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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 other prior inconsistent statements
(Rule 11-613(B)).
Definition
Rule 11-613(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
the witness thereon, or the interests of justice otherwise require.
Foundation
If a party wishes to introduce evidence of prior inconsistent statements
by the witness, other than the witness' prior statements made under
oath, then:
• the party must afford the witness an opportunity to explain or
deny the prior statement (although it need not be shown to
the witness); and
• the adverse party must be given the opportunity to cross-examine
the witness about the prior statement.
Admissibility
A prior inconsistent statement that is not made under oath may be
admitted only to impeach the credibility of the witness. For example,
in a domestic violence case such a statement cannot be admitted
as substantive evidence to show that the defendant assaulted the
victim.
Example
The alleged victim was taken to the police station and signed a
sworn affidavit stating that her boyfriend beat her up. She later
testifies at his criminal trial that she fell down the stairs. The
prior statement may be introduced to impeach the credibility of
the victim as a witness, but may not be used as substantive evidence
of the defendant's guilt. Absent other substantive evidence of the
defendant's guilt, this prior statement alone cannot support a conviction.
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