Conn. R. Evid. 6-10

As amended through April 25, 2023

Section 6-10 - Prior Inconsistent Statements of Witnesses

(a)Prior inconsistent statements generally. The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.

(b)Examining witness concerning prior inconsistent statement. In examining a witness concerning a prior inconsistent statement, whether written or not, made by the witness, the statement should be shown to or the contents of the statement disclosed to the witness at that time.

(c) Extrinsic evidence of prior inconsistent statement of witness. If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.

Conn. Code. Evid. 6-10

Amended Dec. 14, 2017, to take effect 2/1/2018.

COMMENTARY

(a) Prior inconsistent statements generally.

Subsection (a) embraces a familiar common-law principle. State v. Avis, 209 Conn. 290, 302, 551 A.2d 26, cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979); Beardsley v. Wildman, 41 Conn. 515, 516 (1874).

Impeachment of a witness' in-court testimony with the witness' prior inconsistent statements is proper only if the prior statements are in fact "inconsistent'' with the witness' testimony. E.g., State v. Richardson, 214 Conn. 752, 763, 574 A.2d 182 (1990); State v. Reed, 174 Conn. 287, 302-303, 386 A.2d 243 (1978). A finding of a statement's inconsistency "is not limited to cases in which diametrically opposed assertions have been made.'' State v. Whelan, 200 Conn. 743, 749 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Inconsistencies can be found in omissions, changes of position, denials of recollection or evasive answers. Id., 748-49 n.4. The determination whether an "inconsistency'' exists lies within the discretion of the court. State v. Avis, supra, 209 Conn. 302.

The substantive admissibility of prior inconsistent statements is treated elsewhere in the Code. See Section 8-5(1).

(b) Examining witness concerning prior inconsistent statement.

Subsection (b) addresses the necessity of laying a foundation as a precondition to examining the witness about his or her prior inconsistent statement. It adopts the rule of State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976). Accord State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988); State v. Williams, 204 Conn. 523, 534, 529 A.2d 653 (1987).

Although Connecticut favors the laying of a foundation; see State v. Saia, supra, 172 Conn. 46; it consistently has maintained that there is "no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to [the] alleged prior inconsistent statement before . . . questioning him [or her] on the subject . . . .'' Id.; see Adams v. Herald Publishing Co., 82 Conn. 448, 452-53, 74 A. 755 (1909).

(c) Extrinsic evidence of prior inconsistent statement of witness.

The first sentence is consistent with common law. See G & R Tire Distributors, Inc. v. Allstate Ins. Co., supra, 177 Conn. 61; see also Barlow Bros. Co. v. Parsons, 73 Conn. 696, 702-703, 49 A. 205 (1901) (finding extrinsic proof of prior inconsistent statement unnecessary when witness admits to making statement); State v. Graham, 21 Conn. App. 688, 704, 575 A.2d 1057 (same), cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); cf. State v. Butler, supra, 207 Conn. 626 (where witness denies or states that he or she does not recall having made prior statement, extrinsic evidence establishing making of that statement may be admitted). Notwithstanding the general rule, subsection (c) recognizes the court's discretion to admit extrinsic evidence of a witness' prior inconsistent statement even when the examiner lays a foundation and the witness admits making the statement. See G & R Tire Distributors, Inc. v. Allstate Ins. Co., supra, 61.

The second sentence reconciles two interrelated principles: the preference for laying a foundation when examining a witness concerning prior inconsistent statements; see subsection (b); and the discretion afforded the trial court in determining the admissibility of extrinsic evidence of a witness' prior inconsistent statements where no foundation has been laid. State v. Saia, supra, 172 Conn. 46.

Case law forbids the introduction of extrinsic evidence of a witness' prior inconsistent statement when the witness' statement involves a collateral matter, i.e., a matter not directly relevant and material to the merits of the case. E.g., State v. Diaz, 237 Conn. 518, 548, 679 A.2d 902 (1996); Johnson v. Palomba Co., 114 Conn. 108, 115-16, 157 A. 902 (1932).