I was listening to a podcast about a murder trial. At the first trial, the coroner reported the time of death was 8-10pm. That timeline didn’t work out for the prosecution so for the retrial the coroner revised the time of death to 1-3am. Could the defense raise the contradiction with his first trial testimony to raise reasonable doubt of is cross-examination limited to testimony at that specific trial?
It can be, and under certain situations and guidelines is an exception to hearsay rules. If the actual witness is available to cross examine I don’t see why it couldn’t be brought up. There may be different dynamics if the testimony were given to a grand jury.
I am not a lawyer, this is not legal advice.
yes, what @pkbites says - it will depend on the rules of evidence in the particular jurisdiction.
My understanding is that a past inconsistent statement is almost always available to cross-examine the individual, not for the proof of the content of the earlier statement, but to attack the witness’ credibility:
“So, you’ve previously sworn under oath X. Now you’re swearing under oath that it’s not X, but Z. Were you wrong then, or are you wrong now?”
“Were you lying then, under oath, or are you lying now, under oath?”
“What did the prosecution do for you to get you to change your story so conveniently to match the new evidence?”
“Why should the jury believe a word you’re saying?”
(Statements above are hypothetical only, to illustrate the problems with calling a witness who has changed their testimony under oath.)
In some jurisdictions, the laws of evidence may have been changed to allow the previous statement to be considered as proof of its contents, not just to impeach the credibility of the witness. That will depend on the laws of the particular jurisdiction.
So, you’d have to consult a lawyer in your jurisdiction to get the most up-to-date information, not rely on strangers on a message board.
I’m not in any shape a lawyer, but I would imagine it certainly would not be a stretch to enter into evidence the previous testimony as proof that the witness once believed something different than they believe now, and it could be used as the start of a line of questioning involving why their mind changed. I don’t see how it could be used as evidence of its own truth though. The whole rigamarole that ensues from the questioning about why their mind changed would become evidence in this trial for why the previous testimony might be true, but I don’t see how it could be used as direct proof without understanding the motivation behind the change of testimony. It could be something like “We discovered after trial that our machine that did X had not been calibrated correctly and gave false readings. We reran the machine on the evidence after we went to trial again and it gave us a different answer, which we believe is more in line with the facts.” They then could produce records showing how the machine was determined to be miscalibrated after the previous trial and how they know it was better calibrated now.
If some jurisdictions posit that a person making testimony under oath will always know the truth about what they are talking about, that seems very strange. Expert witnesses are often called on to bring in their informed opinions, and often both sides get different experts that say different things despite the same fact pattern being used by both experts. Obviously in this case there might be an issue with a witness unethically changing their mind to help the prosecution, but I’m thinking about garden variety changes in procedures or whatever that would cause a legitimate change in testimony. (And I don’t just mean the answer to “How old are you?” or “How much experience do you have in this field?”)
I assume from what you’re saying that’s any previous statement not just under oath, is fair game for challenging veracity, provided there is some evidence they said it?
“But when first questioned by police you said ‘X’ and now you say ‘Y’ etc.etc …”
Anything anyone said in an earlier trial would be part of the transcript of that trial. I think trial transcripts are generally public. That should at least suffice as proof of what someone said, and usually under oath. Why would there be an obstacle to introducing a transcript from a previous trial?
Absolutely. In every US jurisdiction (as far as I know) a witness’s prior inconsistent statement can be used to “impeach” the credibility of the witness. There are procedural nuances to how you do it, but it’s pretty standard.
Under the Federal Rules (and in a minority of states), prior sworn inconsistent statements can be used as substantive evidence of the underlying claim.
So, in your example, in all jurisdictions, you can use the previous testimony that the time of death of 8-10 to discredit the witness now testifying that it was 1-3. In the federal system (and some states), you can also use the previous testimony as evidence that the time of death was actually 8-10 (I don’t know how persuasive it is).
It’s not a problem with using the transcript. It’s how broad a use you can make of it.
The traditional position at common law was that since the statement was not made in the court that is hearing the case, it is not admissible for the proof of the contents of the statement. Rather, it could only be used to cross-examine the witness who made the previous statement, to show that they are not a reliable witness. The transcript could be used in that cross-examination, but only for the limited purpose of challenging the credibility of the witness.
But as Falchion indicates, in some jurisdictions the previous statements can be introduced as proof the content of the statement, not just for the purpose of challenging the credibility of the witness
Depends on the law of each jurisdiction.
But isn’t there a well-established presumption that statements made under oath are true unless shown otherwise? There must be, otherwise no trial could ever be taken seriously.
Yes, as a general rule, prior inconsistent statements can be used to impeach the credibility of the witness. If they have changed their story, why? Were they mistaken earlier, as glowacks suggests? or have they responded to a request from the prosecutor? or are they just confused? are they a liar?
One of the issues is the opportunity for cross-examination by the opposing party. So under the Federal Rules, for example, if the declarant is unavailable, you can use prior sworn testimony if it is being offered against a party who had “an opportunity and similar motive to develop it by direct, cross-, or redirect examination.”
If the declarant is available, you should have him testify.
Nope. People can be under oath and lie through their teeth. Or be mistaken as to what they are telling. Or have different perspectives on what has happened. The oath doesn’t resolve those points.
Opposing sides may call witnesses who testify in contradiction to each other. They’re all under oath.
The lawyer’s job is to test that through cross-examination, probing whether the person is credible and should be believed by the Court.
The jury’s job is to weigh all the evidence, assess credibility, decide who should be believed and on what points, and render a judgment based on their overall assessment of the evidence.
The jury has the harder job.