Sunday, July 11, 2010

Impeachment and Rehabiliation Evidence in Wisconsin - Prior Consistent and Inconsistent Statements

By John DiMotto
My three week civil jury trial is now in the hands of the jury so today I would like to resume my series on Impeachment and Rehabilitation Evidence in Wisconsin by looking at the use of prior consistent statements and prior inconsistent statements.
Under our Wisconsin Rules of Evidence, hearsay is ordinarily not admissible. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [908.01(3)]. Furthermore, hearsay is not admissible except as provided by these rules [rules of evidence] or by other rules adopted by the supreme court or by statute. [908.02]. This means that just because the witness is on the stand subject to cross examination that anything the witness said at some previous time is automatically admissible. The statement must either not be hearsay or a hearsay exception must apply. Two such statements that are not hearsay are prior inconsistent statements [908.01(4)(a)1.] and prior consistent statements [908.01(4)(a)2.]. Prior inconsistent statements are used to impeach. Prior consistent statements are used to rehabilitate.
Prior inconsistent statements constitute the most often used form of impeachment. If during a hearing a witness says "A" about a subject but previously said "B" about that subject, the witnessed can be confronted with the difference in order to challenge and weaken the credibility of the witness in the eyes of the trier of fact. Rarely does a trial go by where a witness does not say something inconsistent with something the witness said at some earlier time. It is a fact of life that sometimes memories may fail for various and sundry valid reasons. It is also a fact of life that sometimes a witness may lie. It is in the context of the entire trial that the trier of fact will determine if the inconsistency is "honest" or "dishonest" and how it affects the overall credibility of the witness.
Prior consistent statements constitute the most often used form of rehabilitation. If during a hearing a witness says "A" about a subject and the cross examiner makes either an express charge or implies that the witness has recently fabricated his/her testimony or there has been recent improper influence or motive, then the witness can be rehabilitated with a prior statement that predates the fabrication/improper influence/motive. This evidence is admissible to rebut the charge of recent fabrication/improper influence/motive. What is critical is that the prior statement must predate the fabrication/improper influence/motive claim. For example, if a defendant is charged with the sexual assault of his ex-wife and during the cross examination of the ex-wife the defense brings out the fact that prior to the alleged assault she filed a motion for contempt in family court alleging he has willfully refused to pay child support, her prior account to the police, which postdated the alleged sexual assault, would not be admissible as a prior consistent statement. However, if the motion had been filed after the alleged sexual assault, the prior statement, having predated the claim of fabrication/improper influence/motive, would be admissible. The timing of the prior statement is the key to admissibility.
The significance of prior inconsistent statements and prior consistent statements is intertwined with the credibility of the witness and the weight to be given to the testimony of the witness.


  1. I have not understood the reason why if the witness says they did not remember the statement, the judge must decide whether or not this "not remembering was in good faith" before the prior inconsistent statement came into evidence, and if the "no remembering" was in good faith, the prior inconsistent statement could not come into evidence. Any explanation would be appreciated.

  2. The judge gets to decide if he believes the witness is lying.