Witnesses may be impeached by referring to inconsistent statements the witnesses previously made out of court. Extrinsic evidence of a prior inconsistent statement is inadmissible unless the witness is afforded an opportunity to explain or deny the same and the opposing party is afforded an opportunity to interrogate the witness thereon or the interests of justice otherwise require.59 Such explanation may occur on direct examination, cross-examination, redirect examination, or at any other point in the trial, although the preferred method is to confront the witness with the prior statement before seeking its admission into evidenc.59.1

Extrinsic evidence of a prior inconsistent statement is admissible if a witness denies or does not clearly admit making the statement.60 A prior inconsistent statement admitted for impeachment also constitutes substantive evidence of the facts stated, provided that the prior statement either is (i) inconsistent with the witness’s testimony, (ii) consistent with the witness’s testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, or (iii) one of identification of a person.61 If the prior statement related to a purely collateral matter, the court has discretion to preclude any extrinsic evidence proving the making of the prior statement.62

In criminal cases, a defendant can be impeached with a voluntary prior inconsistent statement which was inadmissible as part of the government’s case in chief, provided that there has been prior disclosure of the statement, so as to allow the defendant to make an intelligent assessment as to whether to testify.63 Thus, a statement obtained in violation of the defendant’s Miranda64 rights, so long as it was made voluntarily, is admissible to impeach the defendant if he or she testifies, as the right to testify in one’s own defense does not extend to permit the commission of perjury.65 Voluntary pre-arrest statements may also be used for impeachment purposes.66 The government may not, however, attempt to impeach a criminal defendant through questions relating to a defendant’s post-arrest silence, as this would conflict with a defendant’s right to remain silent and the correlative right not to be prejudiced by such silence.67 An exception to this rule is when the fact of the defendant’s post-arrest silence is inconsistent with the defendant’s testimony concerning his or her post-arrest behavior.68

59. D.R.E. 613(b). This rule does not apply to admissions of a party-opponent as defined in D.R.E. 801(d)(2). D.R.E. 613(b).

59.1. Robinson v. State, ___ A.2d ___, ___ (Del. 2010).

60. D.R.E. 613(c). See also Dick v. Koutoufaris, C.A. No. 88C-NO-114, slip op. at 6, Gebelein, J. (Del. Super. Jan. 30, 1991), aff’d, 604 A.2d 390 (Del. 1991).

61. D.R.E. 801(d)(l).

62. Wei v. State. No. 510, 1988, slip op. at 5-6, Holland, J. (Del. Dec. 20, 1989) (ORDER), disposition reported at 571 A.2d 788 (Del. 1989) (TABLE).

63. Doran v. State, 606 A.2d 743, 746-48 (Del. 1992).

64. Miranda v. Arizona, 384 U.S. 436 (1966).

65. Weber v. State, 457 A.2d 674, 687 (Del. 1983); Wright v. State, 374 A.2d 824, 831 (Del. 1977). See also Foraker v. State, 394 A.2d 208, 212-13 (Del. 1978).

66. State v. Foraker, 446 A.2d 1105, 1107 (Del. Super. 1982).

67. Bowe v. State, 514 A.2d 408, 411 (Del. 1986).

68. Johnson v. State, No. 105, 1983, slip op. at 3, McNeilly, J. (Del. Mar. 14, 1984) (ORDER), disposition reported at 482 A.2d 765 (Del. 1984) (TABLE).

© 2010  David L. Finger