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Rules of Evidence Table of Contents

RULES OF EVIDENCE

ARTICLE VI. WITNESSES

Rule 613. Witness's Prior Statements

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

(c) Extrinsic Evidence of a Prior Consistent Statement for Rehabilitation. Except as provided in Rule 801(d)(1)(B) or (C), evidence of a prior consistent statement may be admitted only for rehabilitation:

(1) after the witness’s credibility has been attacked through the use of a prior inconsistent statement; and

(2) where the probative value of the prior consistent statement outweighs its prejudicial effect.

If a prior consistent statement is admitted for rehabilitation the court shall give a limiting instruction that the statement is not substantive evidence.

2016 NHRE Update Committee Note

The 2016 amendments made stylistic and substantive changes.

The 2016 amendments made stylistic changes to subsections (a) and (b). Subsections (a) and (b) mirror Federal Rule of Evidence 613 (a) and (b). The 2016 amendments also added subsection (c), codifying the New Hampshire common law rule regarding the use of prior consistent statements for the purpose of rehabilitation.

When a witness has been impeached by the use of prior inconsistent statements, New Hampshire common law “allows the admission of prior consistent statements for the purpose of rehabilitation . . . . The prior consistent statements, however, may not be used substantively, and a defendant is entitled to a limiting instruction to prevent unfair prejudice. Even when a witness’s credibility has been attacked through the use of prior inconsistent statements, however, the common law rule allowing admission of rehabilitative testimony should be used with caution.” State v. White, 159 N.H. 76, 79 (2009) (internal citations and quotation omitted).

 

 

 

 

 

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