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48. Should the court admit the investigator's testimony about the witness's out-of-court statement?
Later in the trial, the defendant's attorney calls the investigator, who offers to testify that the witness told him, «I never saw [the plaintiff] fall.» The plaintiff objects to admission of the investigator's testimony about the witness's out-of-court statement.
On cross-examination, the defendant's attorney asks: «Isn't it true that you told an investigator one week after the accident that you did not see [the plaintiff] fall?» The witness denies making the statement.
A plaintiff sued a defendant for injuries she allegedly received when she slipped and fell while shopping in the defendant's grocery store. At trial, the plaintiff calls as a witness another shopper who testifies that she saw the plaintiff slip and fall on an oily substance on the floor of the store.
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A is incorrect. The witness's statement to the investigator may be admitted for the non-hearsay purpose of impeaching the witness with a prior inconsistent statement.
B is incorrect. If an opposing party gives a witness the opportunity to explain or deny a prior inconsistent statement they may then offer extrinsic evidence of the statement. Fed. R. Evid. 613(b). Here, the witness denies having made the inconsistent statement, so the defendant's attorney may offer extrinsic evidence of the statement via the investigator's testimony.
C is incorrect. If offered for its truth, to prove that the plaintiff did not fall, the witness's out-of-court statement to the investigator qualifies as hearsay for which there is no applicable exception. Therefore, the witness's statement to the investigator cannot be admitted to prove that the plaintiff did not fall. It may be used, however, to impeach the witness.