Prior Inconsistent Statements of Non-Accused Witness (Credibility)

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

7.10 Prior Inconsistent Statements of Non-Accused Witness (Credibility)

(Last revised March 2011)

[1] You have just heard (NOW)’s evidence regarding a prior statement. Common sense tells you that if a witness says one thing in the witness box, but has said something quite different on an earlier occasion, this may reduce the value of his or her evidence.

[2] You will have to decide whether (NOW), in fact, gave an earlier and different version from his/her testimony of the same events.

[3] If you do not find that s/he gave an earlier and different version of events, you may not use the alleged statement in assessing (NOW)’s credibility.

[4] If you find, after you have heard all the evidence, that (NOW) gave an earlier and different version of events, consider whether the differences are significant. You should consider any explanation the witness gives for the differences. You should also consider the fact, nature and extent of any differences when you decide whether to rely on (NOW)’s testimony.

[5] You must not use the earlier statement as evidence of what actually happened, unless you conclude that (NOW) accepted it as true while in the witness box.[37]

[6] Even then, as with any evidence, you will decide whether or how much to rely on it.

[37] This instruction is only appropriate where the prior inconsistent statement is not admissible for the truth of its contents under the principled approach to hearsay or some other exception to the hearsay rule. See Mid-Trial 7.12.