§ Rule 613. Prior statements of witnesses
Rule 613. Prior statements of witnesses
(a) Examining witness concerning prior inconsistent statement. A witness may be examined concerning a prior inconsistent statement made by the witness, whether written or not, and the statement need not be shown or its contents disclosed to the witness at that time, but on request the statement or contents shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is admissible only if, during the examination of the witness,
(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) the opposing party is given an opportunity to question the witness.
This section does not apply to admissions of a party-opponent as defined in Rule 803(25) (relating to admissions by a party-opponent).
(c) Evidence of prior consistent statement of witness. Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes if the opposing party is given an opportunity to cross-examine the witness about the statement, and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness' denial or explanation.
Comment: Pa.R.E. 613 differs from F.R.E. 613 both in organization and substance. Both Pa.R.E. 613 and F.R.E. 613 cover impeachment by prior inconsistent statements, but only Pa.R.E. 613 deals with rehabilitation by prior consistent statements.
Section (a). This section of the rule is basically the same as F.R.E. 613(a), except that the word “inconsistent” does not appear in the federal rule. Its inclusion makes clear that both sections (a) and (b) involve attacks on credibility through prior inconsistencies. It has been suggested that its omission from the federal rule was a “drafting oversight.” Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6203, n. 13 (1993); J. Weinstein, 3 Weinstein's Evidence § 613.02[1], n. 1 (1991). By dispensing with the need to show the prior statement or disclose its contents to the witness before proceeding with examination about it, section (a) repudiates the decision in the Queen's Case, 129 Eng. Rep. 9761 (1820). Pa.R.E. 613(a) resolves the ambiguity in the scant Pennsylvania authority on this point. Compare Kann v. Bennett, 72 A. 342 (Pa. 1909) (before witness may be cross-examined about prior inconsistent statement, witness must be shown the statement and asked if he wrote it) with Commonwealth v. Petrakovich, 329 A.2d 844 (Pa. 1974) (overlooking Kann case, court stated it had never considered question of showing statement to witness, and found no need to resolve question under facts of case).
Section (b). The first sentence of section (b) of Pa.R.E. 613 differs from F.R.E. 613(b). Like the federal rule, Pa.R.E. 613(b) permits introduction of extrinsic evidence of a prior inconsistent statement only if the witness was confronted with or informed of the statement, thus providing the witness with a chance to deny or explain the statement. Pa.R.E. 613(b), however, requires that the witness be confronted or informed during the examination; the federal rule sets no particular time or sequence. F.R.E. 613 advisory committee notes.
Pa.R.E. 613(b) follows the traditional common law approach. It establishes that the witness must be shown or made aware of the prior inconsistent statement before extrinsic evidence of the statement may be introduced, unless relaxation of the rule would serve the interests of justice. This is a departure from Pennsylvania authority, which gives the trial court discretion whether to require showing or disclosure of the statement. See, e.g., Commonwealth v. Manning, 435 A.2d 1207 (Pa. 1981); Commonwealth v. Dennison, 272 A.2d 180 (Pa. 1971).
The rationale for the last sentence of section (b), which exempts admissions of a party-opponent, is that “parties have ample opportunities to testify and explain or deny statements attributed to them.” 28 Wright & Gold, Federal Practice and Procedure § 6205 (1993). The exemption is in accord with Pennsylvania law. Commonwealth by Truscott v. Binenstock, 57 A.2d 884 (Pa. 1948); Commonwealth v. Dilworth, 137 A. 683 (Pa. 1927).
Finally, as noted in the Comment to Pa.R.E. 607(a), a prior inconsistent statement may be used only for impeachment purposes and not substantively unless it is an admission of a party opponent under Pa.R.E. 803(25), the statement of a witness other than a party-opponent within the hearsay exception of Pa.R.E. 803.1(1), or a statement of prior identification under the hearsay exception of Pa.R.E. 803.1(2).
Section (c). Pa.R.E. 613(c) does not appear in F.R.E. 613. F.R.E. 801(d)(1)(B) provides that the prior consistent statement of a testifying witness is not hearsay, and that the statement is admissible substantively if it is consistent with the witness' testimony and “is offered to rebut an express or implied charge of recent fabrication, or improper influence or motive.” Pa.R.E. 613(c) adds “bias,” “faulty memory,” and “prior inconsistent statement” to the kind of charges that may be rebutted by a consistent statement. In addition, it specifically provides in subsection (c)(1) that the consistent statement must have been made before the fabrication, bias, etc. Although F.R.E. 801(d)(1)(B) is silent on this point, the Supreme Court held that it permits the introduction of consistent statements as substantive evidence only when they were made before the challenged fabrication, influence, or motive. See Tome v. United States, 513 U.S. 150 (1995). Unlike the federal rule, under Pa.R.E. 613(c), a prior consistent statement is always received for rehabilitation purposes only and not as substantive evidence.
Pa.R.E. 613(c)(1) is in accord with Pennsylvania law. See Commonwealth v. Hutchinson, 556 A.2d 370 (Pa. 1989) (to rebut charge of recent fabrication); Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, 626 A.2d 627 (Pa. Super. 1993) (to negate charge of faulty memory); Commonwealth v. McEachin, 537 A.2d 883 (Pa. Super. 1988), appeal denied , 553 A.2d 965 (Pa. 1988) (to offset implication of improper influence). All of these cases require that the consistent statement must have been made before the fabrication, bias, etc.
Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that when an attempt has been made to impeach a witness with an alleged prior inconsistent statement, a statement consistent with the witness' testimony should be admissible to rehabilitate the witness if it supports the witness' denial or explanation of the alleged inconsistent statement. Where there has been a denial of the alleged inconsistent statement, the consistent statement should almost invariably be admitted, regardless of its timing. When the witness admits and explains the inconsistent statement, the use of the consistent statement will depend upon the nature of the explanation and all of the circumstances that prompted the making of the consistent statement; the timing of that statement, although not conclusive, is one of the factors to be considered. If the witness acknowledges making the inconsistent statement and offers no explanation, a consistent statement, whether made earlier or later, should not be admitted.
Usually, evidence of a prior consistent statement is rebuttal evidence that may not be introduced until after a witness has testified on direct examination and an express or implied attack has been made on the witness' testimony in one of the ways set forth in Pa.R.E. 613(c). But in at least two situations, Pennsylvania Courts have upheld the admission of a prior consistent statement in anticipation of an attack on the witness. See Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988) (prior consistent statements by prosecution witness admitted on direct examination where defense counsel's opening statement suggested that the witness had motives to fabricate evidence against the defendant to obtain a lenient sentence for herself); Commonwealth v. Freeman, 441 A.2d 1327 (Pa. Super. 1982) (evidence of prompt complaint of rape by alleged victim may be introduced in prosecution's case in chief because alleged victim's testimony is automatically vulnerable to attack by the defendant as recent fabrication in the absence of evidence of hue and cry on her part.”).