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Prior Inconsistent Statement — Foundational Requirement, §§ 906.11(1), 906.13(2)(a)2

State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub

Issue: Whether, as a foundational requirement for introducing a witness’s prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.

Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn’t been excused from testifying:

¶13. Thus, the trial court was clearly wrong in ruling that Smith had not established a proper foundation in order to introduce the alleged inconsistent statements under Wis. Stat. § 906.13(2)(a)2. A prior inconsistent statement is admissible under Wis. Stat. § 906.13(2) without first confronting the witness with that statement. Under § 906.13(2)(a)2 and 3, extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case, or if the interest of justice otherwise requires its admission. See Ruiz v. State, 75 Wis. 2d 230, 232-33, 249 N.W.2d 277 (1977). In the instant case, because Smith intended to introduce extrinsic evidence of alleged prior inconsistent statements of the victim – inconsistent with testimony that the victim had previously given – who was under subpoena, and, therefore, not excused from giving further testimony in the action, we conclude that such evidence is admissible pursuant to § 906.13(2)(a)2.

Nor does the trial court’s broad discretion to control presentation of evidence, § 906.11(1) allow the court to override the specific mandate of § 906.13(2)(a)2. ¶14. (The court suggests, however, somewhat confusingly, that a trial court may use § 904.03 as a basis for exclusion in this context. ¶16. The court then goes on to find the error harmless — not because of § 904.03, but because the discrepancies embodied by the prior inconsistent statements were minor.

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