705.9Prior Statements [Rule 613]
- When a witness has made a prior statement that is inconsistent with the witness’s testimony at trial, he or she may be impeached with that prior statement. If the subject of the impeachment is material to the case, it may be proved with extrinsic evidence.
- When a witness has made a prior statement that corroborates the witness’s testimony at trial, the prior statement may be used to support the witness’s credibility, even if his or her credibility has not yet been attacked.
- The prior statement does not have to be shown or disclosed to the witness while he or she is being examined about it, but upon request it must be shown or disclosed to opposing counsel.
The Basic Rule
Rule 613 – Prior Statements of Witnesses
In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
Rule 613 states that when a party examines a witness about a prior statement made by the witness (written or otherwise), the party is not required to show the statement to the witness while asking questions about it. G.S. 8C-613. The party must, however, show the statement to the opposing party if requested. G.S. 8C-613. See generally State v. Turner, 177 N.C. App. 423 (2006), cert denied, 361 N.C. 226 (2007) (no error where state cross-examined testifying defendant with his prior testimony from district court but did not disclose the statements to defense counsel, where there was no evidence that the defense ever asked for the statements). Rule 613 abolished the common law requirement that a statement be shown to opposing counsel before it could be used, but preserved the opposing party’s right to see the statement upon request “to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.” G.S. 8C-613, Official Commentary.
There is no particular form that a statement must take when used under this rule. It may be written, recorded, or testified to by a person who heard the statement. See State v. Walters, 357 N.C. 68 (2003) (detective properly allowed to testify about prior inconsistent statements made by defendant; 911 recording was also admissible); State v. Ward, 338 N.C. 64 (1994) (statement may be made in or out of court, may be oral or in writing, but noting that second-hand hearsay not allowed); In re K.W., 192 N.C. App. 646 (2008) (statements taken from witness’s social media page could be used to impeach her testimony).
Prior statements are typically used to either impeach or corroborate a witness’s testimony at trial, in order to attack or support the witness’s credibility and influence the weight that the jury gives to the testimony. See N.C.P.I.—Criminal 105.20, “Impeachment or Corroboration By Prior Statement” (evidence of a prior statement is not admissible as evidence of the truth of what was said, since the prior statement was not made under oath, but if the prior statement “conflicts or is consistent with the testimony of the witness at this trial” the jury may consider that in deciding whether to believe the witness’s trial testimony).
Both of these purposes, impeachment and corroboration, are discussed in more detail in the following sections.
Impeachment with Prior Statement
For more information about impeachment in general, such as when it is allowed, which party may impeach, and the types of evidence that may be used, see the related entry on Impeachment: General [Rule 607].
A witness may be impeached with a prior inconsistent statement that was made by the witness and is inconsistent with the witness’s current testimony. See, e.g., State v. Avent, 222 N.C. App. 147 (2012) (state properly impeached witnesses who testified they did not see defendant at the scene of the crime with prior statements to the police indicating that they did see defendant at the scene, with one of them identifying the defendant as the shooter); State v. Lynn, 157 N.C. App. 217 (2003) (properly excluding double hearsay regarding a purported prior statement of testifying witness, as reported by a third party); State v. Aguallo, 322 N.C. 818 (1988) (no error where prosecutor cross-examined testifying defendant about his prior testimony “to reveal inconsistencies” in how he had testified previously).
Since the primary purpose of impeaching a witness with a prior statement is to cast doubt on the witness’s overall credibility, a witness may be impeached about collateral matters. See generally G.S. 8C-611(b) (witness may be cross-examined on any relevant issue, including credibility). However, extrinsic evidence of the prior statement (e.g., printed documents or testimony from another witness) may only be introduced for impeachment purposes if the subject matter of the impeachment is material to the underlying case. See State v. Hunt, 324 N.C. 343 (1989); see also Jessica Smith, “Criminal Evidence: Impeachment,” N.C. Superior Court Judges’ Benchbook, September 2013 (suggesting as a helpful “rule of thumb” that “a matter is material if it is independently relevant to the case, apart from its impeachment value”). Compare State v. Gabriel, 207 N.C. App. 440 (2010) (question of whether defendant possessed a gun before and after the shooting was a material issue, so it was permissible to offer a transcript of the witness’s prior statement on this issue) with State v. Crockett, 138 N.C. App. 109 (2000) (in sexual assault case, where defendant’s alibi witness denied previously stating that the defendant had pulled her hair, the discrepancy was collateral to the underlying case and therefore impeachment with extrinsic evidence of her prior statement, offered through the police officer who spoke with her on that prior occasion, was improper).
If the prior inconsistent statement relates to a material matter (and therefore may be proved by extrinsic evidence), the impeaching party is not required to call the matter to the witness’s attention before introducing the extrinsic evidence. See State v. Whitley, 311 N.C. 656 (1984). If the prior statement is being offered to show bias on the part of the witness, the rule is more permissive in terms of allowing it into evidence, but the party must bring it to the witness's attention before offering it. For more information, see the related entry on Impeachment: General [Rule 607], Section C.1. (“Types of Impeachment: Bias”).
Denial of Statement
If the witness denies making the prior statement, a party may not impeach the witness’s denial by offering extrinsic evidence (e.g., a transcript of the witness’s statement) to prove the substance and content of that prior statement, because the truth or falsity of the witness’s denial that he or she made the prior statement is considered a collateral matter. See State v. Hunt, 324 N.C. 343 (1989); State v. Williams, 322 N.C. 452 (1988).
However, if the witness not only denies the prior statement but also testifies inconsistently with the substance of that prior statement, then this prohibition does not apply and the examining party may offer extrinsic evidence to prove the content of the prior statement. In this circumstance, the statement impeaches the witness’s substantive testimony and not merely the witness’s denial of making the prior statement. See State v. Gabriel, 207 N.C. App. 440 (2010); State v. Wilson, 135 N.C. App. 504 (1999); State v. Minter, 111 N.C. App. 40 (1993).
Corroboration with Prior Statement
A prior statement may be used to corroborate a witness’s testimony even if that witness has not yet been impeached. The fact that the witness made a consistent statement at an earlier time is relevant for evaluating the credibility of the witness’s testimony being given at trial. See, e.g., State v. Harris, 253 N.C. App. 322 (2017) (trial court did not err by allowing the introduction of a video recording of the state’s witness being interviewed by law enforcement to corroborate the officer’s prior testimony about the interview); State v. Walters, 357 N.C. 68 (2003) (“the foregoing 911 tape and the statement by [the witness] to Detective Autry were admissible for the purpose of corroborating [the witness]'s earlier testimony at trial. It has been well established in this state that ‘[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness whether or not the witness has been impeached,’ even though the statement was hearsay.”), quoting State v. Jones, 329 N.C. 254 (1991).
Bolstering the witness?
Rule 608 requires that a witness’s character for truthfulness be attacked before supportive evidence may be offered. For more information, see the related Evidence entry on Impeachment: Character and Conduct [Rule 608], Section C.2. (“Reputation and Opinion Evidence: After Attacked”).
No comparable rule requires that a witness first be impeached before his or her testimony may be corroborated by a prior consistent statement. See State v. Walters, 357 N.C. 68 (2003). However, as a strategic matter, the impact of such evidence may be stronger if the state waits to use it. For example, after the defense attempts to impeach the witness by suggesting her trial testimony is fabricated, the state may respond by offering a consistent statement that the witness gave when she talked to law enforcement officers immediately after the crime occurred.
To be admissible as corroboration, the prior statement must be generally consistent with the witness’s testimony at trial. Minor discrepancies, variations, or supplemental details will not disqualify the statement from use. See, e.g., State v. Thompson, 250 N.C. App. 158 (2016) (“the mere fact that a corroborative statement contains additional facts not included in the statement that is being corroborated does not render the corroborative statement inadmissible”); State v. Duffie, 241 N.C. App. 88 (2015) (evidence was properly admitted as corroboration where prior statement generally tracked witness’s trial testimony regarding timeline of robberies, how they were committed, and who was involved, despite presence of the additional detail in prior interview that witness likely would not have committed the robberies if not for the defendant’s involvement); State v. Moore, 236 N.C. App. 642 (2014) (“If the previous statements are generally consistent with the witness' testimony, slight variations will not render the statements inadmissible, but such variations ... affect [only] the credibility of the statement”); State v. Barrett, 228 N.C. App. 655 (2013) (no error in admitting prior statement for corroboration where differences with testimony were minor and insignificant).
Not Hearsay and Not Substantive
A prior consistent statement offered to corroborate a witness’s testimony is not offered for the truth of the matter; therefore, it is not hearsay and does not implicate the confrontation clause. See State v. Thompson, 250 N.C. App. 158 (2016) (witness’s prior statements were admitted as nonhearsay “to corroborate their statements to medical personnel,” and admission of nonhearsay “raises no Confrontation Clause concerns”); accord, State v. Ross, 216 N.C. App. 337 (2011); State v. Gainey, 355 N.C. 73 (2002); State v. Williamson, 333 N.C. 128 (1992).
However, because it is not being offered for the truth of the matter asserted, a prior statement offered for corroboration is not substantive evidence. See State v. Harrison, 328 N.C. 678 (1991) (“Prior statements admitted for corroborative purposes are not to be received as substantive evidence”); State v. Stills, 310 N.C. 410 (1984) (similar ruling). Therefore, the statement cannot be relied on to prove a substantive fact in the case, nor may the parties argue to the jury that they should use it for that purpose.
Corroboration With Inconsistent Statement?
If a prior statement contains substantial discrepancies from the witness’s testimony and fails to comport with the facts as stated in the witness’s testimony, the prior statement may not be offered to corroborate the witness’s testimony. See State v. Frogge, 345 N.C. 614 (1997) (prior statement that was “manifestly contradictory” to trial testimony was inadmissible as corroboration); State v. Ramey, 318 N.C. 457 (1986) (A “witness's prior statements as to facts not referred to in his trial testimony and not tending to add weight or credibility to it are not admissible as corroborative evidence. Additionally, the witness's prior contradictory statements may not be admitted under the guise of corroborating his testimony.”). Attempting to corroborate a witness with an inconsistent statement would improperly put evidence before the jury that is otherwise inadmissible, and is not allowed. See State v. Hunt, 324 N.C. 343 (1989); State v. Lanier, 165 N.C. App. 337 (2004).
See also the related Evidence entry on Impeachment: General [Rule 607], Section D.2. (“Subterfuge”).
Can one statement both impeach and corroborate?
No, but a single interview or written declaration may contain both corroborating and impeaching statements. See, e.g., State v. Gettys, 243 N.C. App. 590 (2015).
Gettys held that the trial court did not abuse its discretion by admitting a recording of the witness’s interview with police for both corroboration and impeachment purposes. The testimony of the state’s witness was generally consistent with her earlier interview, but diverged in some respects. The appellate court rejected the defendant’s argument that the state had called the witness as a “pretext” for the purpose of impeaching her with the inconsistent portions of the interview. The court also rejected the defendant’s argument that admitting the recording for both corroboration and impeachment was “logically contradictory and counterintuitive.” Instead, the court explained that the state did not introduce a single pretrial statement for both corroboration and impeachment; rather, it introduced a recording of the witness’s interview, and that recording contained a number of individual statements, some of which tended to corroborate her testimony and some of which tended to impeach her testimony.