Prior Inconsistent Statement

Cross Examination – Prior Inconsistent Statement

Prior Inconsistent Statement

One of the most used tools by a criminal defense lawyer is cross examination.  During cross examination the criminal lawyer will use prior inconsistent statements.    Prior Inconsistent statement requires the criminal lawyer to get the witness to commit, credit and confront.

During a criminal trial a good criminal lawyer will use prior inconsistent statements to show the truth or to discredit the witness.

Prior Inconsistent Statement Under Oath

Under D.C. Code § 14-102, a prior inconsistent statement of a witness is admissible for the truth of the matter asserted if the prior statement is: (1) inconsistent with the in-court testimony; and (2) given under oath, subject to the penalty of perjury, at a prior proceeding.  The prior inconsistent statement comes in as substantive evidence.  In other words, if the person on the stand has made a prior inconsistent statement and it was under oath, it comes in as substantive evidence.  Substantive evidence meaning that the statement comes in for the “truth.”

Prior Inconsistent Statement – Written or oral

If however, the prior inconsistent was not under oath, then the statement only comes to challenge or discredit the credibility of the witness.    However, if the criminal lawyer gets the witness to adopt the prior inconsistent statement, even if unsworn, it becomes part of the testimony and can be considered as substantive evidence. See Bell v. United States, 790 A.2d 523 (D.C. 2002)

Prior Inconsistent Statement (Under Oath)

1. Jones, today you testified that the suspect was not wearing a mask, right? COMMITT
2. Jones, you are sure that the suspect was not wearing a mask right COMITT
3. Lets turn to Jan__ 2015, when you testified before the grand jury, You remember testifying before the grand jury correct CREDIT
4. You were there in a room being asked questions by a prosecutor in front of citizens about this incident CREDIT
5. You were under oath correct? CREDIT
6. You knew it was important to answer the questions accurately and truthfully right CREDIT
7. And you did that – answered accurately and truthfully CREDIT
8. I am showing what is marked as Defense Exhibit 1, your grand jury testimony, and I am going to read page 5 line 10 that states “ the suspect was wearing a mask” on the day of the incident. CONFRONT
9. Did I read the question and your answer correctly, CONFRONT

Prior Inconsistent Statement (Written Statement)

1. Jones, today you testified that the suspect was not wearing a mask, right? COMMIT
2. Jones, you are sure that the suspect was not wearing a mask right COMMIT
3. Jones, you made a written statement to my investigator about 20 days after this incident, right? CREDIT
4. My investigator came to your house and wrote down your statement, and you signed each page after he took your statement.  CREDIT
5. You read each page and signed the bottom of each page correct? CREDIT
6. I am showing you what is marked as Defense Exhibit 1, the statement you gave to my investigator CONFRONT
7. Jones please follow along while I read from your statement, beginning from page 4,” the suspect was wearing a mask” – did I read your statement right? CONFRONT

Prior Inconsistent Statement (ORAL)

1.      Ms. Jones, today you testified that the suspect was not wearing a mask, right? COMMIT
2.      Ms. Jones you remember talking to my investigator about this case about 20 days after the incident?          COMMIT
3.      You and my investigator sat at your Kitchen table and you talked about incident CREDIT
4.      You knew it was important to tell my investigator the truth of what happened that day CREDIT
5.       You told the investigator what you saw and heard on that day CREDIT
6.       The investigator took down notes while you were talking CREDIT
7.       Ms. Jones you told the investigator that the suspect was wearing a mask correct? CONFRONT

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