TITLE SIX — WITNESSES
Rule 613. Prior Statements of Witnesses, Limited Admissibility
Prior Inconsistent Statements.
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.
Examining Other Witness. Extrinsic evidence of a prior inconsistent statement by a witness, other than a witness covered under Subsection (a)(1), is admissible whether or not the witness was afforded an opportunity to explain or deny the inconsistency.
Disclosure of Extrinsic Evidence. In examining a witness, other than a witness covered under Subsection (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.
Collateral Matter. Extrinsic evidence to impeach a witness on a collateral matter is not admissible as of right, but only in the exercise of sound discretion by the trial judge.
Prior Consistent Statements.
Generally Inadmissible. A prior consistent statement by a witness is generally inadmissible.
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.
What Constitutes a Prior Statement. A prior statement within this rule is a person’s oral assertion, written assertion, or nonverbal conduct intended as an assertion, as Rule 801(1) defines it, made otherwise than while testifying in the present proceeding. The following are prior statements within this rule:
a message posted in a channel of this State, including the proceeding communications of another case;
a direct message or other private communication;
a statement made in the game environment, including one made over the law enforcement radio;
a statement recorded in an audio or video recording, however made;
a statement contained in a filing, an affidavit, a sworn petition, a summons return, a police report, or any other document; and
testimony given in another proceeding, at a deposition, before the grand jury, or at a probable cause hearing.
Inconsistency. A prior statement is inconsistent where it is contrary to the witness’s present testimony, where it omits a material fact which the witness now asserts and which it would have been natural to state, or where the witness now professes an inability to recall a matter which the prior statement asserts and the court finds the pro-fessed lack of memory to be feigned. A trivial or immaterial variance is not an inconsistency.
Authentication of an Electronic Prior Statement. A prior statement described in subdivision (3)(a), (b), (c), or (d) shall be authenticated as Rule 901 and Rule 1108 provide before extrinsic evidence of it is received. Testimony that the witness made the statement, the distinctive characteristics of the statement taken with the circumstances under Rule 901(2)(d), and confirming circumstances under Rule 901(2)(h) are each a sufficient means of authentication. Neither expert testimony nor proof of exclusive access to the account is necessary.
Limited Admissibility; Instruction. A prior inconsistent statement received under subdivision (1) is admitted upon the credibility of the witness only, and is not evidence of the truth of the matter it asserts, unless it is independently admissible under Rule 801(4), Rule 803, or Rule 804. Upon timely request the court shall restrict the evidence to its proper scope and instruct the fact finder accordingly, as Rule 105 requires. A prior consistent statement received under subdivision (2)(b) is admitted for the limited purpose there stated.
Prior Statements That Are Not Hearsay. Nothing in this rule limits the admission, as substantive evidence, of a prior statement of a declarant-witness which satisfies Rule 801(4)(a), or of a statement of an opposing party which satisfies Rule 801(4)(b).
Statements Given Under a Grant of Immunity or a Cooperation Agreement. A prior statement made by a witness under a grant of immunity conferred pursuant to 6 R. Stat. § 131.303 and Rid. R. Crim. P. 17.1, or pursuant to a cooperation agreement, may be used to impeach the witness under this rule, and Rule 1102 governs the admissibility of the agreement itself.
Suppressed Statements. The voluntary statement of a defendant which has been suppressed may nevertheless, in limited circumstances, be used for impeachment purposes, as Rule 505 provides. Where such a statement was used before testifying to refresh the witness’s memory, Rule 612(2)(c) applies.
Preservation of the Statement. A party who examines a witness upon a prior statement shall preserve the statement and shall produce it upon request to opposing counsel under subdivision (1)(c). Where the statement exists only in a channel, a recording, or a log, the party shall preserve a copy of it, and the destruction or alteration of it is governed by Rule 1101.