An important reminder of what is inconsistent

If a witness testifies at trial the traffic light was red, the accused may ask if they told the police officer the light was green.  And, depending on the answer the accused may offer extrinsic evidence of the inconsistency.  This is a clear prior inconsistent statement.  Usually there is no trouble identifying the issue.  But what happens if the witness says I don’t remember, or is vague, evasive or something else?

The NMCCA has an unpublished opinion in United States v. Corcoran, which should be read for a fuller and better reminder of when a witness may be impeached with a prior inconsistent statement, and most importantly when extrinsic evidence may be offered.

In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007). The court talked about the process of impeachment by prior inconsistent statement.  It is a tool to question the witness and “By showing self-contradiction, the witness can be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983). M.R.E. 613(b) allows extrinsic evidence of a prior inconsistent statement if the witness has been first given a chance to explain or deny the statement.  Keep in mind that there can be no extrinsic evidence if the witness admits making the prior inconsistent statement.  United States v. Gibson, 39 M.J. 319, 324 (C.M.A. 1994).

However, if the witness denies the statement or – and here is the often missed opportunity – the witness says they can’t recall or equivocates, then , extrinsic evidence may be admitted, but only for impeachment. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (“whether testimony is inconsistent with a prior statement is not limited to diametrically opposed answers but may be found as well in evasive answers, inability to recall, silence, or changes of position”).  See also, United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005).

In Corcoran, it appears:

First, here, as in Harrow, “the military judge appears not to have understood that an inability to recall or a ‘non-responsive’ answer may present an inconsistency for purposes of M.R.E. 613.” Id. at 200.

Second, the defense counsel properly confronted BNS with this prior statement and gave her an opportunity to explain or rebut it. BNS’s denial that she remembered making this statement to Lieutenant Keck was, for MIL. R. EVID. 613 purposes, sufficient to open the door for extrinsic evidence.

Huuum, while discussing the special findings issued in the case – a separate issue – the NMCCA reminded all of a well known axiom:  Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.  United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007).

Despite the clear error, as often happens the NMCCA found no prejudice to Corcoran’s conviction.