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Rule 613. Prior Inconsistent Statements, Bias and Interest of Witnesses.
(a)0General Rule. At common law, the traditional ways of impeaching witnesses include the introduction of evidence of prior inconsistent statements and evidence to prove bias or interest. Although Federal Rule 613 governs the manner in which prior inconsistent statements must be offered in federal courts, the Federal Rules never explicitly state that inconsistent statements are admissible and never mention bias or interest as impeachment tools. Alaska Rule 613 specifically states that evidence of prior inconsistent statements and evidence of bias or interest are permissible ways of impeaching a witness. This subdivision governs methods of impeachment and is not intended to alter the rule in Beavers v. State, 492 P.2d 88 (Alaska 1971), allowing impeachment evidence to be considered as substantive evidence.
The right of the criminal defendant to probe a witness for evidence of bias or interest has been recognized by the Supreme Court as being essential to the right of confrontation guaranteed by the sixth amendment. See Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347 (1974). Alaska cases have noted that the mere possibility of future criminal charges against a witness is sufficient to permit counsel wide latitude in probing the possibility of bias or interest.
[G]reat liberality should be given defense counsel in cross-examination of a prosecution witness with respect to his motive for testifying. Cross-examination to show bias because of expectation of immunity from prosecution is one of the safeguards essential to a fair trial, and undue restriction in such cross-examination is reversible error without any need for a showing of prejudice.
R.L.R. v. State, 487 P.2d 27, 44 (Alaska 1971). See also Evans v. State, 550 P.2d 830, 836-40 (Alaska 1976), and the second appeal, 574 P.2d 24 (Alaska 1978).
(b)0Foundation Requirements. This rule partially reinstates the foundation requirement necessary at common law as a precondition to the introduction of extrinsic evidence to prove prior inconsistent statements of bias or interest. See generally Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 247 (1967). While fairness and efficiency generally are promoted by laying a foundation, this rule recognizes that at times the requirement must be modified or waived in the interests of justice.
Laying a foundation for impeachment by prior inconsistent statements generally requires asking the testifying witness to identify the statement after being reminded of its substance and to whom it was made, and either to admit having made the statement and explain the circumstances, or to deny it. See McCormick (2d ed.) § 37, at 72.
Federal Rule 613(b) greatly relaxes the rigid common law foundation requirement in an attempt to solve the following problems:
(1)0the laying of a foundation may inadvertently have been overlooked;
(2)0the impeaching statement may not have been discovered until later;
(3)0premature disclosure may on occasion frustrate the effective impeachment of collusive witnesses.
Letter from Edward W. Cleary to Hon. William L. Hungate, May 8, 1973, in Supp. to Hearings Before the Subcommittee on Criminal Justice to the House Comm. on the Judiciary, 93rd Congress, 1st Sess., at 74-75 (1973).
Section (b) (1) of this rule alleviates these problems giving the trial judge the discretion to permit witnesses to be recalled for the purpose of laying a foundation when, (1) the failure to do so earlier was not intentional, as in the situation where discovery of the prior inconsistent statement was late; or (2) the failure to do so earlier was intentional, but for good cause: for example, when prematurely alerting collusive witnesses to evidence would work a substantial tactical disadvantage. Section (b) (1) also permits the trial judge to dispense with the foundation requirement altogether if the interests of justice would be served. The negligent omission of counsel to lay a foundation could be excused here if a barring of the evidence would lead to an unjust result.
Section (b) (2) eliminates the rule in Queen Caroline's Case, 2 B. & B. 284, 286-90, 129 Eng. Rep. 976 (1820), which required that the examiner show a witness a prior written statement before questioning him about it.
The rule requiring the writing to be shown allowed the witness to refresh his memory and thus protected the witness from the embarrassment of denying an inconsistent statement, only to be confronted with it in writing. It has been criticized as giving the witness too much opportunity to fabricate explanations of apparent inconsistencies. See Wigmore §§ 1259-1263; McCormick (2d ed.) § 28, at 55-57. Alaska R. Civ. P. 43(g) (11) [c], superseded by this rule, followed the Queen's Rule. This rule, however, anticipates that the foundation requirement shall provide the witness with a fair opportunity to refresh his memory with the prior statement without providing the witness with an unfair advantage over the impeaching party.
Subdivision (b) (2) provides that opposing counsel may see or learn of any statement used for impeachment purposes when it is actually used. Hence, the lawyer who believes that the cross-examiner is attempting to distort a prior statement or misuse it can ask the court to prevent improper tactics.
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Last Modified 7/14/1999