Impeachment is the most effective weapon in a cross-examiner’s arsenal. The Texas Rules of Evidence and the reported cases recognize five basic methods of impeachment: 1. showing that a witness made a prior inconsistent statement; 2. showing that a witness is biased; 3. attacking a witness’ character for truthfulness; 4. showing deficiencies in a witness’ personal knowledge or ability to observe, recall, or relate; and 5. contradicting a witness’ testimony with testimony of other witnesses or the admission of contradictory evidence.
1. Prior inconsistent statement. Impeachment with a prior inconsistent statement is controlled by Rule 613 of the Texas Rules of Evidence. Before impeaching a witness, the examining party must first tell the witness the contents of the statement, the time and place of the statement, and the person to whom the witness made the statement. As amended in 2015, the rule now omits the previous requirement that the witness be given an opportunity to explain or deny the statement after being given the circumstances of the statement “before further cross-examination.” The comments to the amended rule explain that “a witness may have to wait until redirect examination to explain a prior inconsistent statement or the circumstances or a statement that shows bias.” Extrinsic evidence of a witness’ prior statement is not admissible unless the witness first fails to unequivocally admit making the statement. A cross-examiner’s use of a party-opponent’s admissions is not limited by Rule 613 because admissions qualify as substantive evidence and as an exception to the hearsay rule.
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