Collateral Damage: 8th Circuit Finds District Court Properly Precluded Extrinsic Evidence of Prior Inconsistent Statement

It is well established that a witness who testifies at trial can be impeached if he made a prior inconsistent statement before trial; moreover, Federal Rule of Evidence 613(b) indicates that the attorney impeaching a witness through a prior inconsistent statement can prove the existence of that prior statement through extrinsic evidence as long as "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." As the recent opinion of the Eighth Circuit in United States v. Bordeaux, 2009 WL 1919390 (8th Cir. 2009), makes clear, however, such extrinsic evidence is inadmissible when the witness is being impeaching on a "collateral" matter.

In Bordeaux, Adam Bordeaux was convicted of one count of assault with a dangerous weapon, three counts of assault with a dangerous weapon against a child who had not attained the age of 18 years, and one count of discharging a firearm during a crime of violence. The incident that gave rise to the trial against Bordeaux involved Bordeaux shooting at a vehicle being driven by Tristan Saupitty, with passengers R.F., W.S., L.R.B., and Michelle Boyd. Bordeaux claimed that he was acting in self-defense because he was standing outside his car and Saupitty drove in a threatening manner toward his car, which contained his wife and baby.

At trial, however, R.F. testified that Saupitty did not swerve toward Bordeaux's car. R.F. also testified on cross-examination that he neither had a fake gun or a B.B. gun and that he did not point any such gun at Bordeaux on the night of the shooting. Defense counsel then asked R.F. whether he had made a prior inconsistent statement to someone before trial. Thereafter, defense counsel sought to call a witness to testify that R.F. had told him that he had such a gun and that he pointed it at Bordeaux on the night of the shooting.

And, if part of Bordeaux's self defense claim was that he shot at Saupitty's car because he saw R.F. pointing a gun at him, the trial judge should have allowed this testimony. The problem for Bordeaux, however, was that his "defense theory was not that he shot at the vehicle and its occupants because of the threat posed by R.F. In fact, Bordeaux did not testify that he saw R.F. with a gun on the night in question." The trial judge thus found that this extrinsic evidence was inadmissible because the issue of "[w]hether R.F. carried a gun, unseen by Bordeaux, 'had no substantive connection whatsoever' to Bordeaux's trial."  

And on Bordeaux's subsequent appeal, the Eighth Circuit correctly agreed, concluding "that R.F.'s prior inconsistent statement was on a collateral matter and not admissible under Rule 613(b)." In other words, extrinsic evidence can be used to prove a prior inconsistent statement that undermines a witness' credibility with regard to testimony that relates to an element of claim or defense. But when a prior inconsistent statement merely undermines a witness' credibility with regard to testimony that is unrelated to a claim or defense, extrinsic evidence is not permitted.

-CM