What every Massachusetts criminal lawyer needs to know
about impeachment law1
As a criminal defense lawyer, frequently I have been confronted
with disagreement, misinformation, ignorance and occasionally even
malice, when I tried to impeach or object to the impeachment of a
witness. In at least one case, the resolution of a disputed battle
was outcome-determinative.2 I am very fortunate to have
learned evidentiary nuances from some of the best lawyers and
judges the commonwealth has to offer. I have found myself fighting
the same battles with judges and adversaries over and over again.
However, I have also been victimized by my own ignorance of the
law. Over the years, I have compiled a list of impeachment issues
that seem to repeat themselves in criminal cases.
Impeachment traditionally is thought of as an advocate's weapon:
equal parts art and science.3 When done properly,
impeachment is perhaps the most deadly arrow in the cross
examination quiver.4 However, this article is not about
impeachment technique. Nor is it about the constant strategic
issues facing litigants: Should I impeach or not? Does it matter if
this evidence comes in for all purposes? Should I confront the
witness I am trying to impeach? Rather, my intent is to raise
common evidentiary issues relating to the rich, often misunderstood
and nuanced law that governs impeachment, and to provide the
correct answers, or at least an analytical framework for
approaching the issues.5
Ian Defendant is charged with one count of rape. On New Year's
Eve, Ian went to a party in Boston with his friend Tommy. At the
party, Tommy re-introduced Ian to his younger sister Ally Victim.
Ally and Ian had met before in passing a couple of times. There
were approximately 20 people at the party. The party was thrown by
Felicia Complaint. Everyone at the party was over 18, but the
majority of the people were under 21. Felicia was 20 at the time of
the party. The apartment was owned by Felicia's parents, who were
out of town for the night. Ally was 18 at the time of the party.
Marijuana cigarettes were being passed around
liberally.7 Felicia served beer, mixed drinks and
Ally arrived at the party at around 10 p.m., and Ian arrived
about a half an hour later. At about 2 a.m., Felicia kicked
everyone out of the party except Ally, Ian and Tommy, whom she was
dating at the time. By all accounts, Tommy, Felicia and Ian were
buzzed if not drunk. At about 2:30 a.m., Tommy and Felicia went to
bed in Felicia's bedroom. Ally and Ian stayed up to watch TV. At
approximately 3:30 a.m., Ally went to sleep in Felicia's guest
room. Ian lay down on the couch to fall asleep.
At around 4:30 a.m., Tommy got up to go to the bathroom and
heard a squeaking noise coming from the guest room. When he opened
the door, he saw Ian lying on top of Ally. Ally's pants were down
by her ankles. When he entered the room, Tommy saw his sister push
Ian off of her and yell: "Get off of me." Tommy went
ballistic. Ally got up and stood between Tommy and Ian. She started
crying and said: "I don't know what was happening, I just woke
up, I am not sure what happened." Tommy yelled at Ian to leave
or he would "kill him." Ian ran out of the house saying
"I didn't do anything."
As he left the building, Ian passed by Danny the Doorman. Danny
later told the police that he saw Ian run out of the building,
partially concealing his face with a newspaper.
Tommy woke up Felicia and they started talking to Ally. When
they asked her what happened, she said: "I must have been
raped, I went to bed drunk and woke up and he was there and his
penis was out."
At about 5 a.m., Felicia's parents Mr. and Mrs. Complaint
unexpectedly came home early from a weekend away. Mrs. Complaint
pulled Ally aside to talk to her. Ally was crying and visibly
upset. Before she was asked a question, Ally blurted out, "Ian
forced me to have sex."
Tommy called the police. When the police arrived, Detective
Dooright, the lead investigator in the case, interviewed Tommy.
Tommy told the detective that on the night of the party, Ally had
commented that "Ian was kind of creepy and looking at her
The next morning, Ian was arrested. The following day, Ian was
arraigned in the BMC Central Division and charged with rape. Ian
was held on $10,000 bail. Polly Defender was assigned to represent
Ian. Peter Attorney was the prosecutor.
The morning after the party, Ally refused to go to the hospital.
She did provide the police with her underpants and the sheets from
the bed. Semen was located on both the underpants and the sheet.
The court issued an order for the production of Ian's DNA, and
following DNA testing, Ian's DNA was determined to be a positive
match to the semen left on the sheets.
Two days after the arraignment, Ralph Rat was sharing a cell
with Ian and they started talking about their cases. According to
Ralph, Ian told him that "Ally had been flirting with him all
night. She was pretty tipsy. He followed her into the guest room,
they started kissing and one thing led to another." Ralph
asked Ian how Ally had responded. According to Ralph, Ian said
"She seemed to like it, she did say no once or twice, but her
words were slurred and I don't think she really meant it."
Ralph wrote a letter to the DA's office about what Ian had said to
him. Ralph had a meeting with Detective Dooright and Peter
Prosecutor. After the meeting, Peter offered Ralph a deal to
testify. Through investigation, Polly learned that Ralph had an
open-ended arrangement with the U.S. Attorney's Office that
predated his jail cell conversation with Ian. If Ralph discovered
any useful information about any pending criminal cases, his
cooperation would be taken into consideration if he pled guilty to
his pending charges in federal court.
About a month after the arraignment, a probable cause hearing
was held in the BMC. Probable cause was found and the case was
bound over to the Suffolk Superior Court for trial. Mrs. Complaint
testified at the probable cause hearing. She testified that on that
morning at around 5 a.m., Ally had told her that "Ian forced me
to have sex."
Polly filed a motion to suppress the statement made to Ralph,
and the judge ruled the statement was obtained in violation of
Ian's right to counsel under the 6th Amendment to the U.S.
Constitution and Article 12 of the Massachusetts Declaration of
Polly hired a private investigator to speak to everyone at the
party. Paul Drake, the investigator, spoke to Felicia. Felicia said
that she was "pretty busy hosting the party, but she did keep a
close eye on Ally because she did not want her to get really drunk.
She said she saw Ally drink a couple of beers but nothing else. She
had no personal knowledge about whether Ally smoked any pot and she
is pretty sure that Ally did not do any jello shots." She
believed, "Ally may have been a little buzzed, but she did not
seem too bad."
Mr. Drake also spoke to Felicia's mother. Mrs. Complaint told
him that she "could not really understand what Ally told her
that night but candidly she was more concerned about being charged
criminally or sued civilly because it happened at her apartment and
underage people were drinking."
Right before trial, Felicia told Peter Prosecutor that she
"was watching Ally most of the night and Ally must have had
five beers, definitely smoked some pot and [she] saw Ally do at
least three Jell-O shots." During trial preparation, Tommy
also told Detective Dooright and Peter Prosecutor that his sister
had told him in the past that "Ian was cute" and she
wanted to know "if he had a girlfriend."
The prosecution's theory is that Ally was too incapacitated to
consent. The defense theory is that there was a consensual sexual
III Legal issues:
A. Can Ian's statement to Ralph be used against him
Against the advice of counsel, Ian insists on testifying at
trial. Because the statement to Ralph was suppressed, it is not
admissible for all purposes. If it had not been suppressed, the
statement would have been admissible as a confession or an
admission. In this scenario, the statement is inadmissible in the
commonwealth's case-in-chief. Once Ian takes the stand, however, it
is admissible to impeach him even though it was obtained in
violation of his 6th Amendment9 and Article
1210 rights to counsel.
If the statement had been taken in violation of Ian's
Miranda rights, the answer to the question would be the
same.11 However, if a judge had determined that the
statement was involuntary, or the result of excessive coercion by
the police, the statement would be inadmissible for all
Because the statement is so damaging, Polly should object,
request a limiting instruction and propose a jury instruction that
reflects the limited purpose for which the jury can consider the
statement. If Polly fails to object to the substantive use of the
statement, and seek a limiting instruction, Ian's statement to
Ralph would be admissible for all purposes. The distinction may be
important in this case, because if Peter is allowed to argue the
statement substantively, Ian's acknowledgment that Ally said "no"
can and will be argued as the truth.13 The "fact" that
the statement was even made is harmful enough, but it would be even
more harmful as substantive evidence. Furthermore, any fact that is
admissible for all purposes can also be used to defeat an otherwise
legitimate motion for a required finding of not
B. Before impeaching Felicia with her prior
statement to the private investigator, does Polly have to confront
Felicia was very credible on direct examination. She testified
consistently with what she told Peter and Detective Dooright right
before trial: that Ally drank several beers, did several jello
shots and smoked pot. Polly called Mr. Drake to impeach Felicia
without having confronted her on cross examination with her prior
inconsistent statement. Peter objected, arguing that Polly was
required to confront Felicia first.
In Massachusetts, there is no requirement that counsel first
confront an adverse witness before impeaching her.15 For
the purpose of impeaching the testimony of an adverse witness, the
party "may show that the witness has made prior inconsistent …
statements, either by eliciting such statements upon cross
examination of the witness himself or proving them
by other witnesses."16 Therefore, a lawyer has the
strategic option of calling the witness who heard or took the
inconsistent statement, "proving up" or completing the impeachment
collaterally rather than first calling the declarant's attention to
her prior statement.17 This tactical choice enables the
advocate to avoid the possibility of a messy confrontation with a
witness whom she believes may either offer a palatable explanation
for the inconsistent statement, or who may convincingly flat-out
deny ever making the contrary statement.18 The trial
judge always has the discretion to exclude this or any other type
of impeachment if it only involves a collateral issue.19
In this instance, however, the inconsistency is clearly material
and Polly would have the absolute right to impeach Felicia,
independent of whether she chose to confront the witness first.
C. Can Polly argue Felicia's prior inconsistent
After losing his argument that Polly could not impeach Felicia
without first confronting her with her prior inconsistent
statement, Peter neither objects to the impeachment nor seeks a
limiting instruction. In her closing, Polly wants to argue the
prior inconsistent statement, that Ally only had two beers,
substantively. Can she?
The general rule is that "prior inconsistent statements of a
witness … may be used for the limited purpose of impeaching a
witness."20 This rule derives from the principle that an
out-of-court statement introduced for the exclusive purpose of
impeachment is not hearsay.21 However, when there has
been no objection and no request for a limiting instruction, a
prior inconsistent statement may be considered as substantive
evidence.22 Therefore, Polly may properly argue the
contents of Felicia's prior statement as a fact or as the
As a general proposition, this distinction may not be terribly
meaningful. In fact, the Supreme Judicial Court ("SJC") has
acknowledged as much.23 This hypothetical highlights one
of the rare exceptions to this proposition, a circumstance where
the distinction can be significant.24 If Peter had
objected and requested a limiting instruction, Polly would have
been confined to attacking Felicia's credibility by pointing out
that she had told different versions. Polly's ability to argue
substantively, that is, as the truth, Felicia's statement that Ally
had only two beers, is a necessary cornerstone of her defense,
bolstering the argument that Ally was not incapacitated, but rather
that she was both capable of consenting and in fact did
The standard jury instructions used by both the Superior Court
and District Court explicitly limit the use of prior statements to
the assessment of credibility.26 Therefore, Polly would
want to request a jury instruction accurately reflecting how the
evidence could be used.
D. Can Polly impeach Mrs. Complaint's prior
testimony, even if she does not testify at trial?
Felicia's mother successfully invokes her 5th Amendment right
against self incrimination. Peter then convinces the judge in
limine that her invocation renders Mrs. Complaint legally
unavailable as a witness, and Polly had sufficient opportunity to
cross examine her at the probable cause hearing and, therefore, her
previous testimony regarding Ally's allegation that "Ian forced
me to have sex," is admissible at trial.27 In her
case-in-chief, Polly calls Paul Drake to impeach Mrs. Complaint's
statement to the police with the inconsistent statement she gave to
the defense investigator. Peter objects, arguing that Polly can't
impeach a witness who did not testify.
A statement of a non-testifying witness, that has been deemed
admissible as an exception to the hearsay rule, may be impeached in
the same manner as if the witness had actually
testified.28 The rationale is that it would be
fundamentally unfair for one side to derive a windfall because an
adverse declarant was unavailable and her previous statement
constituted an exception to the general evidentiary principle
barring hearsay. The statement should be subject to the same rules
of impeachment as the declarant would have been subjected to had
she testified. "Otherwise, the fact finder [would be presented
with] a distorted and incomplete view of the
evidence."29 Therefore, Polly should be allowed to
impeach the declarant's (Mrs. Complaint) credibility by calling
Paul to testify that Mrs. Complaint told him she was not sure what
Ally told her and that she, Mrs. Complaint, was concerned about her
E. Can Polly impeach Ally if Ally says "I don't
On direct, Ally testifies that she was raped and that she saw
Ian pull her pants down. On cross examination, Polly confronts Ally
with the prior statement she made to Tommy the night of the
incident in which she claimed she did not know what happened. Ally
responds that she "can't remember." Peter objects to the question
and asks the judge to instruct the jury to disregard the question
because if Ally cannot remember, then there is nothing to impeach.
How should the judge rule?
The answer depends on exactly what Ally is claiming she does not
remember. Generally, "there is no inconsistency between a present
failure of memory on the witness stand and a past existence of a
memory."30 However, this principle of law is often
misunderstood. The analysis begins with the question: What is it
that Ally cannot remember? When a witness is found to have "no
present memory as to the substance of a prior statement,
its admissibility is precluded."31
In this case, Ally is not claiming a present loss of memory
about the incident, because she testified on direct to substantive
facts contradicted by her previous statement. As such, she must be
alleging either that she does not remember talking to Tommy or she
does not remember telling Tommy that she does not know what
happened. In either case, Polly may impeach her with her prior
inconsistent statement.32 Of course, the impeachment
would have to be completed during Tommy's testimony.
If, on the other hand, on during direct examination, Peter asked
Ally "Did you see Ian do anything to you?" and she answered that
she "did not remember," Ally would have no present memory of the
fact being sought or contested. In that scenario, Polly would be
barred from impeaching Ally with her prior statement that she did
not see anything happen. However, under those circumstances, if the
testimony was important to Polly to elicit, she might have one more
card to play: she could ask the judge to find that the present loss
of memory was feigned.33 If the judge agreed, then the
judge could permit Polly to introduce the prior inconsistent
F. Can Polly impeach Detective Dooright if he
testifies to a fact that was omitted from his police
On direct examination, Detective Dooright testified that when he
arrested Ian, Ian laughed and said, "She asked for
it."35 Polly wants to impeach Dooright with the
fact that this statement does not appear in any prior police
A witness may be impeached with an omission from an earlier
statement if the omission is "inconsistent with a later statement
of fact when it would have been natural to include the fact in the
initial statement."36 Accordingly, Polly would be
entitled to cross examine the officer, and highlight how Ian's
admission was not contained in Dooright's initial police
report.37 Finally, Polly should propose a jury
instruction that accurately reflects this principle of
G. Can Peter impeach Danny the Doorman with his
prior statement to the police?
Peter calls Danny the Doorman as a witness. Danny testifies that
he saw Ian run from the apartment. When Peter asks Danny if he
noticed anything else, Danny says no. Peter is unable to
successfully refresh Danny's memory. Peter then tries to impeach
Danny with his prior statement that he saw Ian holding a newspaper
up, concealing part of his face. Polly objects, arguing that Peter
cannot do that.
A party may not call a witness solely to impeach him with a
prior inconsistent statement that is contrary to his current trial
testimony.39 Otherwise, the jury might infer that the
question itself, attempting to elicit the contradiction, is
entitled to some evidentiary weight.
However, if another probative reason to call the witness exists,
then the party may be permitted to call and then impeach its own
witness.40 In the hypothetical, Polly would want to
argue that Peter's exclusive reason for calling Danny was to
impeach him and any other proffered reason is subterfuge. Peter
should counter that he had another legitimate reason for putting
Danny on the stand: Danny is the only witness who can testify that
he saw Ian running from the apartment, a material fact that is
admissible as consciousness of guilt evidence.41
H. Are there any special rules governing the
impeachment of a party's own witness?
What if Peter was intrigued by Polly's strategic choice in not
confronting Felicia with her prior inconsistent statement and is
considering the same tactical decision with Danny? Can he avoid
confronting Danny and impeach him extrinsically through Detective
Peter does not have the same option that was available to Polly.
The difference is that Polly was impeaching an adverse witness. In
fact, this precise scenario is controlled by statute, Mass.
Gen. Law. ch. 233 § 23: "The party who produces a witness …
may also prove that he has made at other times statements
inconsistent with his present testimony; but before proof of such
inconsistent statements is given, the circumstances thereof
sufficient to designate the particular occasion shall be mentioned
to the witness, and he shall be asked if he has made such
statements, and, if so, shall be allowed to explain
them."42 Therefore, if the judge accepts Peter's
argument in number 7, that he is not calling Danny just to impeach
him, and if he follows the steps prescribed by the statute, Peter
may impeach Danny the Doorman with what he previously told
I. If Polly successfully impeaches Tommy, may Peter
rehabilitate Tommy with his "prior" consistent
On direct examination, Tommy testified that his sister told him
that she thought "Ian was very strange and he always stared at
her."44 Polly impeached Tommy with his prior
statement, made to Detective Dooright, that his sister had told him
"Ian was cute" and she was curious "if he had a
girlfriend." Peter wants to rehabilitate Tommy with the
statement he made to the police the night of the incident: Ally had
told him she thought Ian "was creepy and he was always looking
at her funny."45 Polly objects, arguing the
previous statement is inadmissible hearsay.
The law surrounding the admissibility of prior consistent
statements is widely misunderstood. Simply because a witness said
something consistent with his trial testimony on another occasion
does not magically render it admissible. In fact, the general rule
"is that a witness's prior consistent statement is not admissible,
even though the witness's prior inconsistent statement has already
been admitted."46 Most consistent statements are
hearsay. Moreover, the inference of unreliability based on the
making of an inconsistent statement does not disappear solely
because, at some previous time, a witness said something consistent
with his trial testimony.47
A prior consistent statement is admissible to rehabilitate a
witness in very narrow circumstances, specifically; such a
statement can be admitted either 1) to rebut a claim that the
witness's in-court statement is "of a recent contrivance" or 2) if
the statement "is the product of a particular inducement or
bias."48 However, before the prior consistent statement
can be admitted, "it must appear that the statement was made before
the witness possessed a possible motive to fabricate or
before the inducements or bias …
The seminal and often disputed question is whether the adverse
party is suggesting the declarant's current testimony is the result
of a recent contrivance.50 Polly would argue that she is
not suggesting that Tommy is prevaricating now for the first time,
but rather, that he has been lying all along. Furthermore, Tommy's
motive to lie and to corroborate the allegation of rape arose the
moment he entered the room and thought Ian was assaulting his
sister.51 Thus, Tommy's motive to fabricate his
testimony existed before he first spoke to the police. If
that argument prevails, Polly would not be suggesting that Tommy's
testimony was a recent contrivance, but rather a contrivance that
existed before he made the initial consistent statement to the
Peter would come at this reasoning by arguing that Polly is
suggesting Tommy is lying on the stand for a reason that did not
exist when he first spoke to the police and, therefore, the prior
consistent statement should be admitted.
If the judge rules in Peter's favor, Polly should request an
appropriate instruction, limiting the jury's consideration of the
prior consistent statement to assessing Tommy's
Properly navigating the nuances of impeachment law can be
challenging. In the heat of the moment, recognizing some of the
subtle issues and advocating effectively is no easy task. Often,
knowing the arguments, making proper objections and requesting
appropriate instructions from the judge can play an important role
in a criminal trial.
1. Although criminal practitioners are the target audience
for this article, most of the legal principles govern civil trials
2. In one case, I have a very vivid memory of fighting
with both the judge and my adversary before, during and after
closing arguments and before, during and after the jury charge
about whether I could argue a critical prior inconsistent statement
as substantive evidence. The answer, like most evidentiary
questions, is it depends. It depends on the circumstances; it
depends on your knowledge of the law and it depends on your
persuasive abilities as an advocate.
3. If cross-examination is "beyond any doubt the greatest
legal engine ever invented for the discovery of truth," then
impeachment would, beyond any doubt, be a V-8. See 5J. Wigmore,
Evidence § 1367, p. 32 (J. Chadbourn rev., 1974).
4. Robin Hood would have been a fabulous litigator (a
public defender of course) because he had deadly aim and he always
had that one special arrow to penetrate deep into the heart of his
5. Massachusetts has a rich and distinct common law
evidentiary tradition. The case law often references the
Massachusetts Proposed Rules of Evidence (1980). Those rules, which
essentially echo the Federal Rules of Evidence, have never been
codified. The SJC "invited parties to cite the rules in their
briefs." Announcement Concerning the Proposed Massachusetts Rules
of Evidence (December 30, 1982); Commonwealth v. Daye, 393
Mass. 55, 66 (1984). At times, Massachusetts appellate courts have
relied on the value of the proposed Rules "as a comparative
standard for the common law evolution of evidentiary law."
Daye, 393 Mass. at 66. Occasionally, the SJC has
specifically adopted the principles embodied in individual
provisions of the proposed rules. See Daye, 393 Mass. at
75; Commonwealth v. Sineiro, 432 Mass. 735, 742 (2000);
see generally Massachusetts Guide to Evidence (2008)(SJC
Advisory Committee on Evidence law relies on language in Proposed
Rules of evidence when it accurately reflects current Massachusetts
Some of the answers to my hypothetical questions are unique to
Massachusetts law. Where appropriate, I briefly contrast the answer
with federal law. However, I offer one important caveat: this
article is about litigating in Massachusetts state court, not the
Federal District Court or any other jurisdiction, for that
6. The hypothetical is loosely based on an amalgamation of
cases I have been involved in. However, that fit is loose and any
perceived similarities between real cases and real people and my
fact pattern are merely coincidental, at least for the most
7. To the extent it may be relevant, the party took place
before the passage and effective date of Ballot Question 2, the law
decriminalizing possession of an ounce or less of marijuana.
8. See Commonwealth v. Murphy, 448 Mass. 452,
465-72 (2007) (SJC concludes that under both the 6th Amendment and
Article 12, a jail house informant who has a general cooperation
agreement with the government does not have to target a specific
defendant to qualify as an agent of the government).
9. See Kansas v. Ventris, 129 S. Ct. 1841,
1847(2009); Michigan v. Harvey, 494 U.S. 344, 348
10. The precise issue clarified by the Supreme Court in
Ventris has not been decided by the SJC under Article 12.
See generally Commonwealth v. Anderson, 448 Mass. 548,
556-57 (2007) (stating, as a general proposition, the right to
counsel provision of Art 12 has been interpreted to afford the
accused the same protections as the 6th Amendment). However,
because the SJC has interpreted Article 12 to provide greater
protection for criminal defendants than its federal counterpart in
certain circumstances, Polly should continue to object, citing
Article 12, in the hopes that the issue will be decided differently
under the Massachusetts Constitution. See, e.g. Commonwealth v.
Mavredakis, 430 Mass. 848, 858-60 (2000); Murphy, 448
Mass. at 465-68. The substantive argument would essentially mirror
the dissent in Ventris.
11. Harris v. New York, 401 U.S. 222, 225-26
(1971); Commonwealth v. Harris, 364 Mass. 236, 237
12. New Jersey v. Portash, 440 U.S. 450, 458-59
(1979); Harris, 364 Mass. at 237.
13. Contra Commonwealth v. Woods, 455 Pa.1, 4-5
(1973) (a statement obtained in violation of a testifying
defendant's constitutional rights is not admissible for impeachment
purposes if it corroborates the government's case).
14. See, e.g.,Commonwealth v. Costello, 411 Mass.
371, 378 (1991) (SJC overturned conviction because absent
impermissible substantive reliance on a prior inconsistent
statement, the jury heard insufficient evidence to convict).
15. Peter would have been correct in federal court.
See Fed. R. Evid.613(b) (requiring counsel to afford the
witness the opportunity to explain or deny the statement before any
extrinsic evidence of an inconsistent statement may be
16. Robinson v. Old Colony St. Ry Co., 189 Mass.
594, 595 (1905) (emphasis added); see Commonwealth v.
West, 312 Mass. 438, 440 (1942).
17. Sirk v.Emery, 184 Mass. 22 (1903); see
also Commonwealth v. Street, 56 Mass. App. Ct. 301, 309 (2002)
(holding extrinsic evidence of an inconsistent statement is
admissible in Massachusetts even without cross examination).
Compare Hubley v. Lilley, 28 Mass. App. Ct. 468, 472
(1990) (finding opposing counsel is always entitled to see the
inconsistent statement upon request).
18. Peter would not be precluded from recalling Felicia to
explain or deny the inconsistency.
19. Street, 56 Mass. App. Ct. at 309-10.
20. Commonwealth v. Jones, 432 Mass. 623, 627
(2000); cf. Advisory Committee Notes to Fed. R. Evid.
801(d) ("Prior inconsistent statements traditionally have been
admissible to impeach but not as substantive evidence").
21. Commonwealth v. Donnelly, 33 Mass. App. Ct.
189, 197 (1997).
22. See Commonwealth v. Luce, 399 Mass 479,
23. Commonwealth v. Daye, 393 Mass. 55, 69 (1984)
("juries cannot, and perhaps, should not be expected to
discriminate between impeachment and probative use of inconsistent
statements"); cf. Commonwealth v. Bregoli, 431 Mass. 265,
278 (2000) (prosecutor's improper use of limited evidence
substantively was clearly error, but because it did not appear to
influence the jury, the error was deemed harmless). Most trial
lawyers whom I have asked accept this general proposition and
frequently make the tactical decision not to object under similar
24. There are other circumstances where a prior
inconsistent statement may be argued substantively. See e.g.,
Jones, 432 Mass. at 627 (when a witness adopts the prior
statement as true it is admissible for all purposes; [accord Fed.
R. Evid, 801(d)(2)(B)]. See also Commonwealth v. Le, 444
Mass. 431, 439-41 (2005) (changing the rule, consistent with Fed.
R. Evid. 801(d)(1), SJC holds that any prior statement of
identification is admissible substantively); Commonwealth v.
Daye, 393 Mass. 55, 65-75 (1984) (permitting the probative use
of a prior inconsistent grand jury testimony at trial if the
statement is uncoerced, based on personal knowledge and the
declarant can be cross examined at trial); Commonwealth v.
Sineiro, 432 Mass. 735, 741-42 (2000) (allowing prior
testimony at a probable cause hearing to be relied on substantively
in limited circumstances similar to those enunciated in
Daye); Commonwealth v. Fort, 33 Mass. App. Ct.
181, 183 (1992); see generally Fed. R. Evid. 804(b)(1)
(authorizing the substantive admissibility of prior testimony if
certain criteria, unavailability and the opportunity to cross
examine when the testimony was taken, have been met.);
Commonwealth v. Leo, 379 Mass. 34, 41-42 (1979 (holding a
prior inconsistent statement that constitutes an admission by a
party opponent is admissible for all purposes).
25. This hypothetical is one example of when this
distinction is important. Another more common example would be a
typical domestic violence scenario. A defendant is accused of
assaulting his spouse. Initially, the alleged victim tells the
police the defendant did hit her. Then she tells a defense
investigator that nothing happened. Assuming for argument's sake
the alleged victim's statement to the police was both
non-testimonial under Crawford and the statement qualified
as an excited utterance, if she did not testify at trial, the
defendant would want to call the investigator to impeach her
statement to the police officer. If her inconsistent statement was
not objected to, the investigator's contrary statement could be
considered substantively, thus supplying the key to an acquittal or
perhaps a successful argument for a Required Finding of Not Guilty.
See generally Crawford v. Washington, 541 U.S. 36 (2004);
Commonwealth v. Gonsalves, 445 Mass. 1 (2005).; See
Costello, 411 Mass. at 378.
26. See Model Jury Instructions for Use in the
District Court, Instruction 3.700 (2009) ("the prior statement
is relevant only as to the witness's credibility,
and you may not take it as proof of any fact contained in it");
Model Jury Instructions for the Superior Court,
Instruction § 4.10.1 (2003) ("you may not consider the earlier
statement as evidence or proof of the truth of any fact contained
in the statement").
The concern is less about crafting a legally correct
instruction, which assumes the jury would appreciate the
distinction, and more about avoiding an instruction that would
explicitly undermine Polly's defense. Cf. Commonwealth v.
Martin, 19 Mass. App. Ct. 117,119 n. 3 (1984) (judge committed
error in failing to charge the jury as to the appropriate
evidentiary use of prior inconsistent statement; however, the error
27. See Sineiro, 432 Mass. at 741-42. This
example raises totem pole hearsay and confrontation issues as well.
However, Ally's initial statement to Mrs. Complaint would not
offend the 6th Amendment because Ally was available to testify.
Further, Ally's statement could also qualify as an excited
utterance and therefore, qualifying as an exception to hearsay
28. Commonwealth v. Mahar, 430 Mass. 643, 649-50
(2000); Commonwealth v. Sellon, 380 Mass. 220, 224 n. 6
(1980). Accord Fed. R. Evid. 806 ("the credibility of the
declarant may be attacked … by any evidence that which would be
admissible for those purposes if declarant had testified as a
29. Mahar, 430 Mass. at 650.
30. Commonwealth v. Martin, 417 Mass. 187, 197
31. Id. (emphasis added).
32. "A witness who actually made a statement contradictory
to trial testimony cannot escape impeachment by saying he does not
remember making the statement." Commonwealth v. Gil, 393
Mass. 204, 220 (1984) (citing Langan v.Pianowski, 307
Mass. 149, 152 (1940)). The loss of memory is functionally treated
as if the witness denied making the statement, and therefore is
inconsistent with the substance of the prior statement.
Polly also could try refreshing Ally's memory with the police
report that contained Tommy's statement. If this did not work,
Polly would have to impeach her extrinsically through Tommy. If
Polly anticipated that Ally was going to say "I don't remember,"
she could skip the confrontation and instead simply introduce the
prior statement through Tommy.
33. Sineiro, 432 Mass at 742-45.
34. Pianowski, 307 Mass. at 149 (holding prior
inconsistent statement was properly admitted both to impeach and
substantively as an admission); Sineiro, 432 Mass. at 745
(finding probable cause testimony admissible for all purposes, in
part because the witness's lack of memory was deemed false by the
35. If Polly had no prior knowledge of the statement, an
admission being attributed to Ian, she should also move to strike
the testimony, arguing the late disclosure of automatic discovery
warrants the sanction of preclusion. See Mass. R. Crim. P.
14(a)(1 )(A)(i), 14(c)(2).
36. Commonwealth v. West, 312 Mass. 438, 440
(1942); see also Commonwealth v. Clayton, 52 Mass. App.
Ct. 198, 207 (2001); Commonwealth v. Ortiz, 39 Mass. App.
Ct. 70, 72 (1995).
37. As with every case, Polly should undergo the strategic
calculus. In this instance, the omission is critical; however, with
a fact of lesser significance, the impeachment might not be worth
the candle. Effective impeachment by omission is an art form and,
when done properly, is very effective. When it is not, it is
fraught with peril. For tips on how to do this well I suggest Larry
S. Pozner & Roger J. Dodd, Cross-Examination: Science and
Techniques (Michie 2003) and anything written on the topic by
Professor James McElhaney.
38. See Ortiz, 39 Mass. App. Ct. at 72.
(overturning conviction because the trial judge declined to give an
appropriate jury instruction on the use of prior inconsistent
statements in assessing the credibility of an officer who had
omitted significant details from his police report).
39. Commonwealth v. Benoit, 32 Mass. App. Ct.
111, 116-17 (1992); see also Commonwealth v. McAfee, 430
Mass. 483, 489-90 (1990) (endorsing Benoit rule).
40. Commonwealth v. Melo, 67 Mass. App. Ct. 71,
77 (2006) (upholding decision allowing commonwealth to impeach its
own witness who had testified to other relevant facts);
Commonwealth v. Hailey, 62 Mass. App. Ct. 250, 252 (2004)
(distinguishing Benoit because the witness provided additional
probative evidence at trial).
41. This type of scenario raises a host of other potential
concerns, for example: does it necessarily matter if the party
calling the witness knew beforehand that its witness was going to
deny a critical fact? See Commonwealth v. Kicelemos, 66
Mass. App. Ct. 114 (2006) (inferring prior knowledge of witness'
intention to disavow an earlier statement is relevant to the
analysis). What if the inconsistent fact contained in the prior
statement is highly prejudicial and of limited probative value?
What if the prior inconsistent fact satisfied an element of the
offense? What if the prior inconsistent fact was an admission by a
defendant? Cf. Benoit, 32 Mass. App. Ct. at 117 (eliciting
a damaging admission attributed to the defendant as a prior
inconsistent statement was reversible error because the witness had
no other relevant testimony to offer).
42. Commonwealth v. Rosa, 412 Mass. 147, 156
(1992). However, a party is not subject to the same formalities if
it chooses to elicit evidence of its own witness' prior record,
Commonwealth v. Caldwell, 374 Mass. 308, 312 (1978), or in
the case of the commonwealth, an agreement for leniency.
Commonwealth v. Griffith, 404 Mass. 256, 265-66 (1989).
Cf. generally Fed. R. Evid. 607 ("the credibility of a
witness may be attacked by either party, including the party
calling the witness").
43. If Peter is allowed to impeach Danny, and Danny still
denied making the previous statement, Peter would have to complete
the impeachment through the detective. At that time, Polly would
want to request an appropriate limiting instruction.
44. Assume Tommy's statement was admitted by the judge
over objection because it was not being offered for the truth of
the matter asserted, but rather to show Ally's state of mind,
rebutting the defense of consent.
45. Mechanically, Peter probably would have to re-call
Detective Dooright in rebuttal to testify about the previous
46. Commonwealth v. Brookins, 416 Mass. 97, 102
(1993); see also Commonwealth v. Binienda, 20 Mass. App.
Ct. 756, 758-9 (1985) (overturning a conviction because a prior
consistent statement was improperly allowed in evidence).
47. Brookins, 416 Mass. at 102.
48. Commonwealth v.Gaudette, 56 Mass. App. Ct.
494, 499-501(2002); Commonwealth v. Healy, 27 Mass. App.
Ct. 30, 34-35 (1989); cf. Commonwealth v. Tennison, 440
Mass. 553, 562-64 (2003) (holding a statement that does not meet
the technical requirements for admission as a "prior" consistent
statement may, nonetheless, be admissible under the doctrine of
verbal completeness); A judge may also admit a prior consistent
statement on direct examination when a claim of recent contrivance
is inevitable on cross examination. See Commonwealth v.
Knight, 437 Mass. 487, 496-98 (2002).
49. Healey, 27 Mass. App. Ct. at 35(emphasis
added); accord Fed. R. Evid. 801(d)(1)(B). The exception
has also been characterized as applying when the other party is
suggesting that the inconsistent "statement was the product of some
peculiar or transient bias or pressure of some kind … "
Commonweal v. Horne, 26 Mass. App. Ct. 996, 998 (1988);
cf. Commonwealth v. Rodriquez, 454 Mass 215, 222 and n. 6
(2009) (deciding the substance of a witness' prior statement and
the reason the statement was made were properly admitted to
rehabilitate a witness even though the statement was made after any
motive to fabricate arose).
50. Trial judges have a wide range of discretion in
deciding whether a suggestion of recent contrivance exists. See
Brookins, 416 Mass. at 103.
51. This is similar to the argument that the Appeals Court
found persuasive in Binienda, Mass. App. Ct. at
52. Model Jury Instructions for Use in the District
Court, Instruction 3.700 (2009) (In assessing the permissible
use of a prior consistent statement that has been admitted into
evidence, "the prior statement is relevant only as to the witness's
credibility, and you may not take it as proof of any fact contained
in it."); accord Gaudette, 56 Mass. App. Ct. at 499.
Chris Dearborn is an assistant
clinical professor at Suffolk University Law School, where he runs
the Suffolk Defenders Clinic and teaches classes on trial practice
and the Massachusetts Constitution.