Miss. R. Evid. 613

As amended through October 31, 2024

Rule 613 - Witness's Prior Statement

(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).

Miss. R. Evid. 613

Restyled eff. 7/1/2016.

Advisory Committee Note

The language of Rule 613 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Subsection (a) abolishes the requirement that a cross-examiner, prior to questioning the witness about a prior statement in writing, must first show this writing to the witness. This requirement was developed in The Queen's Case, 2 Br. & B. 284, 129 Eng.Rep. 976 (1820). Although it was abolished in Britain and later in our federal courts, the rule lingered on in Mississippi.

This rule explicitly applies to both written and oral statements.

The provision allowing disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.

The rule does not defeat the application of Rule 1002 relating to the production of the original when the contents of a writing are sought to be proved. Nor does it defeat the application of M.R.C.P. 26(b)(3), entitling a person on request to a copy of his own statement, though the operation of the latter may be suspended temporarily.

Subsection (b) preserves the foundation requirement in The Queen's Case with some modifications when impeachment is by extrinsic evidence. The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine the statement, with no specification of any particular time or sequence. Under this procedure, several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement.

In order to allow for such eventualities as the witness becoming unavailable by the time the statement is discovered, a measure of discretion is conferred upon the judge.

The rule does not apply to impeachment by evidence of prior inconsistent conduct by virtue of the principles of expression unius. The use of inconsistent statements to impeach a hearsay declaration is treated in Rule 806.

["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.]

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