MBE Rules · Evidence
Impeachment — prior inconsistent statements
FRE 613
The rule
A witness may be impeached with prior inconsistent statements. Extrinsic evidence admissible only if witness given opportunity to explain or deny AND adverse party given opportunity to examine. Not admissible substantively unless qualifies under 801(d)(1)(A) (under oath at prior proceeding).
In plain English
You can challenge a witness's credibility by showing they've said something different before, but they must get a chance to explain themselves.
Worked example
During trial, the defendant's friend says he was home all night. Officer A then shows a text from the friend saying they were at a party. The friend is asked to explain this inconsistency.
Memory hook
Inconsistencies need a stage. Witness must explain or deny; others must examine.
The trap
Students think: Any prior statement can be used substantively. Wrong, because only statements under oath qualify under 801(d)(1)(A). The actual test is whether the statement was made in a prior proceeding under oath.
How examiners test it
The MBE loves: a witness denies making a prior statement. Question: can extrinsic evidence be used? Trap: students forget the witness must be given a chance to explain or deny first.
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