Prosecution of D for stealing a construction crane from a work site at 2 p.m. on a Tuesday afternoon. D’s alibi is that he was inside Barnes & Noble browsing for books from 1:30 to 2:30 that afternoon. As part of its case in chief, the prosecution calls W, a manager of a pet store located across from the construction site, to testify that she observed D standing in front of the pet store looking at the construction at approximately 1:50 that afternoon. On cross-examination, D’s attorney asks W if she recalls telling her boyfriend that she was eating lunch at a restaurant from 1 to 2 p.m. that day.
W denies making that statement to her boyfriend. To impeach her credibility, D’s attorney calls W’s boyfriend to testify that W told him that she was indeed at that restaurant from 1 to 2 p.m.
The prosecution objects to D’s use of W’s boyfriend to impeach W? How should the court rule?
Objection overruled. This question resembles Problems 28 and 29. All three involve impeaching third-party witnesses with evidence of prior inconsistent statements. By whichever means the prior inconsistent statement is introduced (i.e. testimony or writing), the statements may not be admitted for their truth unless those statements were provided under the penalty of perjury consistent with FRE § 801(d). But absent that requirement, the statements are fair game for impeachment purposes under FRE § 613 so long as the adverse party’s attorney is provided its contents, upon request. And as is the case here, if extrinsic evidence is produced to “prove up” the inconsistency, FRE § 613 requires that the “witness be given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”
Unlike federal law, New York law requires that the cross-examiner lay a “confrontation foundation” (a walk-through of the specifics of the statement such as time, place, persons involved, substance) before cross-examining the witness as if the statement were presumptively made.