Employing Inconsistent Statements For Impeachment and As Substant

Michigan Law Review
Volume 75 Issue 8
1977
Employing Inconsistent Statements for Impeachment and as

Substantive Evidence: A Critical Review and Proposed
Amendments of Federal Rules of Evidence 801 ( d ) ( 1 ) ( A ), 613,
and 607
Michael H. Graham
University of Illinois
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Recommended Citation
Michael H. Graham, Employing Inconsistent Statements for Impeachment and as Substantive Evidence: A
Critical Review and Proposed Amendments of Federal Rules of Evidence 801 ( d ) ( 1 ) ( A ), 613, and 607,
75 MICH. L. REV. 1565 (1977).
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EMPLOYING INCONSISTENT STATEMENTS FOR
IMPEACHMENT AND AS SUBSTANTIVE EVIDENCE:
A CRITICAL REVIEW AND PROPOSED AMEND-
MENTS OF FEDERAL RULES OF EVIDENCE
801(d)(l)(A), 613, and 607
Michael H. Graham*
I. INTRODUCTION
The proposed Federal Rules of Evidence, 1 which were drafted

by the Advisory Committee and approved by the Supreme Court, 2
dealt in a comprehensive manner with. a party's impeachment of his
own or his opponent's witness by means of prior inconsistent state-
ments. Proposed rule 80l(d)(l)(A),3 advocating a significant de-
parture from the common law, provided that all prior statements in-
consistent with the testimony given by a witness during trial were
not hearsay. In proposed rule 607 4 the Advisory Committee and
the Supreme Court rejected the traditional reasons offered in support
of the voucher rule's restrictions on a party's impeachment of his own
witness, providing instead that "the credibility of any witness may
be attacked by any party, including the party calling him." Thus,
the proposed rules eliminated the question whether prior incon-
sistent statements accompanied by a limiting instruction are admis-
sible only for purposes of impeachment; henceforth, courts were to
admit all such statements as substantive evidence. Complementing
proposed rules 801(d)(l)(A) and 607, proposed rule 613 5 signifi-
cantly eased the traditional foundation requirements imposed by the
common law as prerequisites to the introduction of extrinsic evidence
of a prior inconsistent statement.
The Advisory Committee's comprehensive scheme, however,
\
* Professor of Law, University of Illinois. B.S.E. 1964, University of Pennsyl-

vania; J.D. 1967, Columbia University.-Ed.
1. Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183
(1972).
2. 56 F.R.D. at 184.
3. 56 F.R.D. at 293.
4. 56 F.R.D. at 266.
5. 56 F.R.D. at 278.
1565
1566 Michigan Law Review [Vol. 75: 1565
failed to withstand congressional scrutiny. Although proposed rules

607 and 613 were adopted without substantive change, Congress,
motivated by concerns over the reliability of prior inconsistent state-
ments, amended proposed rule 801(d)(l)(A) to provide that only
prior inconsistent statements "given under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding, or in a deposition"
were admissible as substantive evidence. 6 Thus, under rule 801(d)
( 1) (A) of the Federal Rules of Evidence as enacted, a party may
introduce a prior inconsistent statement as substantive evidence only
if it was originally made in testimonial form. That denial of substan-
tive admissibility for most prior inconsistent statements raises two
serious concerns. First, rule 80l(d)(l)(A) as enacted denies sub-
stantive admissibility to some prior inconsistent statements for which
there are strong guarantees of reliability. Second, the wisdom of
rules 607 and 613 appears questionable in light of Congress' con-
cern about the reliability of those prior inconsistent statements no
longer substantively admissible pursuant to rule 80l(d)(l)(A).
Under prior federal practice the voucher rule restricting im-
peachment of a party's own witness and the foundation require-
ment for the introduction of extrinsic evidence of a witness' prior
inconsistent statement operated to curtail potential jury misuse
of prior inconsistent statements admitted solely for purposes of
impeachment. 7 Although the Advisory Committee's proposed rules
607 and 613 altered both these aspects of prior federal practice, no
consequent abuse of prior inconsistent statements was threatened
because all such statements were to be admissible as substantive
evidence. Now, however, with Congress' amendment to proposed
rule 801(d)(l)(A), the possibility of abuse arises because the limi-
tations Congress engrafted upon proposed rule 801 ( d) ( 1)(A) were
not accompanied by corresponding amendments to proposed rules
607 and 613.
A further issue raised by the enactment of rule 801(d)(l)(A)
is whether Congress was not unduly cautious in placing restrictions
on the rule as initially proposed by the Advisory Committee. Al-
though Congress' concern over the general trustworthiness of prior
inconsistent statements is clearly justifiable, there remains the ques-
tion whether, in the interest of guaranteeing the reliability of prior
inconsistent statements, it is necessary to limit substantive admissibil-
ity only to those statements made in a formal setting.
6. FED. R. Evm. 801(d)(l)(A).

7. See text at notes 129 & 134 supra.
August 1977] Employing Inconsistent Statements 1567
The Federal Rules of Evidence have already been employed as
a model for the new Uniform Rules of Evidence8 and for several
state codifications, 9 and yet apparently none of the drafters of these
schemes gave serious consideration either to expanding admissibility
under 80l(d)(l)(A) selectively or to controlling potential abuse
regarding the use of prior inconsistent statements not substantively
admissible. This Article, after exploring the history, development,
and rationale of rules 80l(d)(l)(A), 613, and 607, proposes that
rules 613 and 607 be amended to bring their provisions into con-
formity with rule 801 (d) (1) (A). In the same vein, the Article also
suggests that rule 801(d)(l)(A) unduly restricts the types of prior
inconsistent statements substantively admissible thereunder. Ac-
cordingly, it proposes an amendment to rule 801(d)(l)(A) that
expands the substantive admissibility of prior inconsistent statements
while seeking to preserve the guarantees of reliability that Con-
gress has seen fit to impose.
8. Uniform Rules of Evidence, in HANDBOOK OF TIIE NATIONAL CONFERENCE OF

COMMISSIONERS ON UNIFORM STATE LAws 912 (1974).
9. Several states have adopted evidence rules modeled after the Federal Rules
of Evidence discussed in this Article. Rule 801(d)(l)(A) is the basis for evidence
rules in eight states: Arkansas [ARK. STAT. ANN. § 28-1001 (Noncum. Supp. 1976),
codifying ARK. UNIF. R. Evm. 801 (state adopted all Uniform Rules)]; Maine [ME. R.
Evrn. 801]; Minnesota [MINN. R. EVID. 801 (state added qualification to 801(d)(l)
(C) and added new provision, 801(d)(l) (D), to define a "present sense impression"
as not hearsay)]; Nebraska [NEB. REV. STAT. § 27-801 (1975), codifying NEB. EVID.
R. 801]; Nevada [NEV. REV. STAT. § 51-035 (1973) (adopted the Preliminary Draft
version of rule 801, which allows substantive use of all prior inconsistent statements
of a witness)]; New Mexico [N.M. STAT. ANN. § 20-4-801 (Supp. 1975), codifying
N.M.R. Evm. 801 (adopted the Proposed Draft as submitted to Congress, which
allows substantive use of all prior inconsistent statements)]; and Wisconsin [WIS.
STAT. § 908.01 (1975) (adopted the Proposed Draft)].
Eight states have adopted rule 607 without change: Arkansas [ARK. STAT. ANN.
§ 28-1001 (Noncum. Supp. 1976), codifying ARK. UNIF. R. Evm. 607]; Maine [ME-
R. Evm. 607]; Minnesota [MINN. R. Evm. 607]; Nebraska [NEB. REV. STAT. § 27-607
(1975), codifying NEB. EVID. R. 607]; Nevada [NEV. REV. STAT. § 50.015 (1975)];
New Mexico [N.M. STAT. ANN. § 20-4-607 (Supp. 1975), codifying N.M.R. EVID.
607]; and Wisconsin [WIS. STAT.§ 906.07 (1975)].
Arkansas [ARK. STAT. ANN. § 28-1001 (Noncum. Supp. 1976), codifying ARK.
UNIF. R. EvID. 613], Nebraska [NEB. REV. STAT. § 27-613 (1975), codifying Neb.
EVID. R. 613] and New Mexico [N.M. STAT. ANN. § 20-4-613 (Supp. 1975), codifying
N.M.R. EVID. 613] adopted rule 613 without change. Wisconsin [WIS. STAT. §
906.13 (1975)] has also adopted rule 613, but it added a proviso that extrinsic
evidence may be excluded if there is no prior foundation and the witness is no
longer available. Maine adopted only 613(a) in order to conform to its prior prac-
tice of not ever requiring counsel to confront a witness with his prior statement. See
Advisors' Note, ME. R. EVID. 613. Nevada enacted the Preliminary Draft version
of rule 613. NEV. REV. STAT. § 50.135 (1975). Minnesota recently adopted rule
613 with the caveat that, before the extrinsic evidence of the prior inconsistent state-
ment can be admissible, the witness must have a prior opportunity to explain or deny
the statement.
Several other states are considering adopting codes based on the Federal Rules of
Evidence. Those states include Colorado, Florida, Illinois, Michigan, Montana, North
Dakota, Ohio, and Vermont.
1568 Michigan Law Review [Vol. 75:1565
II. RULE 80l(d)(l)(A)-THE BATTLE OVER

SUBSTANTIVE ADMISSIBILITY
A. The Orthodox Rule

The wisdom of admitting as substantive evidence a prior incon-
sistent statement of an in-court witness available for cross-examina-
tion has been thoroughly debated in the literature. 10 Although it
is unnecessary to rehash this dialogue in detail, a short summary of
the rival contentions is useful to place the relevant issues in perspec-
tive.
The hearsay rule as developed in the common law excluded use
of a witness' prior out-of-court statement to prove the truth of the
matter stated. This denial of substantive effect to a witness' prior
inconsistent statements, referred to hereinafter as the Orthodox
Rule, was based on a threefold rationale of lack of trustworthiness:
(1) the statement was not made under oath, (2) the trier of fact
did not observe the declarant's demeanor at the time the statement
was made, and (3) the declarant was not subject to contemporane-
ous cross-examination before the trier of fact by the party against
whom the statement is being offered. 11 Although it is certainly cor-
rect that a prior statement-unless made at an earlier trial, hearing,
or deposition-will rarely have been made under oath, critics of the
orthodox view have downplayed the value of the oath and of the
penalties for perjury as safeguards of trustworthiness; of all the
recognized exceptions to the hearsay rule, only the prior testimony
exception requires that the statement have been made under oath. 12
10. See generally McCoRMICK'S HANDBOOK OF THE LAW OF EVIDENCE § 251 (2d
ed. E. Cleary 1972) [hereinafter cited as McCORMICK]; 4 J. WEINSTEIN & M. BERGER,
WEINSTEIN'S EVIDENCE ,r 801(d)(l)[Ol] (1976) [hereinafter cited as WEINSTEIN];
3A J. WIGMORE, EVIDENCE §§ 1018 & 998 n.3 (J. Chadbourn ed. 1970); Falknor,
The Hearsay Rule and Its Exceptions, 2 U.C.L.A. L. REV. 43 (1954); McCormick,
The Turncoat Witness: Previous Statements as Substantive Evidence, 25 TEXAS L.
REV. 573 (1947); Morgan, Hearsay Dangers and the Application of the Hearsay
Concept, 62 HARV. L. REV. 177 (1948); Reutlinger, Prior Inconsistent Stateme11ts:
Presently Inconsistent Doctrine, 26 HASTINGS L.J. 361 (1974); Silbert, Federal Rule
of Evidence 80l(dXIXA), 49 TEMP. L.Q. 880 (1976).
11. See 6 J. WIGMORE, supra note 10, § 1362; McCORMICK, supra note 10, § 245.
12. C. McCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 39 (1954) [herein-
after cited as EVIDENCE]. Compare FED. R. EVID. 804(b)(1) (former testimony ad-
missible as hearsay exception if given under oath) with FED. R. EVID. 801(d) (defin•
ing certain prior statements by witness and certain admissions by party-opponent as
"not hearsay") and FED. R. EVID. 803 (certain declarations admissible as hearsay ex-
ceptions regardless of whether declarant is available to testify or whether they were
given under oath) and FED. R. EVID. 804(b)(2)-804(b)(5) (certain declarations ad-
missible as hearsay exceptions if declarant is unavailable regardless of whether they
were given under oath).
Critics of the Orthodox Rule have also rejected the justification be-
hind the traditional requirement that the trier of fact observe the wit-
ness' demeanor when he makes the statement. As Judge Learned
Hand stated in dismissing the requirement:
If, from all that the jury see of the witness, they conclude that
what he says now is not the truth, but what he said before, they are
none the less deciding from what they see and hear of that person
and in court. 13
The core of the dispute over substantive admissibility of a
witness' prior inconsistent statements concerns the final challenge to
the trustworthiness of such statements-lack of contemporaneous
cross-examination. The critical question may be stated as follows:
What is the value of cross-examination that is not conducted contem-
poraneously with the making of the statement whose truth is in ques-
tion before the same trier of fact that must determine whether the
statement is truthful? The argument that noncontemporaneous
cross-examination cannot serve the function performed by cross-
examination conducted at the time of the witness' statement is illus-
trated by the following example. W, testifying on direct examina-
tion for the plaintiff, states at trial that plaintiff had a green light
when the cars entered the intersection. On cross-examination, de-
fense counsel forces W to admit that he feels sorry for the badly
injured plaintiff and that in fact plaintiff's traffic light was red. In
this situation, cross-examination by defense counsel has fulfilled its
purpose. The jury first saw and heard the witness testify to one fact
and then saw and heard him recant, thus entirely destroying the
value of his initial testimony. Now assume that W had recanted
prior to trial. If W's prior statement that the light was green for
the plaintiff were to be introduced at trial, the scenario would be
as follows: The defendant calls W, who testifies that the plaintiff
ran a red light. On cross-examination, the plaintiff's counsel con-
fronts W with his prior statement to a police officer that the light
was green for the plaintiff. W admits making the statement and ex-
plains upon redirect examination by defense counsel that he made
the prior statement only because he felt sorry for the badly injured
plaintiff.
In each of the above situations, the jury faces a choice between
two statements and has before it the witness' explanation for their
inconsistency. The crucial difference according to the proponents
of the Orthodox Rule is that in the first case the jury has seen the
13. Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925).
witness break down as a result of adversarial confrontation. In the

second situation, although the jury hears W's explanation of his prior
statement, the explanation is generally made during examination by
the party who is depending on W's present testimony (i.e., on re-
direct), a party who obviously desires to help W give a believable
explanation. Accordingly, proponents of the Orthodox Rule argue
against the usefulness of subsequent examination designed to rebuild
a witness' credibility:
Cross-examination presupposes a witness who affirms a thing being
examined by a lawyer who would have him deny it, or a witness who
denies a thing being examined by a lawyer who would have him af-
firm it. Cross-examination is in its essence an adversary proceeding.
The extent to which the cross-examiner is able to shake the witness,
or induce him to equivocate is the very measure of the cross-
examiner's success.14
Under this view, the jury in the first case finds that the defendant's
adversarial, destructive cross-examination aids it in determining the
truth of the testimony, but in the second case the jury sees only de-
fense counsel attempting to rehabilitate an impeached witness-a
less persuasive, less dramatic, and far less clear-cut event. 15
In response, opponents of the Orthodox Rule have contended
that this difference is meaningless and that cross-examination need
not be contemporaneous with the making of the statement to be
effective:
The line of questioning in each instance is virtually identical, except
that in the contemporaneous version the witness recants his prior ver-
sion at the conclusion of the cross-examination while in the subse-
quent cross-examination he has already done so. The only difference
lies in the eye of the cross-examiner, who is in the latter instance de-
prived of a first triumphal flourish. 16
Moreover, it is argued that the Orthodox Rule assumes that the
14. Ruhala v. Roby, 379 Mich. 102, 124, 150 N.W.2d 146, 156 (1967).
15. The difference becomes more pronounced in cases in which the witness pro-
fesses a lack of memory about whether he made the prior statement or about its sub-
ject matter. The effectiveness of rehabilitative redirect in these cases varies inversely
with the extent of the witness' memory loss. Probably at some point the inability
of the criminal defense attorney to conduct effective redirect examination of a wit-
ness forgetful of the substance of the alleged inconsistent statement would preclude
substantive admission of the prior statement as violative of the sixth amendment
right to confrontation. See California v. Green, 399 U.S. 149, 168-69 (1970); 4
WEINSTEIN, supra note 10, 1m 801(d)(l)(A)[04], 801(d)(l)(A)[06], 80l(d)(l)(A)
[07].
16. A letter to the Chairman of the Senate Judiciary Committee from the Stand-
ing Committee on Rules of Practice and Procedure and the Advisory Committee on
Rules of Evidence of the Judicial Conference of the United States (May 22, 1974),
quoted in 4 WEINSTEIN, supra note 10, at 801-6.
cross-examiner at trial will be successful in "breaking down" the wit-

ness a la Perry Mason, which obviously is a rare event. Subsequent
examination (redirect) relating to a prior inconsistent statement, ac-
cording to this argument, will more often have a significant impact
upon the jury. As stated by the Supreme Court in California v.
Green: 17
The defendant's task in cross-examination is, of course, no longer
identical to the task that he would have faced if the witness had not
changed his story and hence had to be examined as a "hostile" wit-
ness giving evidence for the prosecution. This difference, however,
far from lessening, may actually enhance the defendant's ability to
attack the prior statement. For the witness, favorable to the defen-
dant, should be more than willing to give the usual suggested explana-
tions for the inaccuracy of his prior statement, such as faulty percep-
tion or undue haste in recounting the event. Under such circumstan-
ces, the defendant is not likely to be hampered in effectively attacking
the prior statement, solely because his attack comes later in time.
Critics of the Orthodox Rule have not rested with a defense of
the merits of subsequent cross-examination. They have also at-
tacked the basic rationale of the Orthodox Rule, asserting that the
primary reason for disallowing substantive use of a witness' prior in-
consistent statement as hearsay-i.e., that the declarant was not then
subject to cross-examination-simply ignores the realities of the situ-
ation. By hypothesis, the witness is present before the trier of fact,
is under oath, and is subject to cross-examination. The witness can
deny making the prior statement or explain the circumstances sur-
rounding the utterance, and his demeanor may be observed through-
out.
For essentially these reasons, Wigmore concluded that courts
should grant substantive value to prior inconsistent statements of in-
court witnesses. 18 McCormick, supporting Wigmore's position, ar-
gued that prior statements are even more trustworthy than later in-
court statements because they are made closer in time to the event
they describe. 19 This argument, which draws on the obvious prin-
ciple that memory fades with time, suggests as well that there is less
likelihood that the earlier statement is the result of corruption, false
1
17. 399 U.S. 149, 160 (19 70). See also 4 WEINSTEIN, supra note 10, at 801-6:
"[N]ot only does the witness ••• recant his earlier story, but he also explains, in
not unplausible fashion, the reasons why he did so. This is a cross-examination suc-
cessful beyond the dreams of avarice." With respect to the likelihood of successfully
"breaking down" the witness, see Dutton v. Evans, 400 U.S. 74, 89 (1970).
18. 3A J. WIGMORE, supra note 10, § 1018. See also Maguire, The Hearsay Sys-
tem: Around and Through the Thicket, 14 VAND. L. REV. 741, 767-68 (1961).
19. EVIDENCE, supra note 12, § 39.
suggestions, intimidation, or appeals to sympathy or prejudice.

McCormick also contended that substantive admissibility was needed
to protect parties from the "turncoat" witness, who by changing his
story deprives the party calling him of essential evidence. 20
As the final string to their bow, critics of the Orthodox Rule have
argued that, where the rule is followed, prior inconsistent statements
are still allowed into evidence, accompanied by an instruction to the
jury to consider the prior inconsistent statement as bearing solely
upon the credibility of the witness' in-court testimony and specifically
providing that the statement cannot be treated as evidence of the
facts asserted therein. 21 Professor Morgan has called this practice
a pious fraud 22 and along with other scholars23 has argued that a
jury faces an impossible task when asked to accept a statement as
20. McCormick, 25 TExAs L. REv. 573, supra note 10.

21. See, e.g., the form suggested in -1 E. DEVITT & c. BLACKMAR, FEDERAL JURY
PRACTICE AND INSTRUCTIONS§ 17.16 (3d ed. 1977):
Effect of Prior Inconsistent Statements or Conduct-By a Witness Not a Party
Evidence that at some other time a witness, . . . has said or done something,
or has failed to say or do something, which is inconsistent with the witness' testi-
mony at the trial, may be considered by the jury for the sole purpose of judging
the credibility of the witness; but may never be considered as evidence or proof
of the truth of any such statement.
Federal Rule of Evidence 105 directs the trial judge to give a limiting instruction
to the jury upon request whenever evidence is admissible for one purpose, such as
impeachment, but not another. Read literally, the rule suggests that the failure to
give a limiting instruction can never be reversible error unless counsel had requested
the instruction at trial. Two recent Fifth Circuit cases have served notice, however,
that rule 105 will not be so read. The court in United States v. Garcia, 530 F.2d
650 (5th Cir. 1976), after reviewing earlier cases, reaffirmed the "plain error" stan-
dard under which the failure of the court sua sponte to instruct the jury on the proper
use of a prior inconsistent statement required reversal of any criminal conviction in
which the error was not clearly harmless. As the Fifth Circuit reiterated several
months later in United States v. Sisto, 534 F.2d 616 (5th Cir. 1976):
From several prior opinions, Judge Coleman in Garcia distilled the following
general rule, applicable both before and after the eftective date of the new Fed-
eral Rules of Evidence: "Plain error appears only when the impeaching testi-
mony is extremely damaging, the need for the instruction is obvious, and the fail-
ure to give it is so prejudicial as to affect the substantial rights of the accused."
534 F.2d at 723 (quoting Garcia, 530 F.2d at 656) (emphasis added). Other circuits
followed similar standards in criminal cases before 1975, and there is no reason to
suspect that rule 105 will provoke any change. See, e.g., United States v. Lipscomb,
425 F.2d 226 (6th Cir. 1970); Benson v. United States, 402 F.2d 516 (9th Cir.
1968); Jones v. United States, 385 F.2d 296 (D.C. Cir. 1967); Newman v. United
States, 331 F.2d 968 (8th Cir. 1964).
22. Morgan, supra note 10, at 193.
23. See, e.g., EVIDENCE, supra note 12, § 39; M. LADD & R. CARLSON, CASES AND
MATERIALS ON EVIDENCE 820 (1972). See also United States v. Cunningham, 446
F.2d 194, 200 (2d Cir.), cert. denied, 404 U.S. 950 (1971); Isaac v. United States,
431 F.2d 11, 15-16 (9th Cir. 1970); United States v. Duff, 332 F.2d 702, 707 (6th
Cir. 1964) ("jury could hardly help considering the content of the statement as sub-
stantive evidence"); Young v. United States, 97 F.2d 200 (5th Cir. 1938). Cf. Bru-
ton v. United States, 391 U.S. 123, 126 (1968) ("[b]ecause of the substantial risk
that the jury, despite instructions to the contrary, looked to the incriminating extra-
August 1977] Employing Inconsistent Statements 157:3
bearing on a witness' credibility while ignoring its substantive content.

In summary, the opponents of the Orthodox Rule argue that, so
long as the witness is in court and subject to cross-examination, the
hearsay problems are eliminated and prior inconsistent statements of
the witness should be substantively admissible. They contend further
that substantive admissibility is desirable because the proximity of
prior statements to the event in question makes them more trustworthy
than in-court testimony and because substantive admissibility pro-
tects parties from turncoat witnesses. Finally, they urge that the
Orthodox Rule does not accomplish its primary purpose because
juries are unable or unwilling to distinguish between statements ad-
mitted substantively and those admitted solely as evidence of the wit-
ness' credibility.
Supporters of the Orthodox Rule have also devised arguments
to buttress their position. Of course, one enduring argument is that
a witness' prior inconsistent statement should be denied substantive
effect because it is technically hearsay, in that the witness was not
under oath and was not subject to cross-examination before the trier
of fact when the statement was made. 24 They also contend that
prior inconsistent statements are often biased as a result of subtle
influence, coercion, or deceit on the part of the person eliciting the
statement, who is often an investigator or police officer. 25 Carrying
judicial statements in determining petitioner's guilt, admission of Evans' confession

in this joint trial violated petitioner's right of cross-examination"); Shepard v. United
States, 290 U.S. 96, 104 (1933) (Cardozo, J.) (evidence inadmissible and gravely
prejudicial for one purpose but admissible and not objectionable for another should
be excluded from consideration by jury since the task of ignoring the evidence for
the one aspect while considering it for the other is too subtle for the ordinary mind).
But see United States v. Lemon, 497 F.2d 854, 858 (10th Cir. 1974) ("presumed that
jurors will be true to their oath and that they will conscientiously observe the
instructions and admonitions of the Court").
24. See McCORMICK, supra note 10, § 251. These particular arguments against
substantive admissibility of prior inconsistent statements are not of constitutional
dimension. The California Supreme Court decided that substantive use violated
the sixth amendment right to confront witnesses in People v. Johnson, 68 Cal.
2d 646, 441 P.2d 111, 68 Cal. Rptr. 599 (1968), cert. denied, 393 U.S. 1051
(1969), and in People v. Green, 70 Cal. 2d 654, 451 P.2d 422, 75 Cal. Rptr. 782
( 1969). The United States Supreme Court, however, rejected this contention when
it reversed Green. California v. Green, 399 U.S. 149 (1970). In Nelson v. O'Neil,
402 U.S. 622 (1971), the Court went on to hold that whether the witness admits or
denies making the prior statement is constitutionally irrelevant.
25. See Hearings on H.R. 5464 Before the Senate Comm. on the Judiciary, 93d
Cong., 2d Sess. 302 (1974) (statement of Herbert Semmel):
The problems of inaccurate repetition, ambiguity and incompleteness of out-
of-court statements may be found in both written and oral statements, although
the problem is more acute in oral statements. But written statements are also
subject to distortion. We are all familiar with the way a skilled investigator,
this argument one step further, the rule's supporters assert that prior
inconsistent statements may be completely fabricated, 26 a danger
that can be eliminated only by the requirement that testimony not
be accepted substantively unless it is given in court, under oath, and
subject to cross-examination. Implicitly rejected by this argument
is the view that examination of either the declarant when he testi-
fies in court or the witness presenting extrinsic proof of the prior
inconsistent statement will successfully expose a fabrication or bring
to light any illegitimate influence that acted to color the declarant's
prior statement. Proponents of the Orthodox Rule also argue that
no need for a change exists, since present hearsay exceptions permit
substantive admission of prior inconsistent statements that are in fact
sufficiently trustworthy. 27 Finally, they point out that prior incon-
sistent statements may be used to impeach-and thus to ·neutralize-
an opponent's witness. If a party's own witness unfavorably changes
his story prior to trial, the party may simply refrain from calling the
witness. If the party calling the witness is surprised and affirmatively
damaged by the witness' testimony, he may impeach the witness with
his prior inconsistent statement. 28 Confrontation with the inconsis-
tent statement coupled with fear of perjury prosecution are asserted
to be sufficient to encourage the witness to adopt the prior statement
if he actually believes it to be true. 29
be he ·a lawyer, police officer, insurance claim agent, or private detective, can
listen to a potential witness and then prepare a statement for signature by the
witness which reflects the interest of the investigator's client or agency. Adverse
details are omitted; subtle changes of emphasis are made. It is regrettable but
true that some lawyers will distort the truth to win a case and that some police
officers will do the same to "solve" a crime, particularly one which has aroused
the ·.public interest or caused public controversy. Or the police officer may be
seeking to put away a "dangerous criminal" who the officer ''knows" is guilty
but against whom evidence is lacking.
See also Goings v. United States, 377 F.2d 753, 762 n.13 (8th Cir. 1967):
Today the art· of statement taking is a recognized science. Inbau & Reid,
Criminal Interrogation & Confessions (1962); Schwartz, Trial of Automobile
Accident Cases, Vol. I, § 4, pp. 5, 6, "Requisites of Witnesses Statements", 3rd
ed. (1965); Smithson, Insurance Law Journal, June, 1958, "Liability Claims and
Litigation", pp. 375-403; Schweitzer, Cyclopedia of Trial Practice, Vol. I, § 30,
p. 58, "Securing Statements from Witnesses" (1954); Donaldson Casualty
Claims Practice, "Richard D. Erwin Series in Risk & Insurance" (1964), pp.
481-500; Averbach, Handling Accident Cases, Vol. 2, p. 269, (1958). Whether
the problem be one of fault in communication to a good faith interrogator or
culpable strategy of the ·examiner, is immaterial. The fact remains, most ex
parte statements reflect the subjective interest and attitude of the examiner a!I
well.
26. See ILLINOIS SUPREME CoURT COMMITTEE ON EVIDENCE, MAJORl1Y REPORT
ON THE USE OF PRIOR INCONSISTENT STATEMENTS OF WITNESSES AS SUBSTANTIVE
PROOF 16 (1971) [hereinafter cited as MAJORl1Y REPORT].
27. Marshall, An Analysis, in MAJORl1Y REPORT, supra note 26, at 15 [herein-
after cited as Marshall].
28. See text at note 135 infra.
29. MAJORITY REPORT, supra note 26, at 8.
B. Advisory Committee Proposal and Congressional

Reaction
In the face of the controversy over the substantive admissibility
of prior inconsistent statements, Congress enacted rule 80l(d)(l)(A),
which reads as follows:
(d) Statements which are not hearsay. A statement is not hearsay
if-
( 1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concern-
ing the statement, and the statement is (A) inconsistent
with his testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition. 30
Rule 801(d)(l)(A) emerged from Congress only after a seesaw
battle that evidenced deep concern over the reliability and trust-
worthiness of prior inconsistent statements. As drafted by the Advi-
sory Committee and submitted by the Supreme Court, rule
801(d)(l)(A) provided for substantive use of all prior inconsistent
statements:
if:
(1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concern-
ing the statement, and the statement is (A) inconsistent
with his testimony. 31
The Advisory Committee, following the path of the California Law
Revision Commission,32 concluded that the arguments in favor of
treating prior inconsistent statements as -hearsay did not withstand
analysis. Specifically, the Advisory Committee stated in its Note
that the absence of an oath, cross-examination, and observation of
demeanor at the time that the prior statement was made could each
be adequately supplied by later examination at trial. 33
The version of rule 80l(d)(l)(A) enacted into law, however,
shows that the Advisory Committee failed to persuade Congress that
30. FED. R. Evm. 80l(d)(l)(A).

31. Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183,
293 (1972). For earlier drafts of this proposed rule, see Revised Draft of Proposed
Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315, 413
(1971), and Preliminary Draft of Proposed Rules of Evidence for the United States
District Courts and Magistrates, 46 F.R.D. 161, 331 (1969).
32. 56 F.R.D. at 296. See CAL. Evm. CoDE § 1235 (West 1966), and the Cal-
ifornia Law Revision Commission's Comment on § 1235, reprinted in 29B CAL. Evm.
CooE 221.
33. Advisory Committee Note to Proposed Rule 801, 56 F.R.D. 183, 295 (1972).
substantive admissibility for all prior inconsistent statements was de-

sirable. Rather, as the legislative history of rule 801(d)(l)(A)
suggests, Congress ultimately came to accept arguments for the
unreliability of prior inconsistent statements, particularly those that
pointed to the risk of total fabrication. 34 Congress' consideration of
proposed rule 801(d)(l)(A) commenced in the House Committee
on the Judiciary. Initially, a subcommittee report recommended
adoption of a compromise rule patterned after decisions of the
United States Court of Appeals for the Second Circuit. The Second
Circuit had approved substantive admissibility of prior inconsistent
statements given under oath at a former trial or in grand jury testi-
mony in the same proceeding. 35 The House subcommittee incor-
porated the Second Circuit's position by adding the following lan-
guage to the proposed rule:
(A) Inconsistent with his testimony and was given under oath
and subject to the penalty of perjury at a trial or hearing or in deposi-
tion or before a grand jury. . . .36
The full House Judiciary Committee next added a requirement that,
in order to be substantively admissible, the prior statements must
have been subject to contemporaneous cross-examination. This
committee also struck the reference to grand jury proceedings. The
committee's final version of rule 801(d)(l)(A), which eventually
was passed by the House, stated:
(A) Inconsistent with his testimony and was given under oath
subject to cross-examination, and subject to the penalty of perjury at
a trial or hearing or in a deposition. . . .37
The House Judiciary Committee's report indicated the nature of
the concerns that prompted both the committee and the full House
34. See H.R. REP. No. 650, 93d Cong., 1st Sess. 13 (1973). See also United
States v. Leslie, 542 F.2d 285 (5th Cir. 1976); notes 38, 45 & 46 infra.
35. See United States v. De Sisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S.
979 (1964). In United States v. Cunningham, 446 F.2d 194, 197 n.3 (3d Cir.), cert.
denied, 404 U.S. 90 (1971), the court said: "Professor Chadbourn, referring to this
as 'the Second Circuit view,' has noted the carefully marked boundaries which limit
it. 3A WIGMORE, EVIDENCE§ 1018, at 997-98 (Chadbourn rev. 1970)."
36. Hearings on H.R. 5463 Before the Subcomm. on Criminal Justice, 93d Cong.,
1st Sess., 170 Supp. (1973 ). The Second Circuit rule was developed in criminal
cases. Since rule 801(d)(l)(A) is applicable to civil cases as well, the inclusion of
deposition testimony was a natural and logical extension.
37. See H.R. REP. No. 650, 93d Cong., 1st Sess. 13 (1973)[hereinafter cited as
HOUSE REPORT]. Although it is not clear in the House committee report, the right
of cross-examination in the formal proceeding presumably was intended to require
that, in a criminal case, the party against whom the testimony was being offered have
the opportunity and motive to develop the testimony by direct, cross, or redirect ex-
amination. Cf. FED. R. Evm. 804(b)(l) (similar approach to admission of prior
testimony); HousE REPORT, supra at 15 (same).
to place limitations on proposed rule 80l(d)(l)(A). Under the
House's approach, "[u]nlike in most other situations involving un-
sworn or oral statements, there can be no dispute as to whether the
prior statement was made; and . . . the context of a formal proceed-
ing, an oath, and the opportunity for cross-examination provide firm
additional assurance of the reliability of the prior statement."38 Al-
though rule 801(d)(l)(A) was to apply in both civil and criminal
proceedings, various statements in the legislative record suggest that,
in attacking the reliability of a witness' prior inconsistent statements,
the House was focusing on the rule's potential impact upon the
criminal defendant. 39 The House was concerned that a defendant
could be convicted solely on the basis of a witness' alleged out-of-
court statement, even though the statement was disputed by the wit-
ness' own testimony and no certain evidence existed establishing that
the witness had accurately recounted the information in the statement
and, more fundamentally, that the statement had ever been made.
After the House adopted its version of rule 80l(d)(l)(A), 40
38. HousE REPORT, supra note 37, at 13. Thus the House believed that the rule
would both ensure reliability and help neutralize the effect of any influence, coercion,
or deceit directed at the witness.
39. See, e.g., letter from James F. Schaefer, Chairman of the Committee on Fed-
eral Evidence and Procedure, Trial Lawyers of America, to Rep. William L. Hungate
(June 22, 1973) and accompanying material, in Hearings on Proposed Rules of Evi-
dence Before the Subcomm. 011 Criminal Justice of the House Comm. on the Judici-
ary, 93d Cong., 1st Sess. 127-29 Supp. (1973); Hearings 011 H.R. 5463 (Federal Rules
of Evidence) Before the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. 50-52
(1974) (statement of Edward W. Cleary). But see letter from Edward W. Cleary
to Herbert E. Hoffman, Counsel, Subcommittee on Reform of Federal Criminal
Laws, House Committee on the Judiciary, May 31, 1973, in Hearings on Proposed
Rules of Evidence Before the Subcomm. on Criminal Justice of the House Comm. 011
the Judiciary, 93d Cong., 1st Sess. 98-99 Supp. (1973) (rejecting exclusion of such evi-
dence). See also letter from Hon. Albert B. Maris to Herbert E. Hoffman, May 30,
1973, in Hearings on Proposed Rules of Evidence Before the Subcomm. on Criminal
Justice of the House Comm. 011 the Judiciary, 93d Cong., 1st Sess. 98 Supp. (1973).
40. Professor Cleary, in testimony before the Senate subcommittee discussing the
limitations placed by the House upon the admissibility of substantive evidence, stated:
"Their effect is for all practical purposes virtually to destroy the utility of the rule
as a solution for the problems it was designed to meet, such as fading memories,
bribery, intimidation, and other influences which cause witnesses to change their
stories." Hearings on H.R. 5463 (Federal Rules of Evidence) Before the Senate
Comm. on the Judiciary, 93d Cong., 2d Sess. 51 (1974) (statement of Edward W.
Cleary).
Professor Cleary had earlier stated that
[t]he redraft would virtually destroy the utility of provision (A), which deals
with prior inconsistent statements. If the witness has made a prior statement
under oath, the threat of a perjury charge makes it highly unlikely that he will
subsequently relate a different story again under oath. Hence the instances in
which the rule would operate under the suggested redraft would be greatly cur-
tailed. The problem area consists of cases in which the prior statement was not
under oath, whether in the course of a judicial proceeding or not, and a rule
which does not deal with these cases is of no practical significance.
consideration of the matter moved to the Senate Committee on the

Judiciary. The Senate committee recommended reinstatement of
the rule proposed by the Advisory Committee and the Supreme
Court, concluding in its report that the requirements of oath and op-
portunity for cross-examination were "unnecessary" since those ele-
ments were present when the witness testified at trial. 41 The full
Senate eventually accepted the recommendation of its committee,
and consequently the conflicting House and Senate proposals were re-
ferred to the conference committee.
The version of rule 801(d)(l)(A) that emerged from the con-
ference committee, which was the version finally enacted by Con-
gress, is as interesting for its packaging as for its resolution of the
disputed issues. The conference report42 stated that the Senate ver-
sion of rule 80l(d)(l)(A), which contained the approach originally
proposed by the Advisory Committee, was adopted with an amend-
ment requiring that prior inconsistent statements were substantively
admissible only if they were made at a trial, hearing, deposition, or
other proceeding under oath and subject to penalty of perjury. The
report stated that the "other proceedingt' provision would allow testi-
mony given before a grand jury.
Despite the suggestion by the conference committee that it had
largely adopted the Senate's version of rule 80l(d)(l)(A), the rule
proposed by the conference committee and accepted by Congress
clearly incorporates the substance of the House version of the rule.
Enacted rule 801(d)(l)(A) limits substantive admissibility to those
Letter from Edward W. Cleary to Herbert E. Hoffman, May 31, 1973, in Hearings
on Proposed Rules of Evidence Before the Subcomm. on Criminal Justice of the
House Comm. on the Judiciary, 93d Cong., 1st Sess. 98-99 Supp. (1973 ).
The foregoing testimony may well have been a slight overstatement made in the
heat of a battle to have the Supreme Court-promulgated rule 801(d)(l)(A) approved
by Congress. Statements made at the grand jury or preliminary hearing (in criminal
cases) or in depositions (in civil proceedings) would have substantive effect. These
proceedings give the state and the civil litigant an important opportunity to solidify
the testimony of its witnesses. One must admit, however, that although it is not
uncommon for witnesses to testify differently at trial than at deposition or grand
jury, these inconsistencies are generally slight. In fact, with respect to many such
statements, one needs a magnifying glass to find the discrepancy; it often manifests
itself only in the attitude of examining counsel.
41. S. REP. No. 1277, 93d Cong., 2d Sess., 15-16 (1974). The Senate committee
first noted that of all the traditional hearsay exceptions only the former testimony
exception requires that the prior statement be made under oath. The committee then
asserted that the jury has sufficient demeanor evidence to judge the credibility of the
prior statement if the declarant was presently testifying in court. Finally, the com-
mittee felt that its rule was superior because the prior statements, having been made
closer in time to the events they describe, would have been subject to less improper
influe9ce and would have been made when the witness' memory was relatively fresh.
42. CONF. REP. No. 1597, 93d Cong., 2d Sess. 10 (1974).
prior inconsistent statements for which there is ( 1) almost absolute

certainty that the statement was made43 and (2) additional assurance
of reliability and truthfulness because of the requirement that the
prior statement must have been given in a formal proceeding. 44
43. EVIDENCE, supra note 12, § 39 states this principle as the hazard of reporting
mistransmission, including the risks of honest error or of fabrication.
44. Although Congress' substantial concern over the reliability of prior incon-
sistent statements would seem to argue for a strict reading of rule 80l(d)(l)(A),
the early experience of the rule in the courts suggests that it may be broadened in
two ways: first, under the "other proceedings" language of the rule itself, and, second,
under the catchall hearsay exception of rule 803 (24).
In United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir.), cert. denied, 429 U.S.
983 (1976), a case involving the breadth of rule 801(d)(l)(A)'s reference to "other
proceedings," the Ninth Circuit decided that sworn tape-recorded statements made
during interrogation by a border agent were substantively admissible. Examining the
legislative history of rule 801(d)(l)(A), the court, while noting that the phrase
"other proceedings" was explicitly intended to cover grand jury proceedings, found
the term not so limited, reasoning that Congress could easily have made such limita-
tion express. 537 F.2d at 1057 n.3. Moreover, the court argued that inclusion of
the border interrogation within the "other proceedings" language of rule 801(d)(l)
(A) was supported by the similarity of such interrogation to a grand jury proceeding:
[W]e note that the immigration proceeding before Agent Pearce bears many
similarities to a grand-jury proceeding: both are investigatory, ex parte, inquisi-
tive, sworn, basically prosecutorial, held before an officer other than the arrest-
ing officer, recorded, and held in circumstances of some legal formality. In-
deed, this immigration proceeding provides more legal rights for the witnesses
than does a grand jury: the right to remain totally silent, the right to counsel,
and the right to have the interrogator inform the witness of these rights.
537 F.2d at 1058.
Although the court noted at the same page that not "every sworn statement given
during a police-station interrogation would be admissible," the logic of the opinion
does not readily provide a clear stopping point. In Castro-Ayon it5elf, the fact that
the statements were tape-recorded and that the witnesses later admitted their making
would appear to satisfy the standards of accuracy and reliability set by Congress.
Whether similar safeguards will exist in other situations to which rule 801(d)(l)(A)
may be extended remains to be seen.
Although Castro-Ayon may well have charted the outer boundaries of rule 801(d)
( 1)(A), there exists another avenue by which a witness' prior inconsistent statement
may gain substantive admission-the catchall hearsay exception of Federal Rule of
Evidence 803(24). This rule excludes from the hearsay rule
[a] statement not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if the court deter-
mines that (A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice will best be served
by admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes known to the ad-
verse party sufficiently in advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it, his intention to offer the
statement and the particulars of it, including the name and address of the declar-
ant.
In United States v. Iaconetti, 406 F. Supp. 554 (E.D.N.Y.), affd., 540 F.2d 574
(2d Cir. 1976), rule 803(24) was asserted to provide an alternative basis for the ad-
mission of a witness' prior consistent statement. The trial court noted briefly that
the statement was also admissible under rule 801(d)(2)(C) (admissions by an
agent) and rule 801 (d)(l)(B) (prior consistent statement to rebut charge of recent
fabrication), but devoted most of its analysis to the statement's admissibility under
rule 803 (24). The court found that the witness' prior statement possessed circum-
stantial guarantees of trustworthiness, in that it was made minutes after the event it
related and was made to a business partner and attorney of the witness, thus suggest-
ing minimal risks of faulty memory or insincerity. That the witness was available
for cross-examination regarding the statement's making was also deemed to support
its reliability. With respect to the other requirements of rule 803(24), the court
found that the statement was evidence of a material fact, and, moreover, the most pro-
bative evidence available since there was a direct conflict between the testimony of
the defendant and of the witness who had allegedly made the prior statement. The
importance of the evidence to resolution of that conflict also indicated to the court
that admission of the prior statement was consistent both with the general purposes
of rule 803 (24) and with the interests of justice. Finally, although the defendant
did not receive notice of the government's intention to produce the statement until
after the trial had begun-and thus arguably outside the period required by rule 803
(24 )-the court ruled that it was sufficient that the defendant had received the notice
five days before the government's actual use of the statement. The Second Circuit
subsequently approved of the court's application of rule 803(24). 540 F.2d 574.
In a recent case, United States v. Leslie, 542 F.2d 285 (5th Cir. 1976), the Fifth
Circuit held that the analysis of rule 803(24) developed in Jaconetti supported sub-
stantive admission of a witness' prior inconsistent statement. In Leslie, three alleged
accomplices of the defendant, called to the stand as court witnesses, testified that the
defendant was not aware that a car that he later sold was a stolen vehicle. The wit-
nesses admitted having given prior statements to the FBI that contradicted that testi-
mony, but, claiming that they had been influenced by expectations of favorable treat-
ment and that they had also been under the influence of various drugs, the witnesses
asserted that parts of those statements were untrue and that other parts were not
within their memory. In response, the government introduced evidence to show that
the prior statements had been freely given, without promise of reward and unaffected
by drugs. Although the trial judge had briefly instructed the jury not to consider the
witnesses' prior statements as substantive evidence, the court on appeal did not reach
the question whether that instruction was adequate, as it concluded after reviewing
Jaconetti that the prior statements were admissible as substantive evidence under rule
803(24). In support of its conclusion, the court cited five circumstantial guarantees
of the statements' reliability: first, the declarants were available for cross-examina•
tion; second, the statements followed the events they described by only a few hours;
third, the declarants admitted voluntarily signing forms waiving their right to re-
main silent; fourth, the witnesses admitted making the prior statements; and fifth, the
three statements, made before the declarants could agree on one story, were substan•
tially identical. The court discounted the witnesses' mere "hope" of favorable treat•
ment and thought the evidence refuted their claim of having been under the influence
of drugs. With respect to the other requirements of rule 803(24), the court found
the statements to be evidence on the material issue of whether the defendant was the
ringleader of the group or was just innocently along for the ride. Additionally, the
statements were said to be the most probative evidence available, since only the four
persons involved in the theft and transportation actually knew what had been
planned. As the evidence of these plans was conflicting, introduction of the prior
statements was asserted to best serve the interests of justice, the jury needing "all the
help it could get." 542 F.2d at 291. Although the notice required by rule 803(24)
was apparently not given, the court, following laconetti, ruled that strict adherence
to that requirement could be dispensed with where, as the court found to be true in
Leslie, the opposing party was not prejudiced.
laconetti and Leslie suggest that courts will use rule 803(24) to justify substan-
tive admission of prior consistent and inconsistent statements of in-court witnesses
when such statements appear reliable. Technical requirements such as notice will
likely be liberally construed. With respect to a witness' prior inconsistent statement,
even though the statement may not be admissible under rule 801(d)(l)(A), the wit•
ness' availability for cross-examination, strong evidence that the statement was in fact
made, and the presence of a serious conflict between the prior statement and the wit-
ness' in-court testimony are likely to argue persuasively that the statement be ad•
Thus, even though Congress did delete the House's requirement of

an opportunity for contemporaneous cross-examination, it is clear
that Congress ultimately accepted the House's basic position that
only the most reliable prior inconsistent statements should be admis-
sible in a criminal action. 45 By the same token, it rejected the
mitted as substantive evidence. See generally Graham, Examination of a Party's

Own Witness Under the Federal Rules of Evidence: A Promise Unfulfilled, 54 TEXAS
L. REV. 917, 972-75 (1976).
At the same time, it should be recognized that the substantive admission of a
prior inconsistent statement, even under rule 801 ( d) (1 )(A), will not divest the court
of control over its usage. In United States v. Librach, 536 F.2d 1228, 1232 (8th Cir.
1976), at trial on remand the defense counsel read into evidence certain testimony
of government witnesses from the earlier trial which was inconsistent with their pres-
ent testimony. The trial court properly granted the evidence substantive value, but
refused to allow counsel to reread the prior testimony during closing argument. In
response to the defendant's claim that the substantive value of the prior testimony
was thus undermined, the Eighth Circuit affirmed, unable to conclude that the jury
had failed to understand the substantive quality of the prior testimony and noting that
one of the reasons for granting substantive value to certain statements was that the
jury was likely to do so even when operating under a contrary instruction.
45. One indication that the limitation in scope of rule 801 (d)(l )(A) was a result
of concern with fairness for the criminal defendant is that the drafters of UNIFORM
RULE OF EVIDENCE 80l(d){l)(A) designed it to permit substantive use of all prior
inconsistent statements in civil cases, while adopting the federal rule for criminal pro-
ceedings. See also letter from Edward W. Cleary to Herbert E. Hoffman, May 31,
1973, in Hearings on Proposed Rules of Evidence Before the Subcomm. on Criminal
Justice of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 98-99 Supp.
( 1973): "Apparently the premise that underlies the suggested redraft is that a state-
ment not made under penalty of perjury is an insufficient basis to support a convic-
tion. See Bridges v. Wixon, 326 U.S. 135 [1945]; cf. California v. Green, 399 U.S.
149 [1970]."
A Note by the Federal Judicial Center also attributes Congress' opposition to pro-
posed rule 801{d){l)(A) as indicating concern that criminal defendants might be
convicted solely upon evidence of witnesses' prior inconsistent statements. Federal Ju-
diciary Center Note on Rule 801, Federal Rules of Evidence for United States Courts
and Magistrates, 98 n.3 (West 1975). In support of unrestricted admission of prior
inconsistent statements, the Federal Judicial Center's Note stressed that rule 80l(d)
{l){A) was addressed to admissibility, not to the question of sufficiency of the evi-
dence to support a conviction. The Judicial Center Note states that "factual circum-
stances could well arise where, if this were the sole evidence, dismissal would be ap-
propriate." S. REP. No. 1277, 93d Cong., 2d Sess. 16 n.21 (1974). But cf. People
v. Green, 3 Cal. 3d 981, 279 P.2d 998, 92 Cal. Rptr. 494 (1971) (a jury conviction
based upon substantive admission of prior inconsistent statement withstood a motion
directed to insufficiency of the evidence). For a discussion of burden of proof as
it affects substantive admission of prior inconsistent statements, see Comment, Prior
Inconsistent Statements and the Rule Against Impeachment of One's Own Wit-
ness: The Proposed Federal Rules, 52 TEXAS L. REV. 1383 (1974).
A court might be reluctant to grant a defendant's motion for acquittal pursuant
to FED. R. CRIM. P. 29 where the only incriminating substantive evidence was a prior
inconsistent statement, since disregarding the statement would certainly not be con-
struing all the evidence most favorably to the government. See Crawford v. United
States, 375 F.2d 332, 334 (D.C. Cir. 1967). However, the Supreme Court observed
in California v. Green, 399 U.S. 149, 163 n.15 (1970), that "considerations of due
process, wholly apart from the Confrontation Clause, might prevent convictions
where a reliable evidentiary basis is totally lacking." United States v. Schwartz, 390
F.2d 1, 7 (3d Cir. 1968), reversed a conviction in which a prior inconsistent state-
contention advanced by supporters of the Advisory Committee and

Senate· position that protection of the criminal defendant from un-
warranted conviction based solely upon a prior inconsistent state-
ment is properly the function of rules designed to evaluate the
sufficiency of evidence rather than of rules governing its substantive
admissibility. 46
C. A Proposed Amendment to Rule 801(d)(J)(A)
From the above review of the Orthodox Rule and the positions of
the commentators, the Advisory Committee, and Congress, it is ap-
parent that the dispute over the substantive admissibility of prior in-
consistent statements revolves around the question of what circum-
stances will provide sufficient assurance that a prior statement was
indeed made and that subtle influence, coercion, or deception has not
impaired its reliability. It should be recognized that concern with fab-
rication, subtle influence, coercion, and deception is an implicit re-
jection of the Orthodox Rule's contentions with respect to oath and
demeanor and accordingly is a recognition of the limited effec-
tiveness of cross-examination in discovering the truth at a modern
trial. Moreover, such concern acknowledges the difficulty inherent
in the trier of fact's task of determining whether to believe the wit-
ness who denies making a prior inconsistent statement or the witness
who offers extrinsic evidence of the statement's existence. Rather
than entrust that responsibility solely to the trier of fact, Congress
chose to limit substantive admissibility of prior inconsistent state-
ments to situations in which the likelihood of total fabrication was
practically nonexistent and the risk of subtle influence, coercion, or
deception was significantly reduced. 47
ment had been given substantive effect, noting, however, that "[e]ven if this testi-
mony were in the record, we conclude that there is sufficient evidence against de-
fendant."
46. See 4 WEINSTEIN, supra note 10, ,r 801(d)(l)(A)[0l] at 801-76.1 (1975);
Stalmack, Prior Inconsistent Statements: Congress Takes a Compromising Step Back-
ward in Enacting Rule 80/(dXIXA), 8 LoY. Cm. L.J. 251, 267 (1977).
47. The same issue arises with respect to admissions. As experienced trial coun-
sel know, it is not unusual for one party to claim that the opponent said something
that the opponent flatly denies having said. Here, the rules of evidence say the jury
is to decide the issue of credibility, and yet this situation and that regarding the sub-
stantive admissibility of prior inconsistent statements would appear to be identical.
Moreover, how is fabrication by the in-court declarant of alleged present sense im-
pressions, excited utterances, or other hearsay exceptions prevented? What, then, dis-
tinguishes testimony regarding prior inconsistent statements of an in-court declarant
from testimony of a witness _relating an alleged admission or hearsay exception? In
what sense do prior inconsistent statements lack the indicia of reliability thought to
justify admission of recognized hearsay exceptions? On what ground does the adver-
Acknowledging the legitimacy of Congress' concern regarding

rule 80l(d)(l)(A), it nevertheless appears that the rule's safe-
guards, which are designed to ensure that a prior inconsistent state-
ment was actually made and accurately recorded, .are overly strict.
Why should the rule exclude because of doubt about whether it was
made a signed or handwritten statement that is acknowledged by
the witness or proved to be his by other evidence? Why should it
exclude an oral statement not made under oath when the witness
during his testimony admits he made it? 48 Why should the rule ex-
clude on any ground substantive admission of prior inconsistent state-
ments in an affidavit prepared by the party's attorney that was exe-
cuted under oath and submitted to the court in the same or another
proceeding? 49
Alternative proposals have been advanced that would authorize
substantive admission of prior inconsistent statements where it is suf-
ficiently established that they were made. These proposals assert
that substantive admissibility should extend to all prior inconsistent
statements for which there are substantial guarantees of certainty of
making and accuracy of reporting and for which an effective oppor-
tunity exists for cross-examination to expose and counteract any im-
propriety that may have occurred in the taking of the statement.
Professor McCormick, for example, has suggested the following
rule:
A statement made on a former occasion by a declarant having
an opportunity to observe the facts stated, will be received as evi-
dence of such facts, notwithstanding the rule against hearsay if
(1) the statement is proved to have been written or signed
by the declarant, or to have been given by him as testimony in
a judicial or official hearing, or the making of the statement is
sary process accept the risk that a party will fabricate a statement of his opponent
but reject the same risk regarding statements of a witness unless such statements oth-
erwise fall into a recognized hearsay exception?
48. If the witness also admits that his prior inconsistent statement is true, the
statement is substantively admissible as adopted testimony. See, e.g., United States
v. Tavares, 512 F.2d 872 (9th Cir. 1975); United States v. Ellis, 461 F.2d 962 (2d
Cir.), cert. denied, 409 U.S. 866 (1972); Tripp v. United States, 295 F.2d 418 (10th
Cir. 1961); Stevens v. United States, 256 F.2d 619, 623 n.9 (9th Cir. 1958).
"When a witness thus affirms the truth of a prior statement, the earlier state-
ment is to be considered 'not only as bearing on the credibility of the witness but
as affirmative evidence.' . . • fl1he trier of the facts has 'two conflicting statements
. . . of equal force as evidence.'" United States v. Borelli, 336 F.2d 376, 391 (2d
Cir. 1964), cert. denied sub nom. Mogavero v. United States, 379 U.S. 960 (1965)
(citation omitted), in part quoting Stewart v. Baltimore & O.R.R., 137 F.2d 527, 529
(2d Cir. 1943), and Zimberg v. United States, 142 F.2d 132, 136 (1st Cir.), cert.
denied, 323 U.S. 712 (1944).
49. See United States v. Schwartz, 252 F. Supp. 866 (E.D. Pa. 1966).
1584 Michigan Law Review [Vol. 75:156S
acknowledged by a declarant in his testimony in the present pro-

ceeding, and
(2) the party against whom the statement is offered is af-
forded an opportunity to cross-examine the declarant. i;o
Professor McCormick's proposal contained one important qualifica-
tion: it would require that the declarant have personal knowledge
of the facts stated. The English Evidence Act of 1938 contained
a similar personal knowledge requirement:
In any civil proceeding where direct oral evidence of a fact would
be admissible, any statement made by a person in a document and
tending to establish that fact shall, on production of the original
document, be admissible as evidence of that fact if the following
conditions are satisfied, that is to say-
(i) if the maker of the statement either-
(a) had personal knowledge of the matters dealt with by
the statement;
(b) [made the statement as part of a business record];
and
(ii) if the maker of the statement is called as a witness in the
proceedings . . . .51
Although the effect of the personal knowledge requirement has
not been elaborated upon by the authors of the proposals that adopt
it, 52 the requirement has at least two very important consequences.
First, only a witness with personal knowledge of the subject matter
of a prior inconsistent statement can be cross-examined about
whether the statement is truthful. Second, the requirement ex-
cludes from evidence all prior statements of a witness that merely
narrate a third person's declaration unless the witness also has per-
50. McCormick, 25 TEXAS L. REv. 573, supra note 10, at 588. See also EVI-
DENCE, supra note 12, § 39, at 82.
51. Evidence Act, 1938, 1 & 2 Geo. 6 c. 28, § 1, repealed by Civil Evidence
Act, 1968, c. 64, § 20(2). The personal knowledge requirement was also incorpo-
rated in a proposal advanced by Professor Falknor. Out-of-court declarations would
have been substantively admissible under the Falknor proposal if
previously made by a person who is present at the hearing and available for cross-
examination if the judge finds that (a) the declarant had an adequate opportu-
nity to perceive the event or condition which the statement narrates, describes
or explains and (b) the statement was written or signed by the declarant or the
making of the statemept is acknowledged by the declarant in his testimony in
the present proceeding.
Falknor, supra note 9, at 54. Note that, as is true of Professor McCormick's pro-
posal and of the 1938 English Evidence Act, the rule designed by Professor Falknor
would apply to all out-of-court declarations, regardless of whether inconsistent with
in-court testimony.
52. Falknor alone discusses the need for a personal knowledge requirement, and
he considers only its impact upon cross-examination, thus failing to analyze the sig-
nificance of its exclusion of all second-hand hearsay not grounded in personal knowl-
edge of the facts related. Falknor, supra note 9, at 53-54. See text at notes 53-62,
sonal knowledge of the facts underlying the third person's state-

ment. 53 Thus a witness' prior statement that he heard a criminal
def~ndant make an incriminating admission would be inadmissible
as substantive evidence unless the witness had personal knowledge
of the incriminating conduct itself. In effect, the personal know-
ledge requirement excludes from evidence those statements most
open to fabrication 54 while concurrently assuring the opportunity for
effective cross-examination. Coupled with strong guarantees that
the prior inconsistent statement was actually made, 55 cross-examina-
tion-here, really redirect examination-of a witness with personal
knowledge of the underlying facts can be expected to test effectively
the reliability of the prior statement. 56
The following illustration demonstrates the importance of the
requirement of personal knowledge. Assume that in a bank
robbery prosecution the defendant calls a friend to the stand. The
friend testifies that he saw the defendant at a local bar on the night
53. The personal knowledge requirement may thus reflect a belief that a witness
is less likely to repeat another person's statement if he knows from his own observa-
tions that the statement is false.
54. See text at notes 34 & 39-46 supra.
55. Since the adoption of the Federal Rules of Evidence, the Fifth Circuit has
examined the certainty of making factor with respect to the substantive admissibility
under rule 803 (24) of prior inconsistent statements not meeting the stricter require-
ments of rule 80l(d)(l)(A). Rule 803(24) authorizes substantive admission of
hearsay statements not included within any specific exception if notice of their in-
tended use is given and they possess "equivalent circumstantial guarantees of trust-
worthiness" and meet certain additional requirements regarding probative value. See
note 44 supra. In United States v. Leslie, 542 F.2d 285 (5th Cir. 1976), discussed
in note 44 supra, the Fifth Circuit upheld the substantive admissibility of prior writ-
ten statements of three witnesses who at trial denied the truth of parts of their state-
ments and claimed lapse of memory with respect to other parts. The court, after dis-
cussing the various indicia of reliability, stated that, "[p]erhaps most significantly,
for all practical purposes they admitted making the statements." 542 F.2d at 290.
The court distinguished United States v. Sisto, 534 F.2d 616 (5th Cir. 1976), an
earlier Fifth Circuit case that denied substantive admission to a witness' prior incon-
sistent statement, as follows:
These factors distinguish this case from United States v. Sisto, . . . in which
we held that the trial court had committed plain error by failing to instruct the
jury that prior statements allegedly made by the defendant's accomplice were ad-
missible for impeachment only. In Sisto the only evidence that the statements
were made was the testimony of a government agent. The alleged declarant cat-
egorically denied having made the statements, and there was no evidence of a
writing or transcription. The House Judiciary Committee was no doubt con-
cerned about exactly this problem of a possible "manufactured" prior statement
being used against a criminal defendant when it rejected rule 801(d)(l) as pro-
posed by the Supreme Court. Once a witness has admitted making the prior
statement and only disputes the truth of its contents, however, there is no prob-
lem of a contrived extrajudicial statement getting before the jury for use as sub-
stantive evidence.
542 F.2d at 291 n.6 (emphasis original).
56. 4 WEINSTEIN, supra note 10, ,m 80l(d)(l)(A)[03]-801(d)(l)(A}[08]; Falk-
nor, supra note 10, at 54.
of the offense, that the defendant did not say anything to him at that
time, and that he appeared in normal health and was not carrying
anything. Assume further that the prosecution possesses a written
statement by the friend that concerns the night in question. While
on the stand, the friend admits having written and signed the state-
ment, though he denies its factual accuracy. Under the proposals
discussed above involving personal knowledge, a prior inconsistent
statement contained in the friend's written declaration to the effect
that the defendant had admitted robbing the bank would not be ad-
missible as substantive evidence, since the friend had no personal
knowledge of the matter dealt with in the prior inconsistent state-
ment. 57 Conversely, a prior inconsistent statement in the friend's
declaration to the effect that when the defendant entered the bar
he was very sweaty and out of breath, was wearing a torn shirt,
and was carrying a brown paper bag would be substantively admis-
sible, since the friend's prior inconsistent statement sufficiently
demonstrates his personal knowledge of the matters stated. 58
Both the McCormick proposal and the English statute would
keep from the jury the first prior inconsistent statement in our ex-
ample. This type of statement-the "double hearsay" statement,
typified by the admission-confession of the criminal defendant-is
the kind of evidence that has most concerned the judicial system, 50
for it raises the greatest danger of misapplication by the jury and
the greatest risk of total fabrication by the witness. 60 Under either
57. Double hearsay statements are substantively admissible only if there exists an
exception to the hearsay rule at each level. See FED. R. Evm. 805.
58. See FED. R. Evm. 602.
59. In United States v. Briggs, 457 F.2d 908, 910 n.3 (2d Cir.), cert. denied, 409
U.S. 986 (1972), a case involving the impeachment by a prior inconsistent statement
of a turncoat informer called by the defendant, Judge Friendly stated: "As we
pointed out in Cunningham, it is true that the statements would be admissible as af-
firmative evidence under Rule 801(d) (1) of the Proposed Federal Rules of Evidence.
. . . This case affords another illustration how dangerous such a rule would be."
60. The practical difficulties faced by the criminal defendant in opposing the use
of an alleged oral inconsistent statement are well stated in 4 WEINSTEIN, supra note
10, 1f 80l(d)(l)(A)[05] n.4:
Most instances in federal criminal cases as the rule was adopted by the Su-
preme Court would have pitted the witness against an FBI agent who inter-
viewed the witness while accompanied by a colleague and made a report on the
essentials of the story. In such a swearing contest the witness will almost al-
ways be at a disadvantage so far as the jury is concerned. Even should there
be some discrepancies between the FBI report and an agent's testimony, the use
of the report-available as [§ 18 U.S.C.] 3500 material-will generally tend to
support the agent's credibility because it will indicate that a contemporaneous
memorandum was made. The agent on redirect will be able to explain that the
report did not contain all the details and that the regular Bureau practice is to
destroy original notes when the typed report is prepared. The realities of the
situation explain why defense counsel and members of Congress were so opposed
of the foregoing proposals, only "first-hand hearsay" would be admis-

sible;61 admission-confessions, the least reliable and most damaging
evidence to the criminal defendant, 62 would not be admitted as sub-
to the rule as adopted by the Supreme Court. Nevertheless, it is probably true

that the jury is more apt to arrive at a sound factual determination if it is given
as much available data as possible, including evidence of what a key witness said
on prior occasions.
With respect to state court proceedings, the trustworthiness of the police officers is
even more subject to question.
Moreover, the risk of fabrication and distortion is significantly increased when a
witness purports merely to repeat another's out-of-court declaration. It is always
easier to say that X said something than to report personal observations of the event.
Even if X did in fact tell the witness something, it would not be unusual for the per-
son asserting to have overheard the out-of-court declaration to inject, intentionally
or otherwise, additional or different statements into the conversation. Unfortunately,
these fabricated or distorted statements will often be highly damaging admissions or
confessions not easily discounted by the jury.
The party opposing the truth of the prior out-of-court declaration containing a
second-level hearsay declaration is in a particularly difficult position. The witness
who is asserted to have repeated the second-level hearsay declaration could deny hav-
ing made any such statement and deny ever having heard the alleged second-level
statement. Such later denial is not particularly forceful, however, especially if the
declarant must admit contact with the person to whom the second-level statement is
attributed. If, on the other hand, personal knowledge is required, the witness can
do much more than offer a simple denial. He can testify about what he actually per-
ceived, or, if he perceived nothing, explain that, for example, he could not have seen
anything because he was in California on the day of the event. Note the discourage-
ment to the purported hearer of the witness' out-of-court declaration to fabricate the
existence of the statement or to add second-level embellishments. One is much less
likely to fabricate what the in-court witness allegedly perceived and stated than to
fabricate what the in-court witness allegedly heard and repeated. Often a police-
man will testify that "[t]he witness told me that John told him that he robbed the
store." If the witness knows John, the jury could mistakenly give credibility to the
story, since it is far from implausible and extremely difficult for the witness to refute.
In sum, the increased risk both of fabrication and of faulty recollection, together
with the limitations on effective cross-examination, warrant general exclusion of sec-
ond-level hearsay statements pursuant to rule 801(d)(l)(A). At the same time, situ-
ations may exist in which a prior inconsistent statement not meeting the requirements
of rule 801(d)(l)(A) should be admitted substantively pursuant to rule 803(24).
See, e.g., United States v. Leslie, 542 F.2d 285 (5th Cir. 1976), discussed in note
55 supra. For example, assume the defendant's mother voluntarily goes to a police
station and gives a tape-recorded statement that her son had just told her that he had
found his wife in bed with the milkman and that he was going to kill both of them.
She asks the police to stop her son. The mother's statement, even though containing
second-level hearsay about which the mother lacks personal knowledge, should be
found admissible in a murder prosecution against her son pursuant to rule 803(24),
even if she denies making it while testifying in court.
61. Statement of Lord Chancellor on the second reading of the Bill for the Act
of Lords, Civil Evidence Act, 1968, c. 64, § 2, whose forerunner was § 1 of Evidence
Act of 1938, 288 H. of L. OFF. REP. 1341, 1342. See FED. R. Evm. 805, permitting
double-level hearsay if an exception exists for each level. The requirement of per-
sonal knowledge gives the declarant an opportunity to state either what he now al-
leges to have seen or that, having not even been at the location indicated in the prior
inconsistent statement at the time alleged, he saw nothing. This statement is a far
more effective rebuttal than a mere denial by the witness that someone else said
something to him.
62. See notes 59 & 60 supra. Pursuant to rule 801(d)(l)(A) as enacted, a state-
stantive evidence even if the alleged admission is contained in a

signed statement of the in-court witness, unless the declarant also
had personal knowledge of the underlying event.
The foregoing proposals would also exclude from substantive evi-
dence an unacknowledged oral statement, the prior statement most
likely not to have been made and most likely, if made, to have been
unfairly obtained or inaccurately reported. With respect to written
statements 63 substantively admissible under each of these proposals
when made by a witness possessing personal knowledge of the event
related, it is undeniable that subtle influence, coercion, or deception
may have affected the process of taking and recording the state-
ment. 64 However, the circumstances surrounding the actual making
of the statement may be explained by the witness to the trier of fact,
.and the declarant may provide the trier of fact with a complete ex-
planation of why the statement is misleading, inaccurate, or incor-
rect. 65 Moreover, and critically important, the witness possessing
personal knowledge of the event related is in a position to advise
the trier of fact of what he now contends actually occurred. The
jury may observe the demeanor of the witness throughout. 00 Effec-
tive cross-examination by counsel opposing the truth of the prior in-
consistent statement can be expected to do no more; it rarely accom-
plishes as much. 67
ment by anyone concerning the defendant's confession would be admissible, in spite

of the declarant's lack of personal knowledge, if it were given to a grand jury or at
a prior trial. For a discussion of whether the formality of the making of the state-
ment is an adequate reason to dispense with the personal knowledge requirement, see
notes 25, 68 & 74 infra.
63. Many out-of-court declarations are admissible under the Federal Rules of Evi-
dence without regard to whether they are oral or in writing. Present sense impres-
sions (FED. R. Evm. 803(1)), excited utterances (FED, R. Evm. 803(2)), and state-
ments for purposes of medical diagnosis or treatment (FED. R. Evm. 803 (4)) are
examples. Moreover, none of these require that the declarant be available and thus
be subject to cross-examination. Admittedly, these exceptions to the hearsay rule are
based on certain presumptions about the certainty of making or accuracy of reporting
of the statements to which they apply.
64. See note 25 supra.
65. FED. R. EVID. 613(b) provides:
Extrinsic evidence of a prior inconsistent statement by a witness is not ad•
missible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate him there-
on, or the interests of justice otherwise require. This provision does not apply
to admissions of a party-opponent as defined in rule 801 (d){2).
See section ill infra.
66. The jury will have two opportunities for such observation: when the witness
testifies to the authenticity of the prior inconsistent statement and when he is cross-
examined about that testimony.
61. See notes 16-17 supra and accompanying text.
In short, the difficulty with rule 801(d)(l)(A) is not that it fails
to permit substantive admission of all prior inconsistent statements,
but rather that it fails to admit many statements that almost certainly
were made and that may be explored for truthfulness through subse-
quent cross-examination. The McCormick and English proposals
broaden admissibility beyond rule 801 (d)(l)(A)'s limitation to state-
ments made at formal proceedings. Yet each, assisted by the require-
ment of personal knowledge, ensures to a sufficient degree of certainty
that the statements were made and are trustworthy; at the same time,
both exclude the most untrustworthy declaration, the unacknow-
ledged oral statement. Accordingly, it is suggested that rule
80I(d)(l)(A) be amended to state:
if:
( 1) Prior Statement of Witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning
the statement, and
(A) The statement is inconsistent with his testimony, and (i)
is proved to have been made under oath subject to penalty
of perjury at a trial, hearing, or other proceeding or in a
deposition, or (ii) is made by a declarant having per-
sonal knowledge of the event or condition the statement
narrates, describes, . or explains and ( 1) the statement is
proved to have been written or signed by the declarant,
or (2) the making of the statement is acknowledged to
have been made either (a) by the declarant in his testi-
mony in the present proceeding or (b) by the declarant
under oath subject to the penalty of perjury at a trial, hear-
ing, or other proceeding or in a deposition, or (3) the state-
ment is proved to have been accurately recorded by a tape
recorder, videotape recording, or any other similar elec-
tronic means of sound recording. 68 -
68. The proposal does not extend the personal knowledge requirement to state-
ments now admissible pursuant to rule 801(d)(l)(A) primarily because that require-
ment has never been incorporated as part of the common-law hearsay exception for
former testimony, an exception closely paralleling rule 801(d)(l)(A)'s reference to
testimony and depositions. Moreover, while the same arguments put forth in the Arti-
cle are applicable to such prior inconsistent statements, additional indications of ab-
solute reliability are provided by the formality and, in some cases, public nature of
the prior proceeding. With respect to statements concededly made, such formality
does significantly reduce the effect of outside influence, coercion, see note 74 infra,
and deception, see text at note 76 infra. In any event, application of the personal
knowledge requirement to such prior statement would certainly not be unacceptable.
As previously noted, note 45 supra, Uniform Rule of Evidence 801(d)(l)(A)
permits substantive admissibility of all prior inconsistent statements in civil proceed-
ings. While the proposal made in this Article does not differentiate between civil
and criminal proceedings, the reduced practical effect of blanket substantive admissi-
Certain prov1S1ons of the proposed rule deserve specific men-

tion. 0° Current federal rule 80l(d)(l)(A) does not permit
substantive admissibility when a witness at trial acknowledges the
making but denies the truth of the inconsistent statement; in contrast
801(d)(l)(A)(ii)(2)(a) of the proposed rule would give substantive ad-
missibility to this inconsistent statement. In addition, 80l(d)(l)
(A)(ii)(2)(b) of the proposed rule provides the possibility of sub-
stantive admissibility for a prior oral or written statement the making
of which the witness had acknowledged while testifying at a prior
trial, hearing, other proceeding, or deposition, even if the witness
had denied its truth at that proceeding. Thus, subject to the require-
ment of personal knowledge, if a witness at a current trial had earlier
appeared at one of these formal proceedings and there had stated
that he had made a particular oral statement, under the proposal the
statement would be admissible substantively in the present trial if
it is inconsistent with his present trial testimony, even if he now states
that he never made the prior statement or that it was untrue.
The proposal also requires that the statement be "proved" to
have been made whenever the witness refuses to acknowledge that
he made it. It is envisaged that resolution of that issue would be
in the province of the court. This determination is not intended
merely to come under rule 104(b),70 under which the court would only
need to find that sufficient evidence had been introduced to support
a jury finding that the out-of-court statement was made. Rather,
the litigant seeking to use as substantive evidence a prior inconsistent
statement that the witness had not admitted making must initially
convince the court by a preponderance of the evidence that the state-
ment was in fact made. 71 Of course, given the nature of the prior
inconsistent statements that fall within the proposed rule, it is prob-
able that the witness will seldom deny making the statement, 72 al-
bility in civil cases coupled with the simplification such admissibility would accom-
plish with respect to problems addressed in rules 613 and 607 makes the Uniform
Rules' treatment of civil proceedings an acceptable if not preferable alternative.
69. Substantive effect is given to statements accurately recorded mechanically;
stenographic transcripts that are not taken as part of a trial, hearing, proceeding, or
deposition and that are unexecuted by the declarant are not included. Cf. Bridges
v. Wixon, 326 U.S. 135 (1945) ·(construing the regulations of the Immigration and
Naturalization Service on admissibility of evidence).
70. FED. R. Evm. 104(b): "Relevancy conditioned on fact. When the relevancy
of evidence depends upon the fulfillment of a condition of fact, the court shall admit
it upon, or subject to, the introduction of evidence sufficient to support a finding of
the fulfillment of the condition."
71. Ultimately, of course, the jury must determine if the statement was actually
made. See also Comment, supra note 45, at 1388-89.
72. If the actual making of these statements is disputed, proof of making by a
though the possibility of forged signatures on or alterations in

prior signed statements creates a potential for dispute over whether
such statements were made. 73
Since an in-court declarant who denies making a prior inconsis-
tent statement will necessarily be testifying under oath, the proposal
is justified in imposing a greater requirement of certainty that he
made the statement-accomplished by placing on the proponent of
the out-of-court declaration the burden of proof by a preponderance
of the evidence-than governs the admission of other disputed writ-
ings. Such direct testamentary contradiction is often not present
with respect to authentication of writings admitted pursuant to the
doctrine of conditional relevance. Moreover, the trier of fact, recog-
nizing that witnesses often lack a party's interest in the outcome of
the litigation, tends to value highly the testimony of the occurrence
witness. Accordingly, although a written admission introduced into
evidence pursuant to current federal rule 801(d)(2) would be ad-
mitted under the proposed rule upon a judicial determination that
sufficient evidence exists to support a subsequent jury finding that
the witness actually made the statement, testimony of the ocurrence
witness is potentially so persuasive, especially in criminal proceed-
ings, that more probative evidence that a prior inconsistent statement
was actually made must be introduced before it may be presented to
the jury for substantive consideration.
The proposed amendment to rule 80l(d)(l)(A) also requires
that, in order for the prior inconsistent statement to be admissible,
the proponent must prove by a preponderance of the evidence that
the statement alleged to be that of the declarant was the exact state-
ment that he had written or signed. The proponent of the prior
statement should not be required to bear this burden of proof regard-
ing admissibility for other facts about the statement, however. The
special problems of distortion through subtle wording variations,
complete omissions, fabricated additions followed by uncritical sign-
ing, or subtle influence or appeal to the declarant's desire to please
another person are resolved by the jury after it has heard the prob-
lems explained by the in-court declarant and explored by the cross-
examination of the person who took the written statement. The
jury, consistent with its traditional function, is assigned the tasks of
preponderance of the evidence will normally be accomplished as part of the process

of authentication. See generally United States v. Leslie, 542 F.2d 285 (5th Cir.
1976).
73. See note 25 supra,
judging the credibility of each witness and of deciding what in fact

occurred when the prior statement was allegedly made. Thus, once
the court is persuaded by a preponderance of the evidence that the
prior statement was in fact written or signed by the witness, it need
make no determination of any other facts relating to the statement,
for evaluation of the circumstances surrounding the making of the
statement is left to the jury.
Finally, if the declarant in either a civil or criminal case asserts
that a prior statement was made involuntarily, 74 under the proposed
rule the proponent of the statement would be required to convince
the judge by a preponderance of the evidence that the statement had
not been the product of coercion. 75 In this regard, it is noteworthy
74. The question of the voluntariness of the prior inconsistent statement was
faced in LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir. 1974). The case involved the
question whether a witness' prior out-of-court statement inculpating the defendant
could be used solely for purposes of impeachment without a judicial determination
that the statement was voluntarily made. The court concluded that a preliminary
hearing on voluntariness was constitutionally mandated, relying in part on Napue v.
Illinois, 360 U.S. 264, 269 (1959): "The principle that a State may not knowingly
use false evidence, including false testimony, to obtain a tainted conviction, implicit
in any concept of ordered liberty, does not cease to apply merely because the false
testimony goes only to the credibility of the witness."
The problem of police coercion of witnesses to obtain statements must be faced
squarely. Unfortunately, the proposed substantive admissibility of witnesses' incon-
sistent signed or written statements may increase police use of this tactic. Even with-
out such substantive admissibility and despite the discouragement of the voucher rule,
see text at notes 133-46 infra, police officers upon occasion have apparently
coerced statements from witnesses. See Bradford v. Johnson, 354 F. Supp. 1331
(E.D. Mich. 1972), aftd., 416 F.2d 66 (6th Cir. 1973); People v. Underwood, 61
Cal. 2d 113, 389 P.2d 937, 37 Cal. Rptr. 313 (1964); but see People v. Bates,
25 Ill. App. 3d 748, 324 N.E.2d 88 (1975).
75. The right of confrontation, of course, applies to prior inconsistent statements
placed in evidence against the criminal defendant. See generally Davenport, The
Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions:
A Functional Analysis, 85 HARV, L. REV. 1378 (1972); Griswold, The Due Process
Revolution and Confrontation, 119 U. PA. L. REv. 711 (1971); Read, The New Con-
frontation-Hearsay Dilemma, 45 S. CAL. L. REV. 1 (1972); Semerjian, The Right of
Confrontation, 55 A.B.A.J. 152 (1969); Silbert, supra note 10.
For a general discussion of confrontation issues raised when a witness admits, de-
nies, or does not recall either the making or substance of a prior inconsistent state-
ment, see 4 WEINSTEIN, supra note 10, ,m 80l(d)(l)(A)[0l]-801(d)(l)(A)[08],
Given the requirements of the proposed rule, it seems very unlikely that a witness
will in fact deny making the statement. If the witness does admit making the state-
ment, he may either affirm or deny the truth of its contents or deny recollection of
the underlying events. If its truth is affirmed, the prior statement has become cur-
rent testimony and will be given substantive effect. See 4 WEINSTEIN, supra note 10,
801(d)(l)(A)[02]. If the statement's truth is denied, the prior statement may
also be given substantive effect pursuant to California v. Green, 399 U.S. 149 (1970).
If the witness denies knowledge or memory of the underlying event, the court must
decide whether the witness' "apparent la_pse of memory so affected [the defendant's]
right to cross-examination as to make a critical difference in the application of the
Confrontation Clause." 399 U.S. at 168. In reaching this question upon remand in
that the preponderance-of-the-evidence standard has already been
applied in criminal cases to determine the voluntariness of a prior
inconsistent statement. 76
Ill. RULE 613-THE FOUNDATION REQUIREMENT
Rule 613, as drafted by the Advisory Committee, approved by

the Supreme Court, and adopted by Congress, constitutes a major
departure from the traditional foundation requirements developed at
common law and applied in the federal courts. 77 In order to under-
stand the operation of rule 613 and the significant change it repre-
sents, one must first explore the development of the traditional foun-
dation requirements, the most controversial aspects of which are de-
rived from the famous Queen Caroline's Case (hereinafter called
Queen's Case), decided in England in 1_820. 78
A. The Common-Law Requirements

I. Inconsistency
Before a party may attack the credibility of a witness by means
of a prior statement, it must initially be shown that the prior state-
ment is actually inconsistent with the witness' in-court testimony.
Thus, if the prior statement is not inconsistent, the law will not per-
mit its use for impeachment, and no question of proper foundation
for the introduction of extrinsic proof arises.
The degree of inconsistency required for impeachment has not
escaped the controversy that generally surrounds the foundation re-
quirement. Some jurisdictions have followed a strict test of incon-
sistency by narrowly construing the meaning of the statements and
Green, the California Supreme Court, after noting the witness' recollection of events
both before and after the alleged event in question, concluded that the witness' "de-
liberate evasion of the latter point in his trial testimony must be deemed to constitute
an implied denial that" defendant committed the offense in question,. 3 Cal. 3d 981,
989, 479 P.2d 998, 1002, 92 Cal. Rptr. 494, 498 (1971). After analyzing the three-
fold purpose of confrontation-to insure reliability, to expose the witness to cross-
examination, and to allow the trier of fact to observe the witness' demeanor-the
court found that purpose fulfilled and the right to confrontation satisfied.
76. See La France v. Bohlinger, 499 F.2d 29 (1st Cir. '1974). See generally
United States v. Leslie, 542 F.2d 285, 291 (5th Cir. 1976), discussed in notes 44
& 55 supra, which upheld the substantive admission of prior inconsistent statements
while not explicitly considering the burden of proof and ruling that contentions as
to the declarants' expectations of favorable treatment and drugged condition pre-
sented questions of credibility only.
77. For the text of rule 613, see text at note 113 infra.
78. 129 Eng. Rep. 976 (1820). See generally Stern & Grosh, A Visit with Queen
Caroline: Her Trial and Its Rule, 6 CAP. U.L. REv. 165 (1976).
by resolving doubts in favor of the witness. 79 McCormick, on the

other hand, suggested that the test should be as follows: "[C]ould
the jury reasonably find that a witness who believed the truth of the
facts testified to would have been unlikely to make a prior statement
of this type?" 80 Wigmore proposed a similarly liberal test: "Do the
two expressions appear to have been produced by inconsistent be-
liefs?"81
Federal courts have tended to agree with the statements of
McCormick and Wigmore. 82 For example, in United States v.
Barrett, 83 the court held that a witness' testimony that the defendant
had admitted his involvement in the crime was inconsistent with the
same witness' alleged statement that it was too bad the defendant
had been indicted because he knew the defendant was not involved.
The trial court had excluded the prior statement, ruling that it was
not inconsistent but was rather a "hearsay opinion . . . that this guy
is innocent." 84 The First Circuit, however, found the two state-
ments inconsistent and reversed, stating:
To be received as a prior inconsistent statement, the contradiction
need not be in plain terms. It is enough if the proffered testimony,
taken as a whole, either by what it says or by what it omits to say,
affords some indication that the·fact was different from the testimony
of the witness whom it is sought to contradict. . . . Furthermore,
the fact that [the witness'] belief that [the defendant] was not in-
volved might be called an "opinion" is immaterial. . . . The impor-
tant point is the clear incompatibility between [the witness'] direct
testimony and the. alleged statement. 85
2. The Foundation Requirement

Although the traditional foundation rule as s~t out in the
Queen's Case applied to -both written and oral prior inconsistent
19. See, e.g., Sanger v. Bacon, 180 Ind. 322, 328, 101 N.E. 1001, 1003 (1913).
See also Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52
CORNELL L.Q. 239, 253 (1967) (citation omitted):
A final observation about the limitations on impeaching statements is that
the degree of inconsistency must be real. When the statements are placed side
by side, it must be possible to say that both cannot be true. Only in this cir-
cumstance will the triers have reason to nullify the testimony given in court,
which is the only justification for the admissibility of the out-of-court statement.
80. EVIDENCE, supra note 12, ,§ 34, at 68.
81. 3A J. WIGMORE, supra note 10, § 1040, at 1048.
82. See United States v. Morgan, 555 F.2d 238, 242 (9th Cir. 1977) (approving
the liberal view of inconsistency under the Federal Rules of Evidence).
83. 539 F.2d 244 (1st Cir. 1976).
84. 539 F.2d at 254.
85. 539 F.2d at 254.
August 1977) Employing Inconsistent Statements 1595
statements., the specific requirements established for each were not

the same. The basic rule, which applied to all prior inconsistent
statements whether oral or written, required that a party intending
to impeach a witness with extrinsic evidence of a prior inconsistent
statement must first ask the witness upon cross-examination whether
he had made the prior statement and then must permit the witness
to admit, deny, or explain it. 86 In later cases, the foundation re-
quirement was refined to require that time, place, and persons
present, as well as the content of the prior statement, also be
specified. 87 The rationale of the rule was essentially threefold: (1)
to save time, since an admission by the witness that the statement
was his own might make the introduction of extrinsic evidence un-
necessary; (2) to avoid unfair surprise to the adversary, by alerting
him to the possible existence of a prior inconsistent statement and
thus enabling him to prepare to meet the issue; and (3) to prevent
unfairness to the witness, by permitting him to explain or deny an
apparent inconsistency at the time it was first suggested. 88
The Queen's Case established the additional requirement that,
before a witness could be examined about the contents of a writing
that allegedly contained a prior inconsistent statement, the document
itself had to be shown to the witness or its contents read to him.
This rule was based on a rather dubious application of the best evi-
dence rule: the court in the Queen's Case stated that "the contents
of every written paper are, according to ordinary and well-established
rules of evidence, to be proved by the paper itself, and by that alone,
if the paper be in existence."89 Many courts applying the rule of
the Queen's Case .forbade even questions designed to lay a foundation
for the written statement unless the witness was first shown the docu-
ment, and such disclosure thus came to be an integral part of the
foundation required for the introduction into evidence of a prior in-
consistent written statement. Clearly, however, the rule was also
more than a simple foundation requirement, for its prohibitions arose
not when extrinsic evidence of the prior written statement was offered,
86. The Queen's Case, 129 Eng. Rep. at 987-88; The Charles Morgan, 115 U.S.
69 (1885). See Hale, Impeachment of Witnesses by Prior Inconsistent Statements,
10 S. CAL. L. R.Ev. 135 (1937); Ladd, supra note 79.
87. Crowley v. Page, 173 Eng. Rep. 344 (1837); Angus v. Smith, 173 Eng. Rep.
1228 (1829).
88. See McCORMICK, supra note 10, § 37, at 72.
89. 129 Eng. Rep. at 977. For a criticism of the court's analysis, see 4 J. WIG-
MORE, supra note 10, § 1260; Hale, supra note 86, at 147-49 & n.60.
but rather when any question concerning the statement was put to
the witness on cross-examination.
Commentators have strongly criticized the requirement that a
witness must be shown his prior written statement before any cross-
examination commences concerning its contents. Wigmore termed
the requirement "a rule which for unsoundness of principle, im-
propriety of policy, and practical inconvenience in trials [is] the
most notable mistake that can be found among the rulings upon the
present subject." 90 Others have echoed that judgment, emphasizing
that showing the prior written statement to the witness on cross-
examination may warn the dissembling witness or refresh the memory
of the witness who is forgetful, thereby screening such infirmities
from the jury's inspection. One commentator has phrased the
objection as follows:
Grant the argument of the judges that a letter or other writing is the
best evidence of its contents and that therefore a witness should not
be questioned to give his version of the letter's contents from
memory, if it is desired to prove what the letter says. But there are
nevertheless many cases in which the purpose of the questioning is
not to prove the contents of the letter, but rather to test the credibil-
ity of the witness. If a witness has claimed to remember the details
of an event, but relates falsely what he wrote in a letter associated
with the event, that fact diminishes the trust which might be attached
to his memory. Similarly, if the witness falsely denied writing a par-
ticular letter, or lies about what he wrote, that fact obviously is evi-
dence that he is likely to be lying in other parts of his testimony about
related matters. But if the rule in the Queen's Case is followed, and
it is required that the witness first be shown or read the letter, this
valuable chance to test his memory and veracity is lost. A forgetful
witness will have his memory of the letter refreshed or corrected,
though his memory for the rest of his testimony remains faulty. A
lying witness will discover the matters on which he may safely lie and
those in which he must equivocate, thus guarding the lie from discov-
ery. 91
B. Prior Federal Practice: Foundation and
Extrinsic Evidence
Although the federal courts accepted in principle the foundation
, 1• 90. 4 J. WIGMORE, supra note 10, § 1259. McCormick also criticized dogmatic
•• 1 ; 1.~pplication of the rule, but he would have allowed the trial judge discretion to apply
. . . , it in order to prevent counsel from abusing cross-examination to induce the forgetful
, , ,
1
witness to widen the gap between his testimony and his prior written statement. EVI•
DENCE, supra note 12, § 28.
91. Stern & Grosh, supra note 78, at 198. Of course, the process of discovery has
significantly reduced the likelihood that the witness will in fact be surprised and thus
be dramatically confronted with an alleged prior inconsistent writing. The issue of
fairness to the witness would thus seem to have little practical significance.
rule established in the Queen's CO§e, in practice they never consid-

ered themselves bound by its technical requirements. In The
Charles Morgan, 92 an 1885 case, the Supreme Court did note with
approval the foundation requirements applicable to prior inconsistent
oral and written statements. However, the Court suggested that, al-
though the requirement that a witness be shown a prior inconsistent
written statement before any cross-examination can begin concern-
ing its contents was "ordinarily" applicable, the rule might be ig-
nored in certain situations. The Court stated that "[c]ircumstances
may arise, however, which will excuse [the document's] production.
All the law requires is that the memory of the witness shall be so
refreshed by the necessary inquiries as to enable him to explain, if
he can and desires to do so." 93 Later courts generally accepted that
statement as a presentation of the ordinary rule rather than as an
exception thereto, and therefore they did not require that the prior
written statement actually be shown to the witness so long as the
witness had an opportunity to explain the inconsistency. For ex-
ample, in United States v. Dilliard, 94 the defendant complained that
the prosecution had used a letter he had written to impeach him
without first allowing him to see it. Affirming the defendant's con-
viction, Judge Learned Hand, speaking for the Second Circuit, ad-
mitted that the rule of the Queen's Case had been broken, but held
that, although the Supreme Court in The Charles Morgan had
countenanced the rule, it had
scarcely accepted [the rule] as preemptory. . . . It was reversed
by legislation in England, and is everywhere more honored in the
breach than in the observance. Fairness usually does require that
the witness shall be told when and where he made the putatively con-
tradictory statement; but that is really all that the Supreme Court has
ever exacted, and we think more is not necessary.95
The federal rule that ultimately developed did retain the require-
ment that, before the introduction of extrinsic evidence of a prior
oral or written inconsistent statement, the witness must be con-
92. 115 U.S. 69 (1885).

93. 115 U.S. at 77-78.
94. 101 F.2d 829 (2d Cir. 1938).
95. 101 F.2d at 837. See also United States v. Hibler, 463 F.2d 455, 462 (9th
Cir. 1972) (trial judge's exclusion of cross-examination of a witness concerning prior
trial testimony without showing the witness copies of prior testimony transcript held
error); United States v. Bernstein, 417 F.2d 641, 644 (2d Cir. 1969) ("all that fair-
ness requires is that the witness be told when and where he made the putatively con-
tradictory statement"); Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887, 891
(5th Cir. 1969) (error to permit witness to hold copy of deposition in his hand dur-
ing cross-examination).
fronted with its contents so that he could admit, deny, or explain. 00

Most courts did not strictly enforce the "time, place, and persons
present" aspect of the traditional rule, generally requiring only that
the witness' attention be sufficiently directed to the circumstances
surrounding the making of the prior inconsistent statement so that
he could admit, deny, or explain. 07 Although the federal courts had
stated that at the very least the witness had to be given this oppor-
tunity to explain the inconsistency,98 they never required that the
impeaching cross-examiner himself actually provide it. So long as
the court permitted counsel on redirect to elicit an explanation, the
96. See The Charles Morgan, 115 U.S. 69, 77 (1885):

The rule is, that the contradictory declarations of a witness, whether oral or in
writing, made at another time, cannot be used for the purpose of impeachment
until the witness has been examined upon the subject, and his attention particu-
larly directed to the circumstances in such a way as to give him full opportunity
for explanation or exculpation, if he desires to make it.
The witness' explanation of the inconsistency might take several forms-for example,
that the prior statement was coerced, e.g., United States v. Scandifia, 390 F.2d 244,
250-51 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310 (1969), that the re-
port of his prior statement is inaccurate, or that the inconsistency is not significant.
One means advocated by Wigmore, see 3A J. WIGMORE, supra note 10, § 1045, and
specifically recognized in FED. R. Evm. 106 is to introduce such other portions of
the writing as are necessary to explain the inconsistency.
97. See Brooks v. United States, 309 F.2d 580, 582 (10th Cir. 1962), cert. denied,
383 U.S. 916 (1966) ("it is necessary that the prior statements be called to his atten-
tion, and that he be given an opportunity to admit, deny, or explain them"). United
States v. Dilliard, 101 F.2d 829, 837 (2d Cir. 1939) ("[f]aimess usually does require
that the witness shall be told when and where he made the putatively contradictory
statement"). But see Robertson v. MIS Sanyo Maru, 374 F.2d 463, 465 (5th Cir.
1967), cert. denied, 400 U.S. 854 (1970) ("the cross-examiner should ask the witness
whether he made the statement, giving its substance, naming the time, the place, and
the person to whom made"); Sylvester v. Meditz, 278 F. Supp. 810, 813 (E.D. Wis.
1968) (''The proper procedure for laying a foundation for impeachment by prior
inconsistent statements made orally is to call the attention of the witness to the par-
ticular time and occasion when the witness purportedly made the statement. The
witness should be informed what the statements were and the conditions and circum-
stances under which they were made."); Osborn v. McEwan, 194 F. Supp. '117, 118
(D.D.C. 1961) ("[t]he interrogation on cross-examination must identify the specific
statement and indicate its contents, the occasion, and the person to whom it was
alleged to have been made"). See also 3A J. WIGMORE, supra note 10, § 1029:
If the preliminary question is to be useful as a warning to enable the witness
to prepare to disprove the utterance or to explain it away if admitted, it must
usually specify some details as to the occasion of the remark. The witness may
perhaps without this understand the occasion alluded to; but usually he will not,
and in such a case this specification of the details is a mere dictate of justice.
The tendency of American courts, however, is to lose sight of the fact that this
specification is a mere means to an end (namely, the end of adequately warning
the witness), and to treat it as an inherent requisite, whether the witness really
understood the allusion or not. The result of this is that unless the counsel re-
peats a particular arbitrary formula of question, he loses the use of his evidence,
without regard to the substantial adequacy of the warning. Such a practice is
impolitic and unjustified by principle.
98. See, e.g., United States v. Wright, 489 F.2d 1181, 1187 (D.C. Cir. 1973);
cases cited in notes 99-100 infra.
rule was deemed satisfied. 99 However, the federal courts did strictly
enforce a requirement that the opportunity for such explanation must
occur before the introduction of extrinsic evidence. 100
An additional component of the foundation rule that developed
in the federal courts, the good-faith-basis requirement, prevented
counsel from making unwarranted insinuations that a witness had
made a prior inconsistent statement. This requirement vested the
court with discretion to demand the assurance of counsel that he
could support the foundation question of whether the witness had
made a prior statement with evidence of the alleged statement. 101
In United States v. Bohle, 102 the court stated the rule as follows:
Where a trial judge is aware of the possibility that counsel intends
to ask an impeaching question having prejudicial implications, it is
proper and advisable, in the interests of avoiding abuse and of insur-
ing a fair trial to both the prosecution and the defendant, that the
judge inquire of counsel whether the question on which he is about
to embark is for the purpo~e of impeachment and whether and how
counsel intends to follow up the question with impeaching proof. If
there is no intention to introduce such impeaching proof, the question
may, in the court's discretion, be properly excluded.103
If a witness responding to the foundation question denied mak-
ing a prior statement, federal courts then required the cross-
99. See generally United States v. Franzese, 392 F.2d 954, 959 (2d Cir. 1968),
vacated on other grounds, 394 U.S. 310 (1969) (witness explained that he feared
death or bodily harm); United States v. Scandifia, 390 F.2d 244, 250-51 (2d Cir.
1968), vacated on other grounds, 394 U.S. 310 (1969) (witness testified that his fam-
ily had received threatening phone calls); Pattison v. Standard Oil Co. of Ohio, 375
F.2d 643 (6th Cir. 1967) (prejudicial error to deny witness the opportunity to ex-
plain); West v. Greyhound Corp., 254 F.2d 541 (5th Cir. 1958) (witness may admit
and explain prior statement); Affronti v. United States, 145 F.2d 3 (8th Cir. 1944)
(other portions of prior statement admissible to meet for~ of impeachment).
100. See United States v. Wright, 489 F.2d 1181, 1187 (D.C. Cir. 1973) ("[b]e-
fore introducing extrinsic proof of a witness' prior inconsistent statement, the witness
must be asked whether he or she made the statement and must be given an opportu-
nity to explain it"); United States v. Hayutin, 398 F.2d 944, 953 (2d Cir.), cert. de-
nied, 393 U.S. 961 (1963).
101. See St. Clair v. Eastern Air Lines, Inc., 279 F.2d 119 (2d Cir. 1960).
102. 445 F.2d 54 (7th Cir. 1971).
103. 445 F.2d at 74. The court in Bohle, however, condemned the practice of
requiring that counsel reveal to the witness and opposing counsel the specific im-
peaching information, since it gives the witness time to consider his _answer to the
foundation question and thereby eliminates any reaction of surprise. Referring to the
trial court's decision to allow confrontation of the witness with his prior statement
out of the presence of the jury, the Seventh Circuit said:
Such a practice would appear to have a strong tendency to undermine the func-
tion of confronting the witness with the question in the first place. The loss
to the jury of the witness' initial and inlmediate response is accompanied by the
loss of one potentially significant aspect of the credibility determination. In the
usual case, we can see no point in thus weakening the right to an effective cross-
examiner to produce extrinsic evidence of the statement. 104 A wit-

ness' equivocal answer to the foundation question also required the
introduction of extrinsic evidence. For example, in Ditrich v.
United States, 105 a witness admitted signing an inconsistent prior
written statement, but refused to say whether she had in fact made
the statements contained in the writing. Given those circumstances,
the court required that the writing itself be introduced. 100 If, on
the other hand, the witness admitted making a prior inconsistent
statement, the courts did not require that extrinsic evidence of the
statement be introduced,1° 7 and some went so far as to exclude such
evidence. 108 There was, however, no consensus among the courts
or the commentators about the admissibility of extrinsic evidence
under these circumstances. In Gordon v. United States, 100 the Su-
-preme Court stated that "an admission that a contradiction is con-
tained in a writing should not bar admission of the document itself
in evidence."110 Wigmore agreed that no valid reason existed to ex-
clude evidence following the witness' admission, and he asserted that
counsel should be allowed to emphasize the inconsistency .111
McCormick disagreed, however, advocating what he felt to be the
prevailing view of excluding extrinsic evidence of an admitted prior
examination by use of the voir dire procedure.

445 F.2d at 75.
104. United States v. Stanfield, 521 F.2d 1122, 1127 (9th Cir. 1975); United
_States v. Hibler, 463 F.2d 455, 461 (9th Cir. 1972); United States v. Bohle, 445 F.2d
54, 74 (7th Cir. 1971) ("[i]n civil litigation and in the case of the prosecution in
a criminal case, the duty to follow up foundation with evidence is breached at the
risk of reversal of any tainted victory"); United States v. Amabile, 395 F.2d 47, 50
(7th Cir. 1968), vacated on other grounds, 394 U.S. 310 (1969), affd. 011 remand,
432 F.2d 1115 (1970), cert. denied, 401 U.S. 924 (1971); Sidders v. United States,
381 F.2d 513, 516 (9th Cir. 1967); Robertson v. M/X Sanyo Maru, 374 F.2d 463,
465 (5th Cir. 1967), cert. denied, 400 U.S. 854 (1970) ("[i]f the witness denies
the making of the statement or fails to admit it, the cross-examiner must prove the
making of the alleged statement at his next stage of giving evidence").
105. 243 F.2d 729 (10th Cir. 1957).
106. See also Bush v. United States, 267 F.2d 483, 489 (9th Cir. 1959) (witness
answered that he "might have said it"); Patterson v. United States, 361 F.2d 632,
635 (8th Cir. 1966).
107. United States v. Stanfield, 521 F.2d 1122, 1127 (9th Cir. 1975); United
States v. Hibler, 463 F.2d 455, 462 (9th Cir. 1972); Brooks v. United States, 309
F.2d 580, 582 (10th Cir. 1962), cert. denied, 383 U.S. 916 (1966).
108. Dilley v. Chesapeake & 0. Ry., 327 F.2d 249, 251 (6th Cir.), cert. denied,
379 U.S. 824 (1964) ("where a witness admits a statement attributed to him, there
is no necessity to prove it and the statement is not admissible in evidence").
109. 344 U.S. 414 (1953).
110. 344 U.S. at 420. See also United States v. Browne, 313 F.2d 197 (2d Cir.),
cert. denied, 374 U.S. 814 (1963 ).
111. 3A J. WIGMORE, supra note 10, § 1037.
statement112 in order to save time and minimize the calling of wit-

nesses on subsidiary issues.
C. The Approach Adopted in Rule 613

In assessing what foundation requirement to apply to prior state-
ments of witnesses, the Advisory Committee for the Federal Rules
of Evidence was faced with federal court practice that repudiated
that aspect of the foundation rule requiring a written statement to
be shown or read to the witness prior to examination thereon but
still required a foundation sufficient to allow the witness an ef-
fective opportunity to admit, deny, or explain the alleged prior state-
ment before permitting introduction of extrinsic proof. An analysis
of this practice led the Advisory Committee to draft-and Congress
to pass-rule 613, which confirmed much of the existing federal
practice while also further liberalizing the traditional foundation re-
quirements. The rule provides as follows:
Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examin-
ing a witness concerning a prior statement made by him, whether
written or not, the statement need not be shown nor its contents dis-
closed to him at that time, but on request the same shall be shown
or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless the witness is afforded an opportunity to explain
or deny the same and the opposite party is afforded an opportunity
to interrogate him thereon, or the interests of justice otherwise re-
quire. This provision does not apply to admissions of a party-
opponent as defined in rule 80l(d)(2). 113
Although Congress passed rule 613 without substantive
change,114 the rule did undergo two significant alterations between
the time of its first publication in 1969 115 and its approval by the
Advisory Committee and the Supreme Court. 116 Initially, the Ad-
visory Committee substituted "inconsistent" for "contradictory" to
112. EVIDENCE, supra note 12, § 37, at 73.

113. FED. R. EVID. 613.
114. The only modification in rule 613 made by Congress was in the second
sentence of 613 (a), where Congress substituted "nor" for "or." See Federal Judiciary
Center's Note on Rule 613, FEDERAL RULES OF EVIDENCE FOR UNITED STATES
COURTS AND MAGISTRATES 75 (West 1975).
115. Preliminary Draft of Proposed Rules of Evidence for the United States Dis-
trict Courts and Magistrates, 46 F.R.D. 161, 308-09 (1969).
1116. The Advisory Committee also made one clarifying change. The committee
describe the nature of the prior statements included, a change de-

signed to assure a liberal interpretation of what statements will
qualify for purposes of impeachment. 117 - The second-and more
important-change in rule 613 was the addition of the phrase "or
the interests of justice otherwise require" 118 to 613(b). This modi-
fication permits the trial judge to excuse counsel's inadvertent failure
to lay a foundation when the witness is unavailable for recall. Fur-
thermore, the .amendment assures that evidence will not be automati-
cally excluded if circumstances develop that deny the witness an op-
portunity to explain the inconsistency.
Rule 613(a) abolishes once and for all the "useless impediment"
to cross-examination represented by that portion of the Queen's
Case requiring a written statement to be shown or read to .a witness
prior to examination thereon. Instead, rule 613 (a) requires that
counsel examining a witness concerning a prior oral or written state-
ment disclose, if requested, the contents of the statement to the op-
posing counsel. Although no specific time for such disclosure is
designated, the requirement of disclosure "upon request" presum-
ably refers to when the witness is being examined about the prior
statement. 119 In short, rule 613(a) establishes identical foundation
requirements for examination as to either a witness' prior oral or writ-
ten statement. A good-faith basis is required for this examination,
enforced by a duty to disclose the content of the statement to op-
posing counsel upon request. However, examination upon the prior
oral or written statement may proceed without initial disclosure to
the witness of its contents.
To illustrate the operation of rule 613(a), let us assume that an
occurrence witness upon direct examination by plaintiff states that
he saw the entire .accident and that at the time of the accident the
added the phrase "at that time" to rule 613(a) following "the statements need not
be shown or its contents disclosed to him," in order to make it clear that the state-
ment may have to be shown to the witness at some time in order to allow him to
explain or deny it. The amendment also sought to emphasize that Federal Rule of
Civil Procedure 26{b){3), allowing a person to obtain a copy of his own statement,
was not repealed, though its operation may be temporarily suspended. Advisory
Committee Note to Proposed Rule 613, 56 F.R.D. 183, 278 (1972).
117. See 3 WEINSTEIN, supra note 10, ,r 613(01].
118. Professor Alex Brooks, chief draftsman of the New Jersey Rules of Evi-
dence, was primarily responsible for the amendment. The phrase was proposed in
the Report of American College of Trial Lawyers, Committee To Study Proposed
Rules of Evidence 49 (1970), cited in 3 WEINSTEIN, supra note 7, ,r 613(02] at 613-
7.
119. Requiring disclosure at the time of the examination may represent a change
traffic light facing the defendant's truck was red. Defense counsel
has in his arsenal two prior inconsistent statements. The first is an
oral statement by the witness made to police officer Smith. The
second is a signed statement given to John Brown, an insurance in-
vestigator. Assume further that in both statements the witness is
alleged to have asserted that he did not see the color of the traffic
light at the time of the accident, having arrived at the scene about
twenty seconds after hearing but not observing the impact. In cross-
examination of the witness, defense counsel may employ (either
alone or in combination) questions falling within any one of the fol-
lowing categories:
(1) Cross-examination confronting the witness with other ver-
sions of the facts. For example, "Isn't it true you did not actually
see the car and truck collide?," or "Didn't you in fact arrive at the
accident twenty seconds after impact?"
(2) Cross-examination inquiring about the assurance, frank-
ness, and recollection of the witness. For example, "Have you
always maintained that position?," or "Did you ever tell a contrary
story to anyone else?"
(3) Cross-examination going beyond mere inquiry about assur-
ance of position and clearly implying the existence of a contrary
statement. For example, "Didn't you talk to John Brown about the
accident?"
(4) Cross-examination confronting the witness with the sub-
stance or exact content of a prior statement, after laying a partial
but not full prior foundation regarding time, place, and persons
present. For example, "Didn't you tell Officer Smith a completely
contrary story?," or "Haven't you said on another occasion that you
arrived at the scene of the accident twenty seconds after hearing the
collision?" 120
in practice with respect to statements not already in possession of the opposing party.
If impeachment is by a document or deposition transcript already in the opponent's
possession, it is customary, if not required, to specify the document or give the date,
page, and line of the deposition transcript being used to impeach. With respect to
written documents not previously discovered, past practice might have required dis-
closure only at the conclusion of cross-examination. Cf. People v. Mulliken, 41 111.
App. 2d 282, 190 N.E.2d 502 ( 1963) (no right of opposing counsel to inspect tran-
script of oral statements used to lay foundation for impeachment).
On the introduction of the remainder of writings that in fairness ought to be con-
sidered together, see FED. R. Evm. 106; Westinghouse Elec. Corp. v. Wray Equip.
Corp., 286 F.2d 491 (1st Cir.), cert. denied, 366 U.S. 929 (1961).
120. Prior to the adoption of rule 613, objections to questions in categories (2),
(3), and (4) were often made and sustained on the_ ground of lack of adequate
foundation, referring to the fact that all elements of the traditional common-law
foundation were not included. When such objections were overruled, the ruling us-
( 5) Cross-examination posing a question containing the tradi-

tional full foundation. For example, "Didn't you say to Police Offi-
cer Smith on July 1, 1977, when he spoke with you at the scene
of the accident, 'I got here about twenty seconds after I heard the
collision. I didn't see it happen. Do you know what happened?' "
Pursuant to rule 613(a), questions falling within any of the five
categories would be permitted without prior disclosure to the witness
of the contents of the written statement. However, questions falling
within categories (4) or (5), and probably within category (3), would
require disclosure of the prior statement to opposing counsel, if re-
quested, since the cross-examination of the witness concerns the
prior statement. Such questions are distinguishable from questions
to the witness about the underlying facts, which fall within category
(1), or questions about the possible existence of a contrary state-
ment, which come under category (2). Questions falling within
categories (1) and (2) do not concern a prior statement made by
the witness, and thus they give rise to neither a rule 613(a) require-
ment of a good-faith basis nor the obligation to disclose the prior
statement, if there is one, to opposing counsel.121
ually was in response to the examining counsel's assertion that the question asked
was preliminary to the laying of the traditional foundation. Even prior to rule 613,
however, such questions should have been allowed as relevant to the recollection,
frankness, and honesty of the witness. See People v. Jones, 160 Cal. 358, 364-65,
117 P. 17 6, 179 ( 1911). Of course, category (3) and ( 4) questions should be ex-
cluded as "unwarranted insinuations" if the cross-examiner does not intend to proceed
with impeachment. However, category (1) and (2) questions are proper even if they
are not used preliminary to the laying of a foundation for impeachment. In practice,
counsel most often refrain from asking a,question in categories (1) or (2), since the
witness will almost always simply repeat his direct testimony or deny ever making an
inconsistent statement. However, if counsel desires to ask such a question without
intending to pursue the line of questioning unless he receives a "yes" answer, the ques-
tion on balance seems unobjectionable, since neither the question nor the answer seems
to create an unwarranted risk of insinuation of a prior inconsistent statement.
Dean Hale summarizes the correct position-which was accepted by rule 613-
on the allowability of such questions:
[I]n cross-examining a witness concerning an alleged prior oral contradictory
statement, it is not necessary to call his attention to the time, place and parties
present. It is only with reference to, and as a basis for the later calling of an
impeaching witness, that the requirement as to time, _Place, et cetera figures.
Pursuant to one of the basic purposes of cross-examination, it seems entirely ap-
propriate in testing the assurance, and indeed the frankness and honesty, of the
witness with reference to his testimony to challenge him with the other possible
prior versions of the facts in conflict therewith without requiring the cross-ex-
aminer at that point to reveal all the bases of contradiction that he may have
in reserve. There may well be something very revealing in the contrasts that
appear in answering a first inquiry and a more pointed subsequent inquiry. ,This
contrast becomes particularly vivid if the witness at first denies any prior con-
flicting statement and then is confronted with a letter over his own signature in
which the conflicting statement appears. Weaknesses of memory, if not dishon-
esty, stand out in bold relief.
Hale, supra note 86, at 149. See 4 J. WIGMORE, supra note 10, § ,1260.
121. Rule 613(a) provides that "on request the same [prior inconsistent state-
Turning to 613(b), extrinsic evidence of a prior inconsistent oral

or written statement is not permitted unless the witness is afforded
an opportunity to explain or deny and the opposite party is afforded
an opportunity to interrogate him thereon. As pointed out in the
Advisory Committee Note, rule 613(b) permits extrinsic proof to
be introduced before the witness is allowed to admit, deny, or ex-
plain the prior statement. 122 Moreover, what is important under rule
613(b) is the opportunity to deny or explain, not whether any denial
or explanation actually occurs. Thus the foundation requirement is
satisfied if the witness remains available for recall by the calling
party later in the course of the trial, even if that party chooses not
to recall the witness.
Rule 613 (b) does not, however, address the question of when
cross-examination concerning the prior inconsistent statement has
proceeded to focus the witness' attention upon the circumstances sur-
rounding the alleged making of the prior inconsistent statement to
such an extent that the witness may be said to have been afforded
an opportunity to deny or explain the statement on redirect examina-
tion. Returning to the illustration, if a full foundation is provided-
i.e., if the questioning covers the time, place, persons present, and
content of the prior statement and thus comes under the rubric of
category (5) above-an opportunity is obviously provided to oppos-
ing counsel to explore the prior inconsistent statement on redirect
and to bring out any explanation the witness may have. Further-
more, it is clear that, if the witness on cross-examination is ex-
ment] shall be shown or disclosed to opposing counsel." This provision apparently

contemplates that the exact words of the prior inconsistent statement rather than
merely the substance be disclosed even if the prior statement was oral. This dis-
closure may be done by giving opposing counsel a copy of the statement or by refer-
ring to the appropriate segment if he already has a copy. For oral statements, a
copy, if reduced to writing, may be given or may be transmitted orally at the side
bar. See also note 119 supra. _
122. Advisory Committee Note to Proposed Rule 613, 56 F.R.D. 183, 279
(1972). ("[t]he traditional insistence that the attention of the witness be directed
to the statement on cross-examination is relaxed in favor of simply providing the wit-
ness an opportunity to explain and the opposite party an opportunity to examine on
the statement, with no specification of any particular time or sequence"). In spite
of the clear language of the Advisory Committee Note and the position adopted in
3 WEINSTEIN, supra note 10, ,r 613[04] (1975), in United States v. International
Bus. Machs. Corp., 432 F. Supp. 183 (S.D.N.Y. 1977), the court, in requiring
prior disclosure, stated that two circuits have taken the position that prior disclosure
is required by rule 613(b). The two cases cited at 432 F. Supp. at 140 n.10-United
States v. Truslow, 530 F.2d 257 (4th Cir. 1975), and United States v. Wright, 489
F.2d 1181 (D.C. Cir. 1973)-although involving trials occurring prior to the effec-
tive date of the federal rules, do in fact support the proposition for which they are
cited. For further discussion of cases involving a foundation requirement under rule
613(b), see note 132 infra.
amined only about the underlying facts (category (1) questions),

no such opportunity to opposing counsel is provided. Similarly,
questions falling within categories (2) or (3) above seem inade-
quate to satisfy the requirement that the witness' attention be suffi-
ciently focused upon the prior inconsistent statement. Whether
cross-examination employing a partial but not full foundation-
category (4) questioning-provides the witness the requisite oppor-
tunity to explain or deny so that extrinsic proof is permitted without
reference to his continued availability would likely depend upon the
content of and circumstances surrounding the question asked. For
example, cross-examination that first involves the time, place, and
circumstances of a prior conversation but that then inquires merely
whether a particular subject matter was discussed would probably
be insufficient. However, an inquiry such as "Didn't you previously
tell a police officer that you didn't see the accident happen?" would
seem to apprise the witness adequately. Of course, cross-examining
counsel, by introducing at the appropriate juncture extrinsic evidence
of the prior statement while insuring the continued availability of the
witness, could protect against the possibility that the court would con-
clude that the questions asked upon cross-examination did not raise
the proper opportunity to explain or deny. In any event, it is im-
portant to realize that, if opposing counsel does recall the witness
for denial or explanation followed by cross-examination relating
thereto, the prior statement in one form or another will have been
placed before the jury on as many as five separate occasions-cross-
examination, extrinsic evidence, cross-examination upon the extrinsic
evidence, recall of the witness for explanation, and cross-examina-
tion again.
Rule 613(b) not only enables examining counsel to place the
prior inconsistent statement before the trier of fact on multiple occa-
sions, but it also permits the party impeaching the witness to delay
the witness' denial or explanation. For example, if the content of
the prior inconsistent statement is first introduced through extrinsic
evidence as part of defendant's case-in-chief, plaintiff wi11 in all
likelihood be foreclosed from presenting the witness' explanation
or deni~ until rebuttal. 123 This delay, which may well be sub-
stantial, could seriously impair the plaintiff's ability to rehabilitate the
witness.· Moreover, in addition to the fact that the mere mention
of the statement in rebuttal permits it to be scrutinized yet another
123. While rule 611 provides the court with discretion to control the order of wit-
ness examination, it is unlikely that an explanation will be permitted prior to rebuttal.
time upon further cross-examination of the witness, it seems clear

that even if plaintiff's counsel does choose to offer an explanation,
[g]iven such time to crystallize, it is questionable whether the jury's
estimation of the witness can be restored to its former status by his
belated explanation. Conceivably, the jury may be even more prone
to discount the belated explanation knowing that the witness has had
the opportunity to confer with counsel after the evidence of the incon-
sistent statement was presented. 124
Cross-examining counsel wishing to highlight a prior inconsistency
in this manner may now do so, for rule 613(b) provides that the
witness need no longer be given the chance to deny or explain his
prior statement before admission of extrinsic evidence. Moreover,
under rule 613(b) a party wishing to emphasize an inconsistent
statement he believes the witness will admit making may avoid the
danger that a court will exclude extrinsic evidence of the prior state-
ment125 by simply introducing the extrinsic evidence before the wit-
ness is provided an opportunity to admit, deny, or explain. 126
124. Note, Modification of the Foundational Requirement for Impeaching Wit-

nesses: California Evidence Code Section 770, 18 HAsnNGS L.J. 210, 219 (1966).
See also Advisory Committee Note to Proposed Rule 106, 56 F.R.D. 183, 200 (1972).
125. See, e.g., Dilley v. Chesapeake & 0. Ry., 327 F.2d 249, 251 (6th Cir.),
cert. denied, 379 U.S. 824 (1964). McCormick says that exclusion of extrinsic evi-
dence following the witness' admission was the prevailing and better view, EVIDENCE,
supra note 12, § 37, at 73; but see 3A J. WIGMORE, supra note 10, § 1037, at 1044-
46. See also text at notes 1107-12 supra.
126. 3 WEINSTEIN, supra note 10, ~ 613[04] at 613-17 to -19, asserts that
rule 613 may facilitate counsel in putting certain improperly authenticated evidence
before the jury. In Dickinson Supply, Inc. v. Montana-Dakota Util. Co., 423 F.2d
106 (8th Cir. 1970), a pre-Federal Rules decision, counsel sought to impeach a wit-
ness with a written statement the witness had signed. The witness admitted that the
signature was his, but then denied making the statement. While the jury was absent,
it was revealed that the witness' supervisor had prepared the statement based on
other persons' accounts of the incident. The court refused to allow the statement
to be used for impeachment because the impeaching party could not prove that the
witness actually made the remarks contained in the written declaration.
3 WEINSTEIN, supra note 10, ~ 613(04], at 613-18, asserts that under rule 613
the statement in Dickinson Supply could have been read to the jury in the process
of authenticating the witness' signature long before the fact that the witness had not
made the statement was discovered; thus, only a jury instruction to disregard the
statement, a device of questionable effectiveness at best, would have been available
to undo the harm. At the point when the extrinsic evidence was to be introduced,
however, it would seem that opposing counsel could present the same evidence in-
dicating that the witness did not actually make the statements recorded in the report.
In fact, traditional foundation procedure, when the full contents of the statement may
be brought to the jury's attention as part of cross-examination prior to the introduc-
tion of extrinsic evidence, presents a greater danger that unauthenticated statements
will come before the jury. Under rule 613(b), if extrinsic evidence is offered before
any foundation is laid, questions regarding the authenticity of the statement should
be resolved before the jury becomes aware of its contents.
D. A Proposed Amendment to Rule 613

Having analyzed the provisions of rule 613, it is appropriate to
consider the extent to which they improve upon prior federal prac-
tice. Clearly a major purpose of rule 613 was to eliminate the re-
strictions that the rule of the Queen's Case placed upon cross-
examination of a witness about a prior inconsistent written statement.
Rule 613(a) now provides unequivocally that the contents of a wit-
ness' prior inconsistent statement, whether written or not, need not
be disclosed to him at the time of cross-examination about the state-
ment. The requirement for disclosure of the statement to opposing
counsel guards against abuse of the rule. In line with the essentially
unanimous judgment of the commentators, rule 613(a) thus con-
cludes that any beneficial effect that accrues from shielding the jury
from a witness' inaccurate testimony concerning his earlier writings
is outweighed by the limitations the procedure places on the effec-
tive use of prior inconsistent statements to test the witness' credibil-
ity that results from the curtailment of the·element of surprise.
The adoption of rule 613(a) is clearly both salutary and unsur-
prising, since the rule is essentially a codification of prior federal
practice. 127 The same, however, cannot be said of rule 613(b).
Nor is it clear whether any justification exists for the rule's substan-
tial departure from the foundation rule as previously applied in the
federal courts. The Advisory Committee Note suggests that rule
613(b) will facilitate the questioning of collusive witnesses by per-
mitting several such witnesses to be examined before disclosure of
a joint prior inconsistent statement. 128 That rather infrequent bene-
fit hardly seems a plausible explanation for rule 613(b)'s significant
modifications of traditional federal practice. Rather, it would seem
that the rationale for rule 613(b) derives from a combination of two
factors: (1) that rule 801(d)(l)(A), as proposed by the Advisory
Committee, gave substantive effect to all prior inconsistent state-
ments, and (2) perceived lawyer incompetence.
To understand the apparent reasoning of the Advisory Commit-
tee, one must keep in mind that, if prior inconsistent statements were
admissible only for purposes of impeachment, the foundation re-
quirement would foster the use of such statements to affect credibil-
ity while discouraging the trier of fact from giving them substantive
consideration. In practice, the foundation requirement served to
127. See text at notes 94-100 supra.

128. Advisory Committee Note to Proposed Rule 613, 56 F.R.D. 183, 279
(1972).
place a prior statement in juxtaposition to the testimony at trial of

the witness sought to be impeached. In addition, by enabling the
witness to admit a prior statement as his own, the foundation require-
ment reduced the likelihood that extrinsic evidence of the prior in-
consistent statement would be introduced, evidence that is much
harder for the jury not to accept substantively. Under the scheme
of the proposed federal rules, however, all prior inconsistent state-
ments were to be admissible as substantive evidence pursuant to rule
801(d)(l)(A). With the substantive admissibility of all such prior
statements, this objective fostered by the foundation requirement was
no longer relevant, and a practical consideration became paramount.
Trial lawyers, for some unknown reason, often forget or, in some
cases, never learned how to lay a proper foundation for extrinsic evi-
dence. The Advisory Committee politely referred to such forgetful-
ness or incompetence as the "dangers of oversight." With substan-
tive admissibility, these "oversight[s]" could be legitimated by per-
mitting introduction of prior inconsistent statements at any time so
long as the witness was eventually given an opportunity to deny or
explain. In short, it was easier to switch than fight.
As enacted by Congress, however, rule 80l(d)(l)(A) does not
permit the substantive admission of all prior inconsistent statements.
Thus, the traditional foundation requirements' utility in encouraging
the jury to consider the prior inconsistent statements solely as an in-
dication of credibility and not as substantive evidence remains rele-
vant, and accordingly the requirements should be resurrected. Since
all prior inconsistent statements are not substantively admissible,
counsel should not have the unfettered right to introduce extrinsic
evidence of such a statement before the witness has an opportunity
to admit, deny, or explain the declaration. This procedure permits
a prior statement to be placed before the trier of fact on multiple
occasions and under circumstances encouraging the statement's ac-
ceptance as substantive evidence, and therefore it should be avail-
able only as the interests of justice require. 129
In summary, the provisions of rule 613(a) largely codify existing
federal practice regarding cross-examination about a witness' oral and
written prior inconsistent statements. Rule 613 (b) takes a step for-
ward in rejecting strict adherence to the traditional founda.tion re-
129. As set forth in the Advisory Committee Note, the "interests of justice"
would require ignoring the foundation requirements if the witness after testifyi!lg be-
came unavailable by the time the prior statement was discovered or if counsel wishes
to examine several collusive witnesses before disclosing a joint prior inconsistent
statement. 56 F.R.D. at 278-79,
quirements and in expressly recognizing the courts' authority to

dispense with those requirements where the "interests of justice"
so require. It is apparent, however, that rule 613 (b )'s other liberali-
zations of the traditional foundation rule are ill-conceived. The
Advisory Committee Note states that rule 613(b) preserves the
traditional foundation requirement with "some modifications." 130
It does nothing of the kind. Rule 613 (b) removes the very heart
of the traditional foundation requirement-that the witness be given
an opportunity to deny or explain the prior statement be/ore evidence
of the prior statement will be admitted-a requirement facilitating
the introduction of prior inconsistent statements solely for the pur-
.pose of impeachment. 131 Given Congress' amendment to rule
801(d)(l)(A), the opportunity to explain or deny should occur prior
to the introduction of any extrinsic evidence. Accordingly, rule
613 (b) should be amended to state:
Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible until the witness is afforded an opportunity to explain or
deny the same and the opposite party is afforded an opportunity to
interrogate him thereon, unless the interests of justice otherwise re-
quire. This provision does not apply to admissions of a party-
opponent as defined in rule 801(d)(2). 132
N. RULE 607-lMPEACHING ONE'S OWN WITNESS
A. The Dilemma
A detailed discussion of the historical development of the
voucher rule and its rejection in the provisions of the Federal Rules
130. Id.
131. ·Professor Cleary, who served as the reporter to the committee, suggested
that acceptance of rule 613(b) was less than whole-hearted even prior to the amend-
ment to rule 801(d)(l)(A):
In my view, the existing practice would continue in general to be followed
under the rule. It is convenient and effective to raise the matter on cross-exam-
ination, and doing so would avoid problems that might ultimately arise if wit-
nesses become unavailable before the end of the trial. The rule ought, however,
to remain as drawn, leaving the practical approach to the good sense of the prac•
titioner.
Hearings Before the Subcomm. on Criminal Justice on Proposed Rules of Evidence,
93d Cong., 1st Sess., ser. 2, at 74-75 Supp. (1973).
The requirement that a proper foundation be laid prior to the introduction of ex-
trinsic evidence unless the interests of justice require otherwise is currently applied
with respect to establishing bias. United States v. Di Napoli, 557 F.2d 962 (2d Cir.
1977).
132. Cf. MINN. R. Evm. 613(b) (requiring that witness be given opportunity to
explain before prior inconsistent statement offered into evidence).
Several cases decided since the adoption of the Federal Rules but involving trials
that took place before the l\ules became effective have cited rule 613(b) as consis-
tent with their holdings. In Strudl v. American Family Mut. Ins. Co., 536 F.2d 242
(8th Cir. 1976), a diversity case involving a wrongful death action, the court, though
apparently applying Nebraska evidence law, quoted rule 613 (b) and part of the Ad-
visory Committee Note to demonstrate that no foundation was required before the
introduction of evidence of a witness' prior inconsistent statement. Since the im-
peaching party recalled his opponent's witness and questioned her concerning her
prior statement, the court concluded that the witness had "full opportunity to explain
or deny her alleged inconsistent statements." 536 F.2d at 244-45.
In United States v. Inslow, 530 F.2d 257, 264 (4th Cir. 1975), another pre-Rules
case, the impeachment procedure employed was found to satisfy the traditional rule
rejected in Strudl, though the court in a footnote stated that "[o]ur holding is consist-
ent with Federal Rules of Evidence, Rule 613(b)." 530 F.2d at 264 n.4. The hold-
ing was in fact consistent with the rule only to the extent that a foundation satisfying
the traditional rule would automatically satisfy rule 613(b).
Several recent cases have applied rule 613(b) after its effective date. Two cases
from the Eighth Circuit found the rule satisfied when the witness was given an oppor-
tunity to explain or deny his prior statements before extrinsic evidence was intro-
duced in accord with prior federal practice. United States v. Rogers, 549 F.2d 490
(8th Cir. 1976); Osborne v. United States, 542 F.2d 1015 (8th Cir. 1976). The
only post-adoption case to deal with rule 613 (b) at any length is United States v.
Barrett, 539 F.2d 244 (1st Cir. 1976), in which the defendant was charged with inter-
state transportation and sale of stolen postage stamps. The government's witness,
one Adams, had testified that the defendant had admitted his involvement in the
crime shortly after his arrest. Defense counsel then called two witnesses who testi-
fied that Adams had told them that it was a shame that the defendant had been ar-
rested because he knew the defendant was innocent. The trial judge excluded this
testimony, but the appellate court reversed, rejecting the government's argument that
a proper foundation had not been laid. The court noted that rule 613(b) "relaxed
the traditional foundation rule," and thus the rule required only that the witness be
afforded at some time an opportunity to explain or deny and that the opposing party
be given a chance to interrogate the witness further. 539 F.2d at 254-55. After
quoting extensively from the commentary of the reporter of the Federal Rules, the
court stated:
The foregoing indicates that while good practice still calls for the laying of a
foundation, one is not absolutely required. It would have been desirable for de-
fense counsel to have asked Adams on cross-examination if he had made the pur-
ported statement to Delaney. And where this was not done, if Adams had later
become unavailable to explain or deny, the court might properly in its discretion
have refused to receive the testimony in question. Here, however, the court dis-
missed the evidence out of hand and made no inquiry into Adams' availability.
On the present record, we have no basis for assuming that he was not available,
or even that judicial economy and convenience would have justified the court in
ruling as it did. We hold, therefore, that it was error to exclude the testimony.
539 F.2d at 255-56. Given the court's suggestion that as a matter of "good practice"
the foundation should generally precede the impeaching evidence, it would seem that,
under Barrett, if a party seeks to introduce impeaching statements the trial judge
should assure himself that the witness to be impeached is available for recall. If he
is not available or, as Barrett suggests, if recall would result in significant delay, the
court should, in its discretion, exclude the evidence.
It is, of course, still too early to draw authoritative conclusions concerning the
effect of rule 613 on the procedure for impeachment with prior inconsistent
statements. It does appear, however, that the courts may encourage counsel to follow
the traditional federal foundation rule of giving the witness a chance to deny or
explain his prior statement before introducing extrinsic evidence by excluding such
evidence when the witness under attack is no longer available or the recall procedure
would foster undue delay. See FED. R. Evm. 6ll(a) & 403; note '122 supra.
The final sentence of rule 613 (b) provides specifically that its provisions do not
apply to admissions, as defined in rule 801(d)(2). Although the Advisory Commit-
tee Note makes no mention of the final sentence, the apparent intention of the com-
of Evidence regarding examination and impeachment of a party's

own witness has been presented elsewhere. 133 Accordingly, only a
brief summary is provided herein. Federal courts, aware that the
traditional rationale underlying the voucher rule did not withstand
analysis, nevertheless came to appreciate that the rule prohibiting
a party from impeaching his own witness had certain beneficial ef-
fects. Although recognizing that prior inconsistent statements used
by a party to impeach his own witness were admissible solely for
the purpose of impeachment and not as substantive evidence, many
courts and commentators realized that limiting instructions were in-
effective and that juries would consider such evidence substan-
tively.134 Prior to the adoption of the Federal Rules of Evidence,
federal courts permitted impeachment of a party's own witness only
where the witness' testimony both surprised and affirmatively dam-
aged the calling party. Application of the voucher rule in all but
these circumstances was thought to prevent a party from placing
prior inconsistent statements before the jury under the guise of im-
peachment, while still permitting impeachment where it was truly
needed. 135
Although the voucher rule came to be accepted as necessary to
prevent jury misuse of a witness' prior inconsistent statement, rule
801(d)(l)(A) as initially proposed nullified that rationale: with
substantive admissibility of all prior inconsistent statements, juries
would be allowed to give such statements substantive effect. Ac-
cordingly, rule 607, which was drafted upon the supposition that
mittee was to eliminate even the slightest possibility that the provisions would be con•
strued as applicable to admissions. In this respect, rule 613(b) conforms to the vast
majority of decisions under the common law. 4 J. WIGMORB, supra note 10, § 1051.
All things considered, it is unclear what motivated the inclusion of the provision
regarding admissions in the rule itself rather than in the Advisory Committee Note.
Based upon the resulting language of the rule, one could argue that statements other-
wise admissible substantively either as a hearsay exception pursuant to rule 803 or
as not hearsay pursuant to the provisions of rule 801 (other than either 801 ( d )( 1)
(A) or 80l(d)·(2)) are subject to the requirements of rule 613(b) if in fact they
are inconsistent with in-court testimony of the witness. This contention is without
merit. Rule 613(b) is intended to apply only to those prior inconsistent statements
substantively admissible solely by reason of rule 80l(d)(l)(A) or admissible for im-
peachment purposes only pursuant to rule 607. Thus, rule 613(b) is inapplicable to
statements substantively admissible without reference to the fact that the statement
also happens to be inconsistent with the in-court testimony of the witness.
133. See Graham, supra note 44.
134. See, e.g., Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson,
J., concurring); United States v. De Sisto, 329 F.2d 929, 933 (2d Cir.), cert. denied,
377 U.S. 979 (1964); McCORMICK:, supra note 10, § 59; Morgan, supra note 10, at
193 (calling the practice a "pious fraud").
135. Graham, supra note 44, at 979-80.
all prior inconsistent statements would be substantively admissible,
rejects the voucher rule in the following language:
Who May Impeach
The credibility of a witness may be attacked by any party, includ-
ing the party calling him. 136
As previously stated, Congress eventually amended rule 801(d)
(l)(A) to limit substantive admissibility of prior inconsistent state-
ments to those statements originally made in testimonial form.
There was, however, no corresponding amendment to rule 607 to
bring it back into conformity with this prior federal practice, and thus
no express limitation presently exists on the calling party's ability to
place in evidence a witness' prior inconsistent statement. 187 Al-
136. FED. R. Evm. 607.

137. Although rule 607 on its face places no restrictions on a party's ability to
impeach his own witness, some possibility exists that courts will interpret the rule as
retaining the traditional requirements of surprise and affirmative damage. In United
States v. Morlang, 531 F.2d 183 (4th Cir. 1975), the Fourth Circuit reversed a con-
viction at a pre-Rules trial because the government had been allowed to introduce for
purposes of impeachment extrinsic evidence of a prior inconsistent statement by its
own witness that inculpated the defendant. The court noted that the government was
"fully aware" that the witness' courtroom testimony would tend to exonerate the de-
fendant and, although acknowledging that the voucher rule had been rejected in the
Fourth Circuit, concluded that
it has never been the rule that a party may call a witness where his testimony
is known to be adverse for the purpose of impeaching him. To so hold would
permit the government, in the name of impeachment, to present testimony to the
jury by indirection which would not otherwise be admissible. The courts have
consistently refused to sanction such a practice.
531 F.2d at 189. As the trial had taken place before the adoption of the Federal
Rules, the court was not required to decide whether rule 607, read in light of the
revision in rule 801, required that holding. 531 F.2d at 189 n.14. The court's opin-
ion on the matter, however, is perhaps suggested by its statement that "[t]he over-
whelming weight of authority is, however, that impeachment by prior inconsistent
statement may not be permitted where employed as a mere subterfuge to get before
the jury evidence not otherwise admissible." 531 F.2d at 190 (footnote omitted).
Though Morlang, as the Morlang court itself suggested, would seem to have little
precedential value with respect to the interpretation of rule 607, 531 F.2d at 189 n.14,
the Eighth Circuit, in United States v. Rogers, 549 F.2d 490 (8th Cir. 1976), a case
controlled by the Federal Rules, took pains to distinguish the Morlang decision in
holding proper the government's impeachment of its witness who at trial denied any
memory of a prior inconsistent statement he had allegedly given inculpating both
himself and the defendant. Finding the elements of surprise and affirmative damage
that had been absent in Morlang, the court stated:
In contrast to the witness in United States v. Morlang, ••• Baker had never,
before trial, taken the position that he could not identify appellant or that he
could not recall if appellant was one of the robbers. This doubt about appel-
lant's participation expressed by one of the actual participants was indeed poten-
tially injurious to the government, and it was of sufficient relevance to justify
impeachment by use of the inconsistent statement.
549 F.2d at 497.
However, despite its explicit finding that the government had been surprised and
damaged by the witness' testimony, the court refrained from any conclusion about the
proper interpretation of rule 607, noting only that it was "not at all sure" that sur-
though juries will be instructed to give no substantive weight to a

witness' prior statement unless it was ~tially made in testimonial
form, the effectiveness of such an instruction is, as discussed
above, 138 highly doubtful.
A recent federal case illustrates how present rule 607 may nullify
the safeguards that Congress intended to place on the use of prior
inconsistent statements under rule 801(d)(l)(A). In United
States v. Alvarez, 130 the defendant was prosecuted for attempting to
smuggle 1600 pounds of marijuana across the Rio Grande. At trial,
the government called as a witness one Villareal, who had previously
confessed his participation in the scheme and had allegedly given
a statement to government agents placing defendant Alvarez at the
scene of the crime. Prior to the trial, Villareal had denied making
prise under the new rule remained a prerequisite to a party's impeachment of its own
witness.
Another case controlled by the new rules in which the court focused upon the
element of surprise, though not expressly holding it to be required under rule 607, is
United States v. Garcia, 530 F.2d 650 (6th Cir. 1976). In Garcia, a government
witness who had allegedly made prior statements inculpating the defendant denied in
his courtroom testimony any knowledge of the defendant's guilt. Over defense objec-
tions that the government was impeaching its own witness, the government was per-
mitted to introduce extrinsic evidence of the alleged prior inconsistent statements. In
upholding that impeachment as proper, the Sixth Circuit, although not purporting to
interpret rule 607, emphasized the government's surprise, noting that up until its wit-
ness' appearance at trial the government believed his testimony would be consistent
with his alleged prior statements.
Three other recent cases applying rule 607 tend to rebut any inference from Mor-
lang, Rogers, and Garcia that courts will interpret the rule as retaining the surprise
and affirmative damage requirements of prior federal practice. In United States v.
Carter, No. 75-2216 (4th Cir. March 13, 1976), an unreported decision noted at 532
F.2d 752, the government called to the stand the defendant's brother, who denied his
own involvement in the robbery attempt with which the defendant was charged. Sub-
sequently the government impeached the witness with evidence of a prior inconsistent
statement and by drawing from him an admission that he had pleaded guilty to state
charges that he was an accessory after the fact to the robbery attempt. Although
it is unclear whether the government was surprised by the testimony of the defend-
ant's brother, the Fourth Circuit, in holding the impeachment proper, suggested that
the question was irrelevant. The court stated first that ''Federal Rule of Evidence
607 provides that the party who calls a witness may impeach his testimony," and then
noted that "United States v. Morlang, - F.2d -, No. 74-2071 (4th Cir. Dec. 30,
1975), held that in the absence of surprise a party may not impeach his own witness,
but that case is inapposite here, for it was not decided under the Federal Rules of
Evidence."
United States v. Alvarez, 548 F.2d 542 (5th Cir. 1977), provides an even clearer
statement that rule 607 will not be read to place limitations on a party's ability to
impeach its own witness. See text at notes 139-40 infra. Accord, United States v.
Palacios, 556 F.2d 1359, 1363 (5th Cir. 1977) ("[u]nder Rule 607 the government's
impeachment of [the witness] by her prior inconsistent statement was proper without
a showing of surprise").
138. See notes 21-23 & 134 supra and accompanying text.
139. 548 F.2d 542 (5th Cir. 1977).
that statement, and he reiterated that position in his subsequent testi-

mony at trial. Although there was no question that the government
was not surprised by- the testimony it elicited from Villareal, it was
permitted to call the narcotics agents in whose presence Villareal had
allegedly incriminated Alvarez, and they testified about Villareal's
purported statement. The jury, which had been instructed to con-
sider the agent's testimony only as evidence of Villareal's credibility,
subsequently found Alvarez guilty. Upon Alvarez' appeal, the Fifth
Circuit summarily rejected the contention that the government's im-
peachment of Villareal was improper, ruling that the issue was "fore-
closed by Rule 607. " 140
Given the notorious inability of juries to ignore substantively
evidence introduced solely for purposes of impeachment, the Fifth
Circuit's application of rule 607 creates the precise danger Congress
feared when it limited the substantive admissibility of prior inconsis-
tent statements under rule 801(d)(l)(A)-namely, that a defen-
dant might be convicted on th~ basis of an unverified out-of-court
statement. The Fifth Circuit's ruling vindicates Congress' concern in
this area and requires reimposition of the sur-prise and affirmative
damage prerequisites to a party's impeachment of his own witness.
As developed by the federal courts prior to the adoption of the new
rules of evidence, those twin prerequisites shield the jury from prior
inconsistent statements not substantively admissible in situations
where the interests of justice so require. As I have stated elsewhere,
[i]n the absence of both surprise and damage, impeachment of one's
own witness is inappropriate. If the witness does not give affirm-
atively damaging testimony, the {party] simply does not need to
attack his credibility. If the witness' testimony does not surprise
the [party], it should not be permitted to impeach his testimony by
placing before the jury the witness' prior statement because it could
have refrained from eliciting the statement it seeks to impeach. The
requirement of surprise would prevent the [party] from consciously
introducing affirmatively damaging testimony under the only cir-
cumstances in which it would do so-when the potential effect on
the jury of the prior inconsistent statement outweighs the affirm-
atively damaging effect of the elicited testimony. 141
The most recent supplement to Weinstein's Evidence suggests
a different approach to the problem of preventing abusive practice
under rule 607:
Instead of placing so much emphasis on the motive of the prof-
feror, an approach more consistent with the underlying policy of the
140. 548 F.2d at 543 n.3.

141. Graham, supra note 44, at 979-80.
federal rules of evidence would be to analyze the problems in terms

of Rule 403-is the probative value of the impeaching evidence out-
weighed by its prejudicial impact? 142
In practice, the balancing test of rule 403 would prove inferior
to the simple surprise and damage requirement for several reasons.
Initially, it is questionable in light of the clear language of rule 607
whether a judge would even consider balancing pursuant to rule 403.
Moreover, ad hoc balancing requires a judge under the pressures of
a trial situation to sort out and weigh the probative value of evidence
upon witness credibility against the possibility that it will confuse the
issues or mislead the jury. Accordingly, balancing is unlikely to pro-
duce uniform or predictable results. In addition, two of the key fac-
tors suggested by Weinstein's Evidence, probative value and prejudi-
cial impact, appear to vary directly: the more probative a prior state-
ment is of credibility, the greater the likelihood that the jury will
improperly view it as substantive evidence; the less probative of
credibility, the less the risk that the statement will be improperly
considered. 148 Finally, balancing pursuant to rule 403 is likely to
be time-consuming and of limited effectiveness in screening the jury
from potentially prejudicial prior statements. As Weinstein's Evi-
dence envisions the process, the judge would make his rule 403 rul-
ing only after the witness had been confronted with his alleged prior
statement in the presence of the jury. 144 In order to determine the
probative value of the alleged prior statement, the judge would then
inquire into the degree of certainty that the statement was made.
This inquiry, which would, of course, take place initially outside the
jury's presence, would often cause substantial delay, for unless ex-
trinsic evidence could be presented on the existence of the prior
statement, the application of rule 403 balancing would be ineffec-
tive. Moreover, it is not clear that such procedures would ade-
quately prevent prejudice, since the jury would become aware of the
prior inconsistent statement before the court initiated its inquiry and
since the court would most likely find, given the availability of a
142. 3 WEINSTEIN, supra note 10, ,r 607[01] at 20 (1976 Cum. Supp.).

143. See Graham, The Relationship Among Federal Rules of Evidence 607, 801
(dXIXA), and 403: A Reply to Weinstein's Evidence, 55 TExAs L REV. 573, 579
(1977).
144. 3 WEINSTEIN, supra note 10, ,r 607[01] (1976 Cum. Supp.). According
to Weinstein, "[v]ery seldom are evidence questions ruled upon by a pre-trial judge.
Where discretion is involved, it is usual to postpone decision until the trial. • • .
Often it is not until the trial that the need for a special type of hearsay becomes
apparent." Weinstein, Alternatives to the Present Hearsay Rule, 44 F.R.D. 375, 380
(1968).
limiting instruction, that the probative value of the impeaching evi-

dence upon credibility outweighed any potential prejudice.
On the other hand, the surprise and affirmative damage approach
utilizes criteria developed over the years on a case-by-case basis.
The approach is easier to apply and more predictable than rule 403.
The criteria of surprise and damage exclude only those-and all of
those-statements that the jury should not legitimately consider and,
if properly applied, 145 keep all reference to the existence of the prior
statement from the jury. 146 In summary, in all civil cases and in
those criminal cases in which the government seeks to impeach its
own witness, 147 both current rule 80l(d)(l)(A) and proposed
amended rule 80l(d)(l)(A) mandate reimposition of the tradi-
tional requirements of surprise and affirmative damage for a calling
party to impeach his own witness.
C. The Proposal
Rule 607 should be amended to state:
The credibility of a witness may be attacked by any party, except
that the credibility of a witness may be attacked by the party calling
the witness by means of a prior inconsistent statement only upon a
showing of surprise and affirmative damage. The foregoing excep-
tion does not apply to impeachment by means of a prior inc0nsis-
tent statement admitted pursuant to Rule 80l(d)(l)(A), 80l(d)
(2), or 803.
Clarification is in order about how proposed rule 607 applies to
several common situations. The requirement of surprise may be in-
appropriate in criminal cases where impeachment is by the criminal
defendant: it could impede the defendant's right to confront the wit-
ness, to present a defense, and to produce witnesses on his own
behalf. 148 Moreover, whether the prerequisite of surprise may con-
stitutionally be held applicable to the criminal defendant is still
unclear; resolution of this issue awaits development upon a case-by-
case basis. 149 It should also be noted that the· requirements of sur-
145. See generally Graham, supra note 44, at 996-1005.

146. There are constitutional ramifications to any limitations on the ability of a
criminal defendant to impeach his own witness by use of prior inconsistent state-
ments. A prerequisite of surprise seems unwarranted in light of the criminal defend-
ants' constitutional right to confrontation, to present a defense, and to produce wit-
nesses on his own behalf. See Chambers v. Mississippi, 410 U.S. 284 (1973); Gra-
ham, supra note 44, at 984-86. Since this requirement is constitutional, it could be
recognized by courts without specifically incorporating it into rule 607 itself.
147. See note 146 supra.
148. See note 146 supra and accompanying text.
149. See Graham, supra note 44, at 985-86. The Supreme Court granted cer-
prise and affirmative damage apply not only to the calling party but
also to all parties similarly situated. Thus, a coplaintiff or codefend-
ant similarly situated \\'.ith respect to that aspect of the witness' testi-
mony sought to be impeached would be subject to the same restric-
tions. Rather than include this gloss in the rule itself, it is suggested
that rules 611(a)(l) and 403 presently provide ample authority for
the court to prohibit such attempted impeachment.
Of course, impeachment of a party's own witness through a show-
ing of bias, interest, prejudice, lack of opportunity to observe, or
faulty recollection would still be permissible under proposed rule
607. With respect to impeachment by acts of misconduct (rule
608(b)) and prior convictions (rule 609), surprise and affirmative
damage should generally be required. 150 However, considering that
rules 403 151 and 611(a) as well as rules 608(b) and 609 provide
ample authority for imposition of those prerequisites, it seems unne-
cessary to include this limitation in the language of rule 607. More-
over, the absence of such restrictive language will permit a calling
party to impeach his own witness by use of prior conviction under
circumstances where the prerequisites of surprise and damage seem
inappropriate, such as where the prosecutor wishes to divulge upon
direct examination that his witness, a prior codefendant, had pled
guilty to a particular offense arising out of the circumstances for
which the defendant is now being tried. 152 Although one could
tiorari in Maness v. Wainwright, 512 F.2d 88 (5th Cir. 1975), c~rt. gra11ted, 429
U.S. 893 (1976), in which one issue was whether the trial court's refusal to allow the
criminal defendant to impeach his own witness with prior inconsistent statements vio-
lated the defendant's constitutional right to a fair trial, but the Court then dismissed
certiorari as improvidently granted. 430 U.S. 550 (1977). See also Chambers v.
Mississippi, 410 U.S. 284 (1973), discussed i11 Graham, supra note 44, at 941-46,
984-86.
150. See Graham, supra note 44, at 982-91.
151. In the congressional hearings concerning rule 609, Judge Friendly commented
upon the relation of rule 403 to specific provisions of the Federal Rules of Evidence:
You have the problem: Does [Rule 403] apply when there is a specific rule
on the subject? This just says relevant evidence may be excluded if it has this
effect. But then somebody is going to argue, this other rule dealt very specific-
ally with the question and rule 403 is out. I don't know what the answer would
be. It is just another illustration that this code, far from settling problems, cre-
ates a great many of them.
Heari11gs on Proposed Rules of Evidence Before the Special Subcomm. on Reform
of Federal Criminal Laws of the House Comm. on the Judiciary, 93d Cong., 1st Sess.,
ser. 2, at 252 (1973).
152. Although it is proper for the state to elicit on direct testimony the fact that
its witness has pleaded guilty to a charge arising from the same event for which the
defendant is on trial, whether the prosecution should be permitted to itself bring out
other convictions of the witness seems best handled on a case-by-case basis. Relevant
considerations would be the same as those underlying imposition of the surprise and
affirmative damage requirements. See United States v. Chamley, 376 F.2d 57 (7th
August 19771 Employing Inconsistent Statements 1619
argue that such disclosure constitutes development of background in-

information153 customarily introduced to aid the trier of fact's under-
standing, it is not clear that such a contention would be accepted
if an explicit restriction were included within rule 607.
Finally, it is not intended that rule 607 be applied to foreclose
a party from fully exploring the basis for the testimony of an op-
ponent's expert witness. Pursuant to rule 705, 164 an expert may
testify without prior disclosure of the basis of his opinion. In addi-
tion, rule 703 155 provides that an expert may rely on nonadmitted
and even inadmissible information to form his opinion if experts in
the field reasonably rely on such information. If the party opposing
the testimony of the expert desires to explore the basis of the
expert's opinion, he may of course do so upon cross-examination of
the expert himself.156 But what if the opposing party wishes to
call at trial the witness upon whose information the expert had
relied? Under such circumstances, the opposing party should be
permitted to impeach the witness-by use of prior inconsistent state-
ments and any other impeachment tool-without reference to the
prerequisites of surprise and affirmative damage. 157
V. CONCLUSION
As submitted to Congress, the Federal Rules of Evidence dealt

Cir.), cert. denied, 389 U.S. 898 (1967); United States v. Dardi, 330 F.2d 316, 332-
33 (2d Cir.), cert. denied, 379 U.S. 845 (1964); United States v. Aronson, 319 F.2d
48, 51 (2d Cir.), cert. denied, 375 U.S. 920 (1963). United States v. Freeman, 302
F.2d 347,350 (2d Cir. 1962), cert. denied, 375 U.S. 58 (1963), states:
Of course it was proper for the government to bring out on direct examina-
tion the criminal record of its witness. . . • Not to have done so would surely
have subjected the prosecution to criticism. The matter of informing the court
and jury about information of such clear relevance as the criminal record of a
witness called by the prosecution is not something which is to be reserved for
the pleasure and strategy of the defense. Whatever the rule may be with respect
to the permissible limits for cross-examination of a witness or a defendant, . . .
it is usually proper and desirable that the party calling a witness with a criminal
record should elicit such information on direct examination.
There may be circumstances where, on proper request of the defense, the trial
judge should limit, or even bar such testimony, or allow it only under cautionary
instructions because the prejudice to the defendant of the witness' admission of
crime implicating the defendant would outweigh the advantages of a full dis-
closure of the witness' criminal background. Here we find that there was no
likelihood of prejudice.
See also Graham, supra note 44, at 982-83.
153. See Advisory committee Note to Proposed Rule 401, 56 F.R.D. 183, 215-
16 (1972).
154. FED. R. EVID. 705.
155. FED. R. EVID. 703.
156. Cf. Graham, Discovery of Experts Under Rule 26(bX4) of the Federal
Rules of Civil Procedure: Part Two, An Empirical Study and a Proposal, 1977 U.
ILL. L.F. 169, 196 (1977) (general discussion of examination of expert witnesses).
151. See CAL. EVID. CODE§ 804 (1966).
consistently with all aspects of the use of prior inconsistent state-

ments. The proposed rules allowed substantive admissibility of all
prior inconsistent statements, significantly relaxed the foundation re-
quirement, and permitted impeachment of a party's own witness.
Congressional action, however, disturbed this coordinated pattern of
treatment. This disruption must now be corrected by appropriate
amendments to rules 613 and 607. Moreover, although Con-
gress expressed a valid concern in addressing the question of sub-
stantive admissibility of prior inconsistent statements pursuant to
rule 801(d)(l)(A), it failed to strike an optimum balance between
substantive admissibility and the rights of the criminal defendant.
Rule 80l(d)(l)(A) should be amended to provide for the substan-
tive admissibility of prior inconsistent statements of an in-court de-
clarant possessing personal knowledge of the underlying events if
there is a high degree of certainty that the statements were in fact
made.

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Employing Inconsistent Statements for Impeachment and as

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Part of the Evidence Commons

The proposed Federal Rules of Evidence, 1 which were drafted

* Professor of Law, University of Illinois. B.S.E. 1964, University of Pennsyl-

failed to withstand congressional scrutiny. Although proposed rules

6. FED. R. Evm. 801(d)(l)(A).

8. Uniform Rules of Evidence, in HANDBOOK OF TIIE NATIONAL CONFERENCE OF

II. RULE 80l(d)(l)(A)-THE BATTLE OVER

A. The Orthodox Rule

witness break down as a result of adversarial confrontation. In the

cross-examiner at trial will be successful in "breaking down" the wit-

suggestions, intimidation, or appeals to sympathy or prejudice.

20. McCormick, 25 TExAs L. REv. 573, supra note 10.

bearing on a witness' credibility while ignoring its substantive content.

judicial statements in determining petitioner's guilt, admission of Evans' confession

B. Advisory Committee Proposal and Congressional

30. FED. R. Evm. 80l(d)(l)(A).

substantive admissibility for all prior inconsistent statements was de-

consideration of the matter moved to the Senate Committee on the

prior inconsistent statements for which there is ( 1) almost absolute

Thus, even though Congress did delete the House's requirement of

mitted as substantive evidence. See generally Graham, Examination of a Party's

contention advanced by supporters of the Advisory Committee and

Acknowledging the legitimacy of Congress' concern regarding

acknowledged by a declarant in his testimony in the present pro-

sonal knowledge of the facts underlying the third person's state-

of the foregoing proposals, only "first-hand hearsay" would be admis-

to the rule as adopted by the Supreme Court. Nevertheless, it is probably true

stantive evidence even if the alleged admission is contained in a

ment by anyone concerning the defendant's confession would be admissible, in spite

Certain prov1S1ons of the proposed rule deserve specific men-

though the possibility of forged signatures on or alterations in

preponderance of the evidence will normally be accomplished as part of the process

judging the credibility of each witness and of deciding what in fact

Ill. RULE 613-THE FOUNDATION REQUIREMENT

Rule 613, as drafted by the Advisory Committee, approved by

A. The Common-Law Requirements

by resolving doubts in favor of the witness. 79 McCormick, on the

2. The Foundation Requirement

statements., the specific requirements established for each were not

rule established in the Queen's CO§e, in practice they never consid-

92. 115 U.S. 69 (1885).

fronted with its contents so that he could admit, deny, or explain. 00

96. See The Charles Morgan, 115 U.S. 69, 77 (1885):

examiner to produce extrinsic evidence of the statement. 104 A wit-

examination by use of the voir dire procedure.

statement112 in order to save time and minimize the calling of wit-

C. The Approach Adopted in Rule 613

112. EVIDENCE, supra note 12, § 37, at 73.

describe the nature of the prior statements included, a change de-

( 5) Cross-examination posing a question containing the tradi-

Turning to 613(b), extrinsic evidence of a prior inconsistent oral

ment] shall be shown or disclosed to opposing counsel." This provision apparently

amined only about the underlying facts (category (1) questions),

time upon further cross-examination of the witness, it seems clear

124. Note, Modification of the Foundational Requirement for Impeaching Wit-

D. A Proposed Amendment to Rule 613