Inconsistent statements and conduct - Next Generation Bar Exam

1. Under Harris v. New York, for what purpose may a defendant's statement obtained in violation of Miranda be used?

   To impeach the defendant's inconsistent trial testimony. The statement must be voluntary and is inadmissible in the case-in-chief.

2. What is the status of extrinsic evidence of a prior inconsistent statement on a collateral matter?

   It is inadmissible, because a matter relevant only to contradicting the witness will not support extrinsic proof. The examiner must accept the witness's answer on collateral matters.

3. What is the evidentiary use of a prior inconsistent statement not made under oath at a proceeding?

   It may be used only to impeach, not as substantive evidence. The jury may be given a limiting instruction on request.

4. Under FRE 613(a), what must the examiner do when examining a witness about a prior statement?

   Show or disclose its contents to adverse counsel on request. The examiner need not show the statement to the witness first.

5. How do courts generally treat a witness's claimed lack of memory when asked about a prior statement?

   As potentially inconsistent with the prior statement if the court finds the lack of memory feigned. The trial court has discretion to find inconsistency in evasive answers.

6. What is the status of a witness's prior conduct inconsistent with trial testimony?

   It may be used to impeach, like an inconsistent statement. For example, failing to mention a key fact when it would have been natural to do so may be inconsistent.

7. Under FRE 801(d)(1)(A), when is a testifying witness's prior inconsistent statement admissible for its truth?

   When it was made under penalty of perjury at a trial, hearing, other proceeding, or deposition. The declarant must also testify and be subject to cross-examination about it.

8. Under FRE 613(b), when is extrinsic evidence of a witness's prior inconsistent statement admissible?

   When the witness is given an opportunity to explain or deny it and the adverse party may examine the witness about it. The opportunity need not come before the extrinsic evidence, and the requirement does not apply to opposing-party statements.

9. Under Doyle v. Ohio, what may the prosecution not use to impeach a defendant?

   The defendant's silence after receiving Miranda warnings. Using post-warning silence violates due process because the warnings imply silence will not be penalized.

10. A witness testified before a grand jury that the light was red, but at trial says it was green. For what purpose may the grand jury testimony be used?

    Both to impeach and as substantive evidence that the light was red. Grand jury testimony is given under penalty of perjury at a proceeding.

11. A witness told a friend over dinner that the defendant fired first, but at trial testifies the victim fired first. What use may the jury make of the dinner statement?

    Only to assess the witness's credibility. The statement was not made under oath at a proceeding, so FRE 801(d)(1)(A) does not apply.

12. Under Jenkins v. Anderson, what is the status of a defendant's pre-arrest silence for impeachment?

    It may be used to impeach a testifying defendant. No governmental action induced the silence.

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