Evidence-Wellborn SU2006 Outline

Judge refused the proffer of testimony considering it

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Unformatted text preview: will be allowed). Prior inconsistent silence or omission of an accused-witness: Impeachment of an accused by silence or omission SUBSEQUENT to arrest and Miranda warnings is impermissible. More on silence in the case: See footnote 1. A prior omission will constitute an inconsistency only where it was made under circumstances rendering it incumbent upon the witness to, or be likely to, state such a fact. The rationale for allowing impeachment in these circumstances is that "a failure to assert a fact, when it would have been natural to asset it, amounts in effect to assertion of the nonexistence of the fact." o It would seem apparent, based on the rational for considering a prior omission a prior inconsistent statement, that an omission which qualifies as a prior inconsistent statement will vary materially from the latter trial testimony, since on the first occasion the person is in effect saying that the fact does not exist, while on the second occasion he is saying that it does exist. Bot...
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