Prior Inconsistent Statements: The Simple Virtues of the Original Federal Rule

How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the facts asserted. In 1972, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) proposed an innovative rule permitting all prior inconsistent statements to be used both for impeachment and as substantive evidence—a sea change in practice.

Congress, however, torpedoed the proposal for reasons that rang hollow in the mid-1970s and which remain so today. Experience has proven the Committee’s wisdom.