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That’s Not What You Said in Your Depo

mouth_94175022What do you do when a witness says one thing during his or her deposition and a very different thing when on the stand at trial? Impeach!

Here’s the basic California law on using evidence of prior inconsistent statements of testifying witnesses: Such evidence is admitted as an exception to the hearsay rule because it safeguards against changes in testimony. Evid C §1235. Prior inconsistent statements are admissible for the truth of the matter stated because the witness declarant is available for confrontation and cross-examination and because the previous statement may be closer to the truth in that it was made nearer in time to the recalled event.

So how do you introduce evidence of a prior inconsistent statement of a testifying witness? First, you have to satisfy the following requirements:

  • The impeaching statement must be inconsistent with some part of either the express or implied testimony of the witness (Evid C §§770, 1235); and either (1) the witness, while testifying, was given an opportunity to explain or deny making the prior inconsistent statement (Evid C §770), or (2) the witness has not been excused from giving further testimony in the action (Evid C §770); and
  • If the impeaching statement is a writing, it must be authenticated (Evid C §1401).

Second, prepare a question that will make it absolutely clear to the jury that the witness is being impeached, and highlight the former statement that is favorable to your case.

Third, decide whether you want to confront the witness who’s being impeached with the prior statement or bring the prior statement in through your own witness. Take into account the likely response of the witness to be impeached if questioned directly and how you’ll proceed if the witness fails to authenticate the prior statement, if written, or refuses to acknowledge having made the prior statement. If you decide to go with confronting the witness with a prior inconsistent written statement, you have to give the witness an opportunity to explain or deny it. Evid C §770. You may do this by giving the witness time to review the statement if it is lengthy or by refreshing the witness on the circumstances under which the statement was made.

Wondering how exactly to do all this? Check out our blog post on using deposition testimony at trial for a step-by-step approach. For a sample record on impeaching with deposition testimony, turn to CEB’s Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial), Step 26. CEB also has you covered with chapters on credibility, former testimony, and prior inconsistent statement in Effective Introduction of Evidence in California.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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