Evidence Legal Topics Litigation Strategy Trial Strategy

How to Rehab Your Witness

What can you do if your witness’s truthfulness has been challenged? Use evidence of the witness’s prior consistent statement to rehabilitate your witness. Here’s how it’s done.

To admit evidence of a prior consistent statement of a testifying witness, you’ll need to satisfy the following requirements:

If rehabbing after the witness’s prior inconsistent statement has been admitted in evidence (Evid C §§791(a), 1236):

  • The prior consistent statement must have been made before the alleged inconsistent statement was made (Evid C §791(b)); and
  • If the prior consistent statement is a writing, it must be authenticated (Evid C §1401).

If rehabbing after an express or implied charge that the witness’s testimony is the result of fabrication, bias, or improper motive (Evid C §§791(b), 1236):

  • The prior consistent statement must have been made before these circumstances are alleged to have arisen (Evid C §791(b)); and
  • If the prior consistent statement is a writing, it must be authenticated (Evid C §1401).

Prior consistent statements may be introduced either by (1) asking the witness about his or her own prior consistent statement on redirect examination, or (2) introducing the testimony of a witness to the prior consistent statement.

It’s usually more persuasive to the trier of fact if you go with the second route, because the credibility of the witness whose testimony you’re trying to rehabilitate has been put in issue.

When a prior consistent statement is introduced on direct examination of someone who was a witness to the prior statement, you’ll want that witness to testify to the following matters:

  • Identify his or herself and the witness being rehabilitated;
  • Tell when the statement was made;
  • Describe where the statement was made;
  • Explain the nature of the conversation; and
  • Report the prior consistent statement.

For example, ask the witness

Q: Are you acquainted with Mr. Witness?

Q: What is the nature of your relationship with Mr. Witness?

Q: I am showing you a document marked Exhibit A. Have you ever discussed the drafting of this document with Mr. Witness?

A: Yes.

Q: When was the first time you spoke with him on this subject?

A: On October 4, 2018.

Q: How did the topic come up in your conversation?

A: I asked him how negotiations on the Widget deal were coming.

Q: What did he say?

A: He said that he had signed a contract with Mr. Widget just the day before.

For everything you need to know about using prior consistent statements at trial, turn to CEB’s Effective Introduction of Evidence in California, chap 40.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. 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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