Prior Inconsistent Statement - What to Do if Someone is Lying 1

Prior Inconsistent Statement -

What to Do if Someone is Lying

When People Dont Tell the Truth - Establishing Prior Inconsistent

Statement
WN Legal assists several clients over a broad range of criminal law matters. We understand that it
can be complicated to comprehend the procedure in criminal law trials. The purpose of this article is
to assist the public in understanding one of the trial tactics used by legal counsels, how to prove that
a witness is lying.

What is a Prior Inconsistent Statement?

If a witness is inconsistent with their statement during cross-examination, proof can be produced to
this effect in court. Establishing a prior inconsistent statement is one of the best methods to catch
out parties that are lying or have previously lied.

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Why Do We Need to Prove a Prior Inconsistent Statement?

If applied correctly, proving a prior inconsistent statement will not only bolster your legal argument,
it also has potential to undermine the credibility of a witness statement. Section 21 of the Evidence
Act WA 1906 outlines this rule. The presiding magistrate, or judge, will take judicial notice when the
correct procedure has been utilised to prove a lie.

What is a Statement?

A witness statement is a written document, stating the evidence given by the witness in court, and it
is signed to confirm that the statement given is true. A statement could contain content regarding
what the witness saw, heard or felt.

What is Cross-Examination?

Cross-examination is where a lawyer questions a witness brought in by any party to a proceeding.

The general purpose of a cross examination is to either bolster a legal argument, and/or to damage a
witnesses credibility.

The B rowne v Dunn (1893) 6 R 67 HL case holds high importance in deciding the rules of
cross-examination. Where a party intends to lead any evidence that will contradict the evidence
their opponents witness will give or will require an explanation from that witness, that
contradiction must be put to the witness in cross-examination in order to give them a fair
opportunity to defend themselves.

During cross-examination, opposing counsels are supposed to ask leading questions. Therefore,
counsel may put forward incriminating questions to a witness to strengthen their case and
potentially impeach a witness credibility.

It is important to note that there may be limitations to cross-examination. The Courts may disallow
certain leading questions to be asked.

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How to Prove a Prior Inconsistent Statement

1. Ask whether they have made certain admissions in the past (refer to the specific document);
2. Point out to them, or ask, what their current admissions made are; and
3. If the witness does not admit to a prior statement made, then produce the prior statement to
the same witness and question them about the inconsistency.

While this method is very useful in potentially undermining a witness statement, proving prior
inconsistent statement, like any other cross examination techniques, may backfire if not done
properly. There are a variety of other trial tactics that should be taken into consideration when
cross-examining a witness.

Self-represented litigants should exercise caution if they intend to effect cross examination questions
themselves. A bad cross examination may bolster the oppositions case!

Discrediting a Witness Statement

To accurately and meticulously discredit a witnesss statement, there are some rules that are
important to consider:

1. Before cross-examination, ensure that a strategic plan has been drafted outlining the leading
questions to ask and anticipating potential answers in response.
2. Keep cross examination short and to the point.
3. Most importantly, ask questions that you already know the answer to.

A well-structured cross examination is vital in proving a prior inconsistent statement.

WN Legal are some of the top criminal lawyers in Perth.

Contact us today to speak to our team of professionals
about your case.

This article is intended for WN Legals audience as a snippet of what we do when we deal with your
matter. This article does not constitute formal advice to the recipient and should not be acted upon
without prior consultation with WN Legal.

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