Impeaching Witnesses in Federal and Texas Criminal Cases

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

(4) Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.

(5) Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2). ***

(c) Witness’s Prior Consistent Statement.

Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.

The federal practice is significantly different from the Texas practice. Texas rule 613 requires that the witness be told of the time and place of the prior written or oral statement and the person to whom the statement was made. If the witness unequivocally admits making the statement, extrinsic evidence of the statement is not admissible. The witness must be given an opportunity to explain or deny the statement, but this opportunity can come later, such as on redirect. Although the Texas rule states: “A witness must be given the opportunity to explain or deny the prior inconsistent statement,” that requirement is not within the “Foundation Requirement” section of the rule. Instead, the “Foundation Requirement” section of the rule states only that the examining 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.” And the witness is not entitled to see a copy of a prior written statement before the impeachment; however, the opposing attorney is entitled to a copy upon request.

The federal rule, on the other hand, allows the witness to be cross-examined about a prior statement without the witness being informed of the time and place of the prior statement and the person to whom the statement was made. The federal rule also allows extrinsic evidence of a prior inconsistent statement to be admitted, even if the witness has not yet been asked about the prior statement, provided the witness is given a chance to explain or deny the statement at some point during the trial. Similar to the Texas practice, the federal rule requires opposing counsel to be shown a copy of a prior written statement upon request.

The federal approach therefore allows the impeaching party to satisfy the predicate by excusing the witness subject to recall and then admitting the prior statement into evidence. The predicate is satisfied because the proponent of the witness theoretically can later recall the witness to explain or deny the prior statement. In fact, even when the foundation is not established during the crossexamination of the witness, the federal rule gives the judge the discretion to admit the prior statement after the witness has been permanently excused “if justice so requires.” Some courts, however, have softened the impact of the federal rule by holding that the trial judge retains the discretion to exclude evidence of a prior statement when the witness is not first given the opportunity to explain or deny the statement.