27-613. Rule 613. Prior statements of witnesses; examining witness concerning prior statement; extrinsic evidence of prior inconsistent statement by witness.

(1) In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown or its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

(2) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in subdivision (4)(b) of section 27-801.

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Annotations

This statute permits the introduction of evidence concerning prior inconsistent statements by a witness, subject to the limitation that the witness being impeached must be given an opportunity to explain or deny the prior inconsistent statement, and the opposite party must have an opportunity to interrogate the witness about the prior inconsistent statement. Further, the statement sought to be impeached cannot be about a collateral or immaterial matter. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).

The foundational requirement of this section, that a witness to be impeached be given an opportunity to explain or deny an apparent inconsistent statement, does not apply to admissions or statements offered against a party to the action, if the admissions or statements were made by that party. Howard v. State Farm Mut. Auto. Ins. Co., 242 Neb. 624, 496 N.W.2d 862 (1993); Hyde v. Cleveland, 203 Neb. 420, 279 N.W.2d 105 (1979).

Trial court's initial error in not allowing the letter's author, which letter was introduced to impeach the author's trial testimony, to explain the letter's contents was corrected when counsel, through persistent questioning, was able to elicit explanatory testimony from the author. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991).

The victim is not a "party" to a criminal case for the purposes of impeachment by a prior inconsistent statement. State v. Antillon, 229 Neb. 348, 426 N.W.2d 533 (1988).

If the witness being impeached admits to the prior inconsistent statement, then he has been impeached and further extrinsic evidence is neither necessary nor generally allowed. State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985).

While proof of contradictory statements of a witness may be received in evidence for the purpose of aiding the jury in estimating the credibility of the witness, a party is not permitted to get before the jury, under the guise of impeachment, an ex parte statement of a witness by calling him to the stand when there is good reason to believe he will decline to testify as desired, and when in fact he only so declines. A mere refusal to testify or testimony negative in nature indicating a lack of testimonial information does not present grounds for impeaching the witness that affirmative testimony in favor of the opposite party gives for inquiry concerning prior statements contradictory of the testimony under oath at trial. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).

Difference between this section and prior rule explained. State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980).

The foundational requirement of this section, that a witness to be impeached be given an opportunity to explain or deny an apparently inconsistent statement, may be met either before or after the introduction of the impeaching evidence. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979).

The requirement in subsection (2) of this section that a witness sought to be impeached by an alleged prior inconsistent statement must be afforded an opportunity to explain or deny the alleged prior inconsistent statement may be met either before or after the introduction of the extrinsic impeaching evidence. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).