Similar provisions are found in California Evidence Code §770 and New Jersey Evidence Rule 22(b). In order to allow for such eventualities as the witness becoming unavailable by the time the statement is discovered, a measure of discretion is conferred upon the judge. See Comment to California Evidence Code §770. Under this procedure, several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement. The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence. See Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. The familiar foundation requirement that an impeaching statement first be shown to the witness before it can be proved by extrinsic evidence is preserved but with some modifications. Nor does it defeat the application of Rule 26(b)(3) of the Rules of Civil Procedure, as revised, entitling a person on request to a copy of his own statement, though the operation of the latter may be suspended temporarily. The rule does not defeat the application of Rule 1002 relating to production of the original when the contents of a writing are sought to be proved. The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary. Both oral and written statements are included. Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. The rule abolishes this useless impediment, to cross-examination. Abolished by statute in the country of its origin, the requirement nevertheless gained currency in the United States. 976 (1820), laid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness. Notes of Advisory Committee on Proposed Rules This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2). Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. (b) Extrinsic Evidence of a Prior Inconsistent Statement. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. (a) Showing or Disclosing the Statement During Examination.
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