Impeaching Witnesses in Federal and Texas Criminal Cases

Assoc. Prof. Eric Porterfield, UNT Dallas College of Law

• Defense Witness Bias Typically, bias by proof of pending charges is used to impeach witnesses for the state. “In most cases proof of a pending charge against a defense witness has no bearing on his motive to testify for an accused.” Alexander v. State, 740 S.W. 2d 749, 763 n.7 (Tex. Crim. App. 1987); see Murphy v. State, 587 S.W. 2d 718, 723 (Tex. Crim. App. 1979); Fentis v. State, 528 S.W. 2d 590, 593 (Tex. Crim. App. 1975); but see Staley v. State, 888 S.W. 2d 45, 50 (Tex. App. Tyler 1994, no pet.) (impeachment permitted where defense witness was under indictment and being prosecuted in same court as appellant); McKnight v. State, 874 S.W. 2d 745, 747-48 (Tex. App. Fort Worth 1994, no pet.) (animosity between prosecutor and witness).

B.

Inconsistent Statement

The Federal Rules of Evidence permit a witness to be impeached with his or her prior inconsistent statements.

Rule 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 a 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. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

Texas Rule of Evidence 613 is similar but has important procedural differences.

Rule 613. Witness’s Prior Statement and Bias or Interest

(a) Witness’s Prior Inconsistent Statement.

(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement whether oral or written a party must first tell the witness:

(A) the contents of the statement;

(B) the time and place of the statement; and

(C) the person to whom the witness made the statement.

(2) Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.