Section 613

Section 613. Prior Statements of Witnesses, Limited Admissibility

(1) Examining Own Witness. A party who produces a witness may prove that the witness made prior statements inconsistent with his or her present testimony; but before proof of such inconsistent statements is given, the party must lay a foundation by asking the witness if the prior statements were in fact made and by giving the witness an opportunity to explain.

(2) Examining Other Witness. Extrinsic evidence of a prior inconsistent statement by a witness, other than a witness covered under Section 613(a)(1), is admissible whether or not the witness was afforded an opportunity to explain or deny the inconsistency.

(3) Disclosure of Extrinsic Evidence. In examining a witness, other than a witness covered under Section 613(a)(1), concerning a prior statement made by such 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) Prior Consistent Statements.

(1) Generally Inadmissible. A prior consistent statement by a witness is generally inadmissible.

(2) Exception. If the court makes a preliminary finding that there is a claim that the witness’s in-court testimony is the result of recent contrivance or a bias, and the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of the event indicating a bias, the evidence may be admitted for the limited purpose of rebutting the claim of recent contrivance or bias.

NOTE

Subsection (a)(1). This subsection is derived from G. L. c. 233, § 23, and Commonwealth v. Scott, 408 Mass. 811, 824 n.14, 564 N.E.2d 370, 379 n.14 (1990). See Sherman v. Metropolitan Transit Auth., 345 Mass. 777, 778, 189 N.E.2d 526, 527 (1963); Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 609, 603 N.E.2d 227, 232 (1992). If the witness denies making the prior statement, he or she need not be given the opportunity to explain it. Commonwealth v. Scott, 408 Mass. at 824 n.14, 564 N.E.2d at 379 n.14. See Commonwealth v. Festa, 369 Mass. 419, 425–426, 341 N.E.2d 276, 281 (1976).

Cross-Reference: Section 607, Who May Impeach.

Subsections (a)(2) and (3). These subsections are derived from Hubley v. Lilley, 28 Mass. App. Ct. 468, 472, 473 n.7, 552 N.E.2d 573, 575–576, 576 n.7 (1990). Opposing counsel has a right to examine the statement before conducting any further inquiry of the witness to prevent selective quotation of the prior statement by the questioner and to insure that the witness has an opportunity to explain or elaborate on the alleged inconsistencies. Id.

Regardless of the type of witness as referred to in Section 613(a)(1) and (2), prior inconsistent statements are admissible to impeach a witness’s credibility, subject to the limitations of Section 801(d)(1)(A). See Commonwealth v. Balukonis, 357 Mass. 721, 726 n.6, 260 N.E.2d 167, 171 n.6 (1970). Absent objection, such hearsay evidence comes in for all purposes. See, e.g., Commonwealth v. Jones, 439 Mass. 249, 261–262, 786 N.E.2d 1197, 1208 (2003); Commonwealth v. Keevan, 400 Mass. 557, 562, 511 N.E.2d 534, 538 (1987). Evidence obtained by the government in violation of a person’s rights under the Fourth and Fifth Amendments to the Constitution of the United States or Articles 12 and 14 of the Declaration of Rights of the Massachusetts Constitution may not be used substantively but is available to use for impeachment purposes. See United States v. Havens, 446 U.S. 620, 627–628 (1980); Harris v. New York, 401 U.S. 222, 226 (1971); Commonwealth v. Harris, 364 Mass. 236, 240–241, 303 N.E.2d 115, 118 (1973).

Subsection (b). This subsection is derived from Commonwealth v. Novo, 449 Mass. 84, 93, 865 N.E.2d 777, 785 (2007), and Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 202, 689 N.E.2d 845, 847 (1998). “The reason for the rule is that the testimony of a witness in court should not need—and ought not—to be ‘pumped up’ by evidence that the witness said the same thing on some prior occasion.” Commonwealth v. Kindell, 44 Mass. App. Ct. at 202–203, 689 N.E.2d at 847–848. “The trial judge has a range of discretion in determining whether a suggestion of recent contrivance exists in the circumstances.” Commonwealth v. Zukoski, 370 Mass. 23, 27, 345 N.E.2d 690, 693 (1976). However, “the impeachment of a witness by prior inconsistent statements or omissions does not, standing alone, entitle the adverse party to introduce other prior statements made by the witness that are consistent with his trial testimony.” Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 482, 811 N.E.2d 1003, 1009 (2004), citing Commonwealth v. Retkovitz, 222 Mass. 245, 249–250, 110 N.E. 293, 294 (1915). Such statements “should be allowed only with caution, and where the probative value for the proper purpose is clear.” Commonwealth v. Lareau, 37 Mass. App. Ct. 679, 683, 642 N.E.2d 308, 311 (1994), quoting Commonwealth v. Darden, 5 Mass. App. Ct. 522, 528, 364 N.E.2d 1092, 1096 (1977).

The judge may admit a prior consistent statement on direct examination, prior to any impeachment, when a claim of recent contrivance is inevitable on cross-examination. See Commonwealth v. Knight, 437 Mass. 487, 496–498, 773 N.E.2d 390, 399–400 (2002); Commonwealth v. Saarela, 376 Mass. 720, 723, 383 N.E.2d 501, 503–504 (1978).

A prior consistent statement that does not meet the requirements of this subsection nonetheless may be admissible on other grounds. See Commonwealth v. Tennison, 440 Mass. 553, 562–564, 800 N.E.2d 285, 294–296 (2003) (verbal completeness).

Cross-Reference: Section 413, First Complaint of Sexual Assault; Section 611(a), Manner and Order of Interrogation and Presentation: Control by Court; Note to Section 801(d)(1)(B), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness.