Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series RULE

Woodlands Criminal Defense Attorney Brian Foley explains Rule 613 of the Texas Rules of Evidence.

So you want to cross examine a witness and shove their prior statement down their throat? Welcome to the best moment you can have as a lawyer. Rule 613 of the Texas Rules of Evidence explains what you have to do in order to properly shove that statement as far down their throat as it will go.

(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:

(A) the contents of the statement;

(B) the time and place of the statement; and

(C) the person to whom the witness made the statement.

If you've got them dead to rights and you're holding a written statement given by them previously there is no need to show them. However if opposing counsel wants to see what you're reading the rule does require you to show them.

So if the witness said the light was green at a prior occasion and at trial you ask them, "Isn't it true that the light was green?" and they say, "No" then you can ask them the following.

"Isn't it true that on October 1, 2019 you made a statement to police," - Yes

"It was a few hours after the wreck occurred in this case at around 9:00 p.m." - Yes

"Isn't it true that You told officer Hudgins, the light was green right?" - No.

If they deny again here then you can use extrinsic evidence (Like the prior written statement) to help prove that the person did in fact make the statement.

This same methodology holds true for attacks to the witnesses bias or interest.

Rule 613. Witness’s Prior Statement and Bias or Interest

(a) Witness’s Prior Inconsistent Statement.

(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:

(A) the contents of the statement;

(B) the time and place of the statement; and

(C) the person to whom the witness made the statement.

(2) Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.

(4) Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.

(5) Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2).

(b) Witness’s Bias or Interest.

(1) Foundation Requirement. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement— whether oral or written—to prove the witness’s bias or interest, a party must tell the witness:

(A) the contents of the statement;

(B) the time and place of the statement; and

(C) the person to whom the statement was made.

(2) Need Not Show Written Statement. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest. And the witness’s proponent may present evidence to rebut the charge of bias or interest.

(4) Extrinsic Evidence. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it.

(c) Witness’s Prior Consistent Statement. Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.

Comment to 2015 Restyling: The amended rule retains the requirement that a witness be given an opportunity to explain or deny (a) a prior inconsistent statement or (b) the circumstances or a statement showing the witness’s bias or interest, but this requirement is not imposed on the examining attorney. A witness may have to wait until redirect examination to explain a prior inconsistent statement or the circumstances or a statement that shows bias. But the impeaching attorney still is not permitted to introduce extrinsic evidence of the witness’s prior inconsistent statement or bias unless the witness has first been examined about the statement or bias and has failed to unequivocally admit it. All other changes to the rule are intended to be stylistic only.

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