Article VI. Witnesses

219

Rule 613: Prior Statements of Witnesses.

(a) Examining Witness Concerning Prior Statement - In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness - Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 803(1.2).

(c) Opinions - A prior statement in opinion form is admissible to impeach testimony.

[Amended by order filed January 31, 2003, effective July 1, 2003.]

Advisory Commission Comments.

The rule eliminates any necessity of showing an inconsistent writing to a fact witness under impeachment attack. The only requirement is that, where the impeaching lawyer introduces extrinsic evidence of the inconsistent statement, the fact witness must be "afforded an opportunity to explain or deny." The rule will not change drastically Tennessee procedure. Compare Moore v. Bettis, 30 Tenn. 67 (1850), with Titus v. State, 66 Tenn. 132 (1874).

 Part (c) would change such hypertechnical results as that reached in Saunders v. City & Suburban Railroad, 99 Tenn. 130, 41 S.W. 1031 (1897), excluding a prior inconsistent statement characterized as an "opinion". Obviously an opinion inconsistent with a fact should be admissible.

Advisory Commission Comment [2003].

Paragraph (b) is amended to add the words “and until.” The effect is to incorporate the holding in State v. Martin, 964 S.W.2d 564 (Tenn. 1998): “extrinsic evidence remains inadmissible until the witness either denies or equivocates as to having made the prior inconsistent statement.”

Note that Rule 806 does not require a foundation before impeaching a hearsay declarant by inconsistent statement.

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