Impeachment for the Truth

The federal rules of evidence allow for the admission of a prior inconsistent statement for the purpose of impeaching the credibility of a witness. However, the federal rules do not allow for such a statement to be offered for the truth of the matter. This distinction presents itself in closing arguments.

For example, say an eye witness makes a statement to police that the light was green when the defendant entered the intersection. While on the stand, this same witness testifies that the light was red, not green. Defense counsel may cross examine the witness as to the prior inconsistent statement so show that the witness’ testimony is not credible. According to the federal rules, defense counsel may only argue that the witness’ credibility should be strongly questioned by the jury, given the inconsistencies in the witness’ statements. In states such as Colorado, this limitation does not exist.

Pursuant to C.R.S. 16-10-201:
(1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:
(a) The witness, while testifying, was given an opportunity to explain or deny the statement or the witness is still available to give further testimony in the trial; and
(b) The previous inconsistent statement purports to relate to a matter within the witness's own knowledge.

In other words, defense counsel may argue that the light was actually green. While non-practitioners hardly see a difference, it is substantial nonetheless. This statutory hearsay exception fails to question the reliability of such a prior statement. While the statute allows the witness the opportunity to explain the prior inconsistent statement (to say, for example, that it was a mistake or misquoted), the jury is able to hear the statement without further consideration of its reliability or lack of reliability.

This statutory loophole allows for a wide variety of out of court statements to be offered for the truth of the matter asserted; however, it is used most often for a recanting domestic violence victim. In many circles, the thought is that one cares little as to what the victim actually says on the stand, so long as he/she takes the stand, as the victim can be impeached and the testimony can be offered for the truth (and not just credibility). This is troublesome. While recanting victims do threaten to mislead a jury from the truth, the proffer of non-sworn testimony for the truth risks the same. We will dive into this topic more in the future, as there are many alternatives that are available for Colorado and other similarly legislated states.