Prior Inconsistent Statements In Criminal Trials- TRE 613

When I’m getting a client ready for trial I ask them to write down any notes/questions they have during testimony. One of the most common things I see written down is that a witness is lying, or that a witness told someone else a different story. Witness 1 in a criminal case says that A happened. A week before trial Witness 1 told Person 2 that A didn’t happen, that instead B happened, how can you get that prior inconsistent statement (to Person 2 that B happened) into evidence?

Let’s look at Texas Rule of Evidence 613.

To be admissible under this rule, a prior statement must be inconsistent with the one given at trial. Madry, 200 S.W.3d at 769 (citing Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002)). If a party fails to establish the required predicate, the trial court should sustain an objection to extrinsic proof of the prior inconsistent statement. Id. (citing Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).

TRE 613 has a foundation requirement before offering extrinsic proof of the inconsistent statement. That means before you can call Person 2 to the stand to testify, you have to ask Witness 1 the right questions about the inconsistent statement.

From TRE 613-

(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.

In this case, before you could call Person 2, you’d ask Witness 1 “Did you talk to Person 2 a week ago, in your garage, at 5pm? Did you tell Person 2 that B happened, and that A didn’t happen?”

If you did, and Witness 1 said “no I didn’t say that”, only THEN can you call Person 2 to the stand to contradict Witness 1. Failure to lay one of the foundations means the court can exclude the statement from Person 2, and our appellate courts will uphold your conviction.

For example, if you ask Witness 1 “Did you make a statment a week ago, in your garage, that A didn’t happen, and that B happened?” The court can keep out Person 2 since you didn’t tell Witness 1 to whom the statement was made.

Here’s some case law on laying the proper predicate for 613 evidence.

If the impeaching party fails to establish the proper predicate, the trial court should sustain an objection to extrinsic proof of the prior inconsistent statement. Madry v. State, 200 S.W.3d 766, 769 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d). “The purpose of the foundation requirements for Rule 613(a) is to put the witness on notice as to which statements may be used to impeach [his] credibility.” See Flowers v. State, 438 S.W.3d 96, 104 (Tex. App.—Texarkana 2014, pet. ref’d). An explicit reference may not be required if the record is clear the witness being impeached was aware of the person to whom the statement was made. See Flowers, 438 S.W.3d at 104.