In Podcast Episode 236 (Duration 36:19) Paul Meyers of the Kane County Public Defender's Office does his best to finally set me straight on the intricacies and interplay between impeachment, substantive evidence, and prior inconsistent statements.
More than once on the Criminal and Premium Nuggets Podcasts, I have reported that “even experienced trial courts face serious uncertainties when applying section 115-10.1 of the Code.”
Well, apparently I'm not immune from falling into this evidentiary trap.
If you don't do anything else, at least download the cheat-sheet and other impeachment/prior inconsistent statement resources we put together to ensure you don't ever make another error on this topic.
This is the all new and improved mental mind map that must go in your trial notebook. Hit the “Add to My Library” button you see below.
Paul Meyers, the podcast guest in this discussion, presents a logical, easy to follow roadmap that helps us all understand exactly what impeachment is, how it relates to substantive evidence, and how they both intertwine with prior inconsistent statements.
Who's Paul Meyers?
Paul is an Assistant Kane County, Illinois Public Defender assigned to the general felony division.
Topics We Cover
Paul does a great job of…
- Presenting General Threshold Issues
- Laying Out a Roadmap or Cheat Sheet
- Explaining How a Brother's Motion Should Be Used
The interconnectedness of impeachment, substantive evidence, and prior inconsistent statements itself can occupy a small library. In this podcast, we focused on getting the basic concepts explained and understood.
This way, you could see for yourself, how the overall structure of the “correct” analysis fits together. Above all, the overarching goal was to understand the basics so you could walk away with an easy to understand and easy to follow cheat-sheet on this topic.
You'll have to be the judge on deciding if we succeeded with this mission.
Important Links & Cases Mentioned
- 725 ILCS 5/115-10.1
- Illinois Rule of Evidence 801(d)(1)(A)
- Illinois Rule of Evidence 607
- Illinois Rule of Evidence 613
- People v. Blakey, 2015 IL App (3d) 130719 (November 2015) (prior inconsistent statement in this DUI huffing case was admitted in error)
- People v. Evans, 2016 IL App (3d) 140120 (July) (courts still getting it wrong, prosecutor allowed to get away with a little too much)
- People v. Hallbeck, 227 Ill.App.3d 59 (2nd Dist. 1992) (seminal case on laying foundation for a prior inconsistent statement)
- People v. Cruz, 162 Ill. 2d 314, 359-60, 643 N.E.2d 636, 658 (1994) (affirmative damage required before party can impeach their own witness)
- People v. Brothers, 2015 IL App (4th) 130644 (September 2015) (acknowledge hearing explained)
- See Also Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing
- See Also Two Step Formula To Avoid Prior Inconsistent Statement Error
- See Also Better Read This If You Are An Illinois Trial Attorney
- See Also Illinois Criminal Pattern Jury Instruction 3.11 (pay attention to the committee notes)
More Highlights From The Podcast
► The simple fact is that as a group we are all still confusing impeachment, substantive evidence, and prior inconsistent statements. Paul jumps right into it and explains what's going on.
► If you agree that you should be scrutinizing your discovery and looking over the witness list in anticipation of who the wobbly witnesses may be then you'll want to listen to this podcast. If you are not thinking ahead before trial how you are going to react when witnesses start to flip then you better listen to this podcast.
► What is the “affirmative damage” rule? Do you know how or when to apply it?
► Listen in while Paul explains in normal language exactly what Rule 607 is trying to capture. Go to minute 3:42.
► See minute 4:01 for my detailed confession on what I got wrong and the truth about exactly how I was mistaken on this very issue that I myself have been hyping.
► Here is the better way to approach this problem. This procedure begins with asking whether or not a statement is even inconsistent (even this can get hairy). Then the fun really begins after that.
► Remember in law school how they talked about collateral and non collateral issues. That pops up again. Except this time it makes sense.
► Remember your law professor talking about “extrinsic evidence”? Yeah, that's a thing. It too has it's place, and we find it.
► In many ways, the core of this analysis boils down to quickly determining if you have a substantive prior inconsistent statement on your hands. Here's the quickest way to run through those steps.
► Sometimes it doesn't matter who's witness is on the stand. Other times it matters immensely. Get clear on exactly when a witness cannot be impeached at all.
► Why can't you impeach your own witness when his or her testimony is merely disappointing?
► How to deal with turncoat witnesses (hint: this is not just a witness who has flipped on you).
► Can you put into words and describe the crucial difference between substantive statements and just plain old vanilla impeachment? Go to minute 30:41 for a concise, understandable definition of these terms.
► Where does having a “good faith basis” fit into all this?
► Discover all the fun things you can do with an “acknowledgment hearing” after filing a Brother's motion. (Hint: some of this stuff totally helps the prosecution more than the defense.) Go to minute 27:04.
► How to create substantive evidence in a case that doesn't have any.
► The single most important thing you can do in a domestic case if you have a wobbly witness.
► When to NEVER file a Brother's Motion. How to conduct a Brother's hearing. PLUS the gist and proper procedure to follow during a Brother's hearing. Go to minute 18:02.
► The recanting-recanter can really throw a kink in your case. Go to minute 26:10 to learn what to do when this happens to you.
►Anytime an attorney is analyzing an impeachment scenario there are some threshold issues that must first be considered…discover these threshold issues.
Let me cut to the chase.
By giving us about 30 minutes and by downloading the materials on this page you'll have an easy to follow road map, a checklist, and system that will help ensure you never make an impeachment, substantive evidence, or prior inconsistent statement error again.
Download your roadmap right now.
Before you leave grab your copies and add them to your own legal library.
These resources function as a starting point to get the big picture straight in your head.
Almost certainly, additional research will be necessary depending on the exact nature of the issues you are able to spot in your cases.