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Using Inconsistent Prior Statements to Discredit a Witness

Discrediting a witness with a prior inconsistent statement is an important tool in defending a criminal case. Impeachment however, must be done correctly or the defense may not be allowed to put the prior inconsistent statement before the jury.

The case of Barnett v. State, 35 Fla. L. Weekly D2269b (Fla. 3d DCA October 13, 2010) is an example of a conviction that might not have occurred had the defense been able to use a contradictory statement of the alleged victim.

The defendant was convicted of lewd and lascivious molestation in violation of Fla. Stat. § 800.04(5)(a),(b). The information charged unlawfully and intentionally touching the breasts, genitals, genital area, or buttocks, or the clothing covering those areas of a minor less than 12 years of age in a lewd and lascivious manner.

The defense sought to establish that the child recanted her allegation of molestation by a statement to the mother. The minor testified and was subject to cross-examination. On cross-examination the minor was not questioned concerning the prior statement to the mother in which the child recanted her claims. The defense waited until cross examination of the mother and then attempted to elicit that the child recanted her story. The state objected on the grounds that the question called for hearsay and that no foundation had been laid for impeachment of an inconsistent statement. The objection was sustained and the appellate court agreed.

This is an example of the importance of counsel understanding the necessary steps to lay a predicate for impeachment by prior inconsistent statement. This is done by identifying for the witness, the occasion the statement was made and who the statement was made to.

Fla. R. Evid. 90.608(1) recognizes that one may impeach a witness by introducing statements of the witness which are inconsistent with the witness' present testimony. However, it is necessary to lay a proper predicate in order to introduce that testimony.

The predicate necessary for impeachment is not new. Hancock v. McDonald, 148 So.2d 56 (Fla. 1st DCA 1963); Jennings v. State, 512 So.2d 169 (Fla. 1987) andPearce v. State, 880 So.2d 561, 569-70 (Fla. 2004).

Before a witness can be impeached with a prior inconsistent statement, counsel must call the witness' attention to the time, place and person to whom the statement was allegedly made. Rowe v. State, 174 So. 820, 821 (1937).

In Barnett, the proper method would have been to cross-examine the juvenile by asking if the juvenile had a discussion with her mother at the approximate time and location and that during that discussion whether the juvenile made statements to the mother which amounted to recanting her allegations against the defendant.

If the witness admits the statement, the impeachment is complete at that point. If the witness does not admit the prior inconsistent statement or claims not to remember, then counsel may prove the prior inconsistent statement through extrinsic evidence. For example, in Barnett, by questioning the mother.

Unfortunately, these steps were not taken and therefore the testimony of the alleged victim's mother concerning the statement was in fact hearsay and since no predicate was laid with the alleged victim through questioning to whether she made the statement, impeachment was not proper.

Extrinsic evidence to prove impeachment if the witness denies making an earlier inconsistent statement or claims lack of memory is not permitted if the matter is collateral. In the Barnett case however, the witness' recanting allegations of the crime was clearly not collateral and therefore with the proper predicate the prior inconsistent statements would have been and admissible.

It must be remembered that the prior inconsistent statement in the Barnett case would not have been substantive evidence even if a proper predicate was laid and the matter put before the jury. Rather the inconsistent statement is admitted solely for the purpose of impeachment to question whether the witness told the truth on the point at issue.

There are certain circumstances when a prior inconsistent statement is admissible as substantive evidence as seen in Fla. R. Evid. 90.801(1)(c). This involves a prior inconsistent statement given by the witness at a prior trial or hearing which was subject to cross-examination.

All attorneys recognize that a prior inconsistent statement on a material issue is one of the strongest forms of impeachment. Counsel must be aware of the proper rules of evidence in order to ensure that such important evidence is brought before the jury.