidence of the inconsistent statement is inadmissible.

Roberts v. State, 712 N.E.2d 23, 32 (Ind. Ct. App. 1999), trans. denied

• In fact, it is improper to place the prior statement into evidence if the witness admits he made the statement.

Lee v. State, 526 N.E.2d 963, 966 (Ind. 1988), reh’g denied

Examples regarding admissibility

• For the purposes of Rule 613(b), a statement at trial of "I am not sure" or "I don't remember" is not necessarily inconsistent with an earlier statement that provides the answer to the question being asked. We consider the differences between Westbrook's trial testimony and her statements in the transcribed police interview to be within the ambit of the trial court's discretion to determine inconsistency.

Dunlap v. State, 761 N.E.2d 837, 845 (Ind. 2002)

• Rule 613 does not require that the prior statement be authenticated before it can be used for impeachment purposes and when the State is not moving to admit the statement into evidence at that time.

LeFlore v. State, 823 N.E.2d 1205, 1213 (Ind. Ct. App. 2005), trans. denied

• Although we have not had occasion to address impeachment on collateral matters since the adoption of the Indiana Rules of Evidence, we see no reason to depart from the well established common law rule that this is barred.

Jackson v. State, 728 N.E.2d 147, 153 (Ind. 2000)