MBE Tip of the Day: Evidence

Answer to the Evidence MBE Question

Subject: Evidence

Legal Issue: When is extrinsic evidence admissible to impeach a witness based on a prior inconsistent statement?

Legal Rule and Analysis: If a witness has made a statement that is inconsistent with their testimony at trial, it can be used for impeachment purposes.  It can only be admitted as substantive evidence (i.e. to prove the truth of the matter asserted) if it meets a hearsay exception or exclusion. However, here we are told that the tape is not being offered for the truth of the matter but only to discredit (or impeach) the declarant. Thus, hearsay is not an issue.

The rules regarding impeachment through prior inconsistent statements can also be used to impeach a witness-declarant that is not testifying at trial.  Ordinarily, extrinsic evidence (which is a fancy way of saying “outside evidence” – such as a tape recording) of prior inconsistent statements can only be presented if the witness is given an opportunity to explain or deny the statement at some point in court. However, this rule does not apply when:

• (1) the witness is the opposing party,
• (2) the witness is not in court at all, or
• (3) when the interests of justice require

In this case, we have a non-testifying witness whose statement is being offered at trial through a shop-owner.  The defense is seeking to discredit the witness by offering evidence of a second statement made by the witness that is inconsistent with the testimony.  Thus, the defense is trying to impeach the witness.  (If you applied hearsay rules, pay careful attention to the reason the evidence is being offered!)

A recording of the conversation between the witness and the officer constitutes extrinsic evidence as it is outside evidence being brought into court.  Extrinsic evidence isn’t admissible to impeach based on a prior inconsistent statement when the witness isn’t provided the opportunity to explain or deny the statement on the stand unless one of the exceptions are met.  In the facts, we are told that the witness is not testifying at trial and is not present in court.  Therefore, exception (2) listed above is met.  Extrinsic evidence will be admissible to prove that the witness made a prior statement inconsistent with the testimony.  However, the evidence will not be admissible as proof that the defendant did not run a red light.  (The statement the witness gave to the police officer was not under oath, and so it does not meet the prior inconsistent statement hearsay exception. Nor does it meet any other hearsay exception or exclusion based on the facts we are given. Further, we are told that the statement is only being offered for impeachment. Thus, we do not have to worry about a hearsay exception or exclusion.)

Conclusion: Since the witness is not testifying at trial, the recording will be admissible as extrinsic evidence of the witness’s prior inconsistent statement.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (D) is therefore correct. (A) is incorrect because the statements made in the recording do not meet the definition of hearsay.  Hearsay is an out of court statement offered to prove the truth of the matter asserted.  The defense is not offering the recording to prove the truth of the statements made on it.  Rather, it is offering the recording to impeach the witness’s credibility.  Therefore, the statements made in the recording are not hearsay. (B) is incorrect because, as stated above, extrinsic evidence is admissible when the witness does not appear in court. (C) is incorrect because the recording does not meet the requirements for the past recollection recorded exception, even if it were being offered to prove the truth of the matter asserted.  To be admissible under this exception, we need to have a witness on the stand who has insufficient recollection of the incident while testifying.  Here there is no witness on the stand who is having trouble remember what they are to be testifying to.

MBE Tip: In order to understand exactly what the call of the question is asking, it is important to know the definitions of basic legal terms!  In this problem, the call asks you whether the prosecution’s objection should be “sustained.”  If you do not know that sustaining an objection (as opposed to overruling it) means to grant the objection, or to uphold it as valid, then you will not know how to properly answer the question.  You might think that the appropriate answer should be a “yes” choice instead of a “no” choice.  Understanding legal terminology will allow you to frame the question correctly.

It is also important to pay attention to exactly what the question is asking. If you started undergoing a hearsay analysis, remind yourself to slow down and focus on exactly what the question is asking–that is, whether the statement may be used for impeachment.