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Appeal court reversed municipal court judgement and ordered new trial.

During the new trial, can I use the officer's testimony from the first trial?

The officer's first trial testimony contradicts video from discovery request videos received after the first trial. Is that enough to show the officer is untruthful?

If the officer is shown untruthful, does that invalidate all of the officer's testimony?

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During the new trial, can I use the officer's testimony from the first trial?

That is procedural question and the answer depends on what the jurisdiction allows.

The officer's first trial testimony contradicts video from discovery request videos received after the first trial. Is that enough to show the officer is untruthful?

Untruthful? No. Has recollections that differ in some ways from a video record? Yes.

No one remembers events exactly as they occurred. Everyone misrepresents what was said, the sequence of events and other details. This doesn't make the officer untruthful, just human.

If the officer is shown untruthful, does that invalidate all of the officer's testimony?

It is for the finder of fact (the jury or judge as applicable) to decide what weight, if any, to give evidence, including the officer's testimony. They may or may not form the opinion that the testimony is untrustworthy and discount it - that's up to them.

If the come to the opinion that that the difference between video and testimony is a product of malfeasance rather than error, they are more likely to discount the testimony in total.

  • Instead of untruthful, what about unreliable recollection? Does unreliable recollections show that the officer is not highly credible? – user27675 Jul 24 '17 at 22:09
  • I can't say: I am neither the jury nor the judge. They will consider all of the evidence in context. – Dale M Jul 24 '17 at 22:54
  • Unreliable recollection is not a thing. And even if his recollection was unreliable, he is entitled to jog his memory with a writing, recording, or other notation or device that would help him remember correctly. – A.fm. Jul 24 '17 at 23:00
  • While DaleM rightly hedges a bit, if the witness testified in a manner contrary to their the video deposition or his prior testimony (which must happen since they contradict each other), that almost certainly can be offered to impeach his testimony the second time around. – ohwilleke Jul 25 '17 at 0:10
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Agree w/r/t jurisdiction, but assuming your jurisdiction is in line with the Federal Rules of Evidence, then almost certainly the prior inconsistent statement may be admissible. The way it works is if he is stating something in the current case that is inconsistent with a prior statement he made.

Also, “[a] prior inconsistent statement is admissible to raise the suggestion that if a witness makes inconsistent statements, then his entire testimony may not be credible, such an inference does not depend on whether either the prior statement or the subsequent in-court statement is true.” See U.S. v. Bao, 189 F.3d 860, 866 (9th Cir. 1999).

Now, the above is when the statement is offered as evidence to attack the credibility of the that witness and such prior inconsistent statements may be offered as evidence at any time. This is: you said x then, you say y now, therefore, we should not trust you, period.

However, if you want to admit a prior inconsistent statement in order to establish the truth of the matter asserted, (here we are talking about an exclusion to the hearsay rule), the prior inconsistent statement may be brought in if it is inconsistent with the witness’ current testimony and it was given under oath with the penalty of perjury in a previous proceeding (which can be another trial, a deposition, or other hearing where the witness was sworn in to tell the truth), and the witness must be present in the current case and available to be cross examined on that issue.

A brief example. Car accident, Plaintiff v. Defendant. Witness 1 testifies that D was going “at least 65mph through the intersection.” D brings Witness 2 who testifies that W1 said the day after the accident that “D was driving slowly.” This is offered to attack the credibility of W1 and it is not to be offered to show how fast D was or was not going.

Same hypothetical, but here, D offers that same evidence (the prior inconsistent statement of W1) to prove that he was actually going slowly. If W1 had simply been speaking to some people the day after the accident, it would be inadmissible hearsay. However, if W1 for whatever reason had said “D was going slowly” and W1 had been under oath at the time, D could use that statement as proof of the matter asserted (that he was going slow).

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