All posts tagged: Prior Statement

Man Signing Document

The Prior Statement: If It Isn’t Signed, Is It Impeachment Material?

How should judges approach a case where a testifying witness is going to be impeached, but the impeaching document was not created or adopted by the witness?  What is the rule when the impeaching lawyer has a report by person “B” that avers what testifying witness “A” allegedly said?  The rule, as is developed below, should be to allow the impeachment if the examiner has a good faith reason to believe the statement was made. The impeachment of a witness with her/his own words, showing a change of story that establishes poor memory, unreliability, or outright mendacity, creates excitement in the courtroom.   As explained by Wigmore, “the purpose is to induce the tribunal to discard the one statement because the witness had also made another statement which cannot at the same time be true.”  3A Wigmore, Evidence § 1040 at 1048 (Chadbourn rev. 1970).  See also, United States v. Damatta-Olivera, 37 M.J. 474, 477-478 (C.M.A. 1993).  A Pennsylvania case put it more eloquently: The question of credibility sometimes depends on the slightest inclination of the …