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If the victim
testifies, but changes the story, e.g. now claims there was no assault
or that the defendant was not the assailant,
then the prosecution may impeach the witness
by confronting the witness with prior inconsistent statements made
under oath (Rule 11-801(D)).
Definition
Rule 11-801(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 concerning the statement,
and the statement is
(a) inconsistent with the declarant's testimony and was given under
oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition.
Foundation
A party may introduce into evidence prior inconsistent statements
by a
witness if:
• the party testifies at trial and is subject to cross-examination
concerning the statement;
• the prior statement is inconsistent with the witness's testimony;
and
• the prior statement was given under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding, or in a deposition.
Admissibility
A prior inconsistent statement made under oath is admissible for
all purposes, including substantive evidence to help prove the elements
of a case.
Example
An alleged victim testifies on the witness stand that she obtained
the bruises shown in a police photograph taken at an alleged domestic
violence scene by falling down the stairs. The prosecutor introduces
testimony from a preliminary hearing or sworn deposition in which
the witness testified that her boyfriend inflicted the bruises on
her by hitting her that night. The prior sworn testimony may be
admitted as evidence to prove the offense.
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