David, J.
….
At the time of Griffith’s trial, Indiana Rule of Evidence 613(b) provided in pertinent part that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless 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.” Ind. Evid. Rule 613(b) (2012).1 … Considering that Indiana Evidence Rule 613(b) uses the same language as Federal Evidence Rule 613(b), we embrace the interpretation of Rule 613(b) as utilized by multiple federal jurisdictions. Under that interpretation, Rule 613(b) does not compel a specific sequence for the admission of extrinsic evidence of a prior inconsistent statement. [Footnote omitted.] Rather, it is within the trial court’s discretion to admit extrinsic evidence to impeach a prior inconsistent statement before or after the witness is given the opportunity to explain or deny the alleged statement. However, the preferred method is still to confront the witness with the alleged statement before seeking to admit extrinsic evidence impeaching that statement. Regardless of the sequence in which extrinsic evidence is admitted, the witness must be given the opportunity to admit or deny the prior statement. Here, we conclude that the trial court properly exercised its discretion in excluding Griffith’s proposed extrinsic evidence and affirm Griffith’s conviction and sentence.
[Footnote 1:] Indiana Rule of Evidence 613(b) now provides that “[e]xtrinsic 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.” Ind. Evid. Rule 613(b) (effective Jan. 1, 2014). The slight difference in language does not impact this Court’s analysis of the application of Rule 613(b).
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… We do not overrule the conclusion reached in Hilton [v. State, 648 N.E.2d 361 (Ind. 1995)] affirming the trial court’s exclusion of extrinsic evidence. However, we do seek to clarify that Hilton does not stand for the proposition that extrinsic evidence may never be admitted under Rule 613(b) before the witness is given an opportunity to explain or deny a prior inconsistent statement. Rather, we are inclined to follow the federal interpretation of Federal Evidence Rule 613(b), which affords greater flexibility to trial courts in the admission of evidence. This Court similarly prefers an interpretation which would provide Indiana trial courts with flexibility in admitting extrinsic evidence.
In U.S. v. Della Rose, the Seventh Circuit acknowledged that “Rule 613(b) conditions the admissibility of a prior inconsistent statement on the witness being afforded the opportunity to explain or deny the statement.” 403 F.3d 891, 903 (7th Cir. 2005). However, the opportunity to explain or deny the prior statement does not mean that the witness “must be given that opportunity before extrinsic evidence of the statement is admitted.” Id. In Della Rose, the court clearly set out that the failure to cross-examine a witness about a prior statement did not prevent the defense from eliciting testimony about that prior statement from its own impeaching witness. Id. (string citation omitted).
Other federal circuits have also interpreted Rule 613(b) in this way. [String citation omitted.]
….
Consistent with the Federal approach and with our own Court of Appeals, we hold that under Indiana Evidence Rule 613(b), the requirement that a witness be given an opportunity to explain or deny a prior inconsistent statement may be afforded to that witness at any point during the proceedings. However, Rule 613(b) “does not supplant the traditional method of confronting a witness with his inconsistent statement prior to its introduction into evidence as the preferred method of proceeding.” Wammock [v. Celotex Corp.], 793 F.2d [1518,] 1522 [(11th Cir. 1986)]. This approach avoids the risk that a witness may become unavailable as the trial proceeds and consequently could not be recalled to explain or deny the prior statement. In addition, we recognize that the preferred approach may make it easier for a jury to understand the context of the intended impeachment.
Despite this preferred method, trial courts are still given broad discretion in excluding or admitting extrinsic evidence under Rule 613(b). We encourage trial courts to consider a variety of relevant factors in making the determination to admit or exclude extrinsic evidence, such as the availability of the witness, the potential prejudice that may arise from recalling a witness only for impeachment purposes, the significance afforded to the credibility of the witness who is being impeached, and any other factors that are relevant to the interests of justice.5
[Footnote 5:] To the extent that a trial court does exercise its discretion to admit extrinsic evidence outside of the preferred sequence, we advise that trial courts remain mindful that if the witness is later unavailable to explain or deny that prior statement, the court must be prepared to provide a remedy. A suitable remedy may be granting a motion to strike the testimony of the impeaching witness and giving an appropriate instruction to the jury. On the other hand, if the opposing party simply fails to recall the witness without any showing of unavailability, such a remedy may not be warranted. Likewise, when the opposing party fails to show the witness’s unavailability, that party should also not get the windfall of being able to appeal on the grounds that extrinsic evidence was admitted without the witness being given an opportunity to explain or deny that statement. We remain confident that our trial court judges, along with the assistance of engaged trial counsel, are fully capable of navigating the nuances that each case may present.
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Although the trial court properly exercised its discretion in excluding this evidence, we also seek to emphasize that it would not have been err[or] to allow Darren to be recalled as a witness and to be questioned about the alleged prior inconsistent statement. See Della Rose, 403 F.3d at 903 (explaining that even if the witness was not asked about the prior inconsistent statement on cross-examination, the prosecution could still have recalled the witness to the stand and asked about the statement at that time). We acknowledge that Appleton [v. State, 740 N.E.2d 122 (Ind. 2001)] and Griffin [v. State, 754 N.E.2d 899 (Ind. 2001)] provide that “a party is forbidden from placing a witness on the stand when the party’s sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment.” 740 N.E.2d at 125; See also Griffin, 754 N.E.2d at 904. However, in this context, the witness would have been recalled for the purpose of allowing that witness to explain or deny a prior inconsistent statement. Thus, this rule would not be controlling over a trial court’s discretion to allow a witness to be recalled.
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Conclusion
We hold that under Indiana Evidence Rule 613(b), extrinsic evidence of a prior inconsistent statement may be admitted before or after a witness is given the opportunity to explain or deny the alleged statement. While the preferred method remains that the witness be confronted with the statement prior to the admission of extrinsic evidence, the trial court has wide discretion in making this evidentiary ruling. Several factors may properly sway the trial court to admit or deny extrinsic evidence given the circumstances of the case. To the extent that our prior holding in Hilton could be read to require trial courts to admit extrinsic evidence under Rule 613(b) in a specific sequence, we clarify that Hilton upheld the discretion of the trial court under Rule 613(b) without setting out a requirement for the sequence in which extrinsic evidence must be admitted. In accordance with that interpretation, the trial court did not err in excluding the proposed extrinsic evidence of a prior inconsistent statement offered by Griffith. Griffith’s conviction and sentence are affirmed.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
….
At the time of Griffith’s trial, Indiana Rule of Evidence 613(b) provided in pertinent part that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless 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.” Ind. Evid. Rule 613(b) (2012).1 … Considering that Indiana Evidence Rule 613(b) uses the same language as Federal Evidence Rule 613(b), we embrace the interpretation of Rule 613(b) as utilized by multiple federal jurisdictions. Under that interpretation, Rule 613(b) does not compel a specific sequence for the admission of extrinsic evidence of a prior inconsistent statement. [Footnote omitted.] Rather, it is within the trial court’s discretion to admit extrinsic evidence to impeach a prior inconsistent statement before or after the witness is given the opportunity to explain or deny the alleged statement. However, the preferred method is still to confront the witness with the alleged statement before seeking to admit extrinsic evidence impeaching that statement. Regardless of the sequence in which extrinsic evidence is admitted, the witness must be given the opportunity to admit or deny the prior statement. Here, we conclude that the trial court properly exercised its discretion in excluding Griffith’s proposed extrinsic evidence and affirm Griffith’s conviction and sentence.
[Footnote 1:] Indiana Rule of Evidence 613(b) now provides that “[e]xtrinsic 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.” Ind. Evid. Rule 613(b) (effective Jan. 1, 2014). The slight difference in language does not impact this Court’s analysis of the application of Rule 613(b).
….
… We do not overrule the conclusion reached in Hilton [v. State, 648 N.E.2d 361 (Ind. 1995)] affirming the trial court’s exclusion of extrinsic evidence. However, we do seek to clarify that Hilton does not stand for the proposition that extrinsic evidence may never be admitted under Rule 613(b) before the witness is given an opportunity to explain or deny a prior inconsistent statement. Rather, we are inclined to follow the federal interpretation of Federal Evidence Rule 613(b), which affords greater flexibility to trial courts in the admission of evidence. This Court similarly prefers an interpretation which would provide Indiana trial courts with flexibility in admitting extrinsic evidence.
In U.S. v. Della Rose, the Seventh Circuit acknowledged that “Rule 613(b) conditions the admissibility of a prior inconsistent statement on the witness being afforded the opportunity to explain or deny the statement.” 403 F.3d 891, 903 (7th Cir. 2005). However, the opportunity to explain or deny the prior statement does not mean that the witness “must be given that opportunity before extrinsic evidence of the statement is admitted.” Id. In Della Rose, the court clearly set out that the failure to cross-examine a witness about a prior statement did not prevent the defense from eliciting testimony about that prior statement from its own impeaching witness. Id. (string citation omitted).
Other federal circuits have also interpreted Rule 613(b) in this way. [String citation omitted.]
….
Consistent with the Federal approach and with our own Court of Appeals, we hold that under Indiana Evidence Rule 613(b), the requirement that a witness be given an opportunity to explain or deny a prior inconsistent statement may be afforded to that witness at any point during the proceedings. However, Rule 613(b) “does not supplant the traditional method of confronting a witness with his inconsistent statement prior to its introduction into evidence as the preferred method of proceeding.” Wammock [v. Celotex Corp.], 793 F.2d [1518,] 1522 [(11th Cir. 1986)]. This approach avoids the risk that a witness may become unavailable as the trial proceeds and consequently could not be recalled to explain or deny the prior statement. In addition, we recognize that the preferred approach may make it easier for a jury to understand the context of the intended impeachment.
Despite this preferred method, trial courts are still given broad discretion in excluding or admitting extrinsic evidence under Rule 613(b). We encourage trial courts to consider a variety of relevant factors in making the determination to admit or exclude extrinsic evidence, such as the availability of the witness, the potential prejudice that may arise from recalling a witness only for impeachment purposes, the significance afforded to the credibility of the witness who is being impeached, and any other factors that are relevant to the interests of justice.5
[Footnote 5:] To the extent that a trial court does exercise its discretion to admit extrinsic evidence outside of the preferred sequence, we advise that trial courts remain mindful that if the witness is later unavailable to explain or deny that prior statement, the court must be prepared to provide a remedy. A suitable remedy may be granting a motion to strike the testimony of the impeaching witness and giving an appropriate instruction to the jury. On the other hand, if the opposing party simply fails to recall the witness without any showing of unavailability, such a remedy may not be warranted. Likewise, when the opposing party fails to show the witness’s unavailability, that party should also not get the windfall of being able to appeal on the grounds that extrinsic evidence was admitted without the witness being given an opportunity to explain or deny that statement. We remain confident that our trial court judges, along with the assistance of engaged trial counsel, are fully capable of navigating the nuances that each case may present.
….
Although the trial court properly exercised its discretion in excluding this evidence, we also seek to emphasize that it would not have been err[or] to allow Darren to be recalled as a witness and to be questioned about the alleged prior inconsistent statement. See Della Rose, 403 F.3d at 903 (explaining that even if the witness was not asked about the prior inconsistent statement on cross-examination, the prosecution could still have recalled the witness to the stand and asked about the statement at that time). We acknowledge that Appleton [v. State, 740 N.E.2d 122 (Ind. 2001)] and Griffin [v. State, 754 N.E.2d 899 (Ind. 2001)] provide that “a party is forbidden from placing a witness on the stand when the party’s sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment.” 740 N.E.2d at 125; See also Griffin, 754 N.E.2d at 904. However, in this context, the witness would have been recalled for the purpose of allowing that witness to explain or deny a prior inconsistent statement. Thus, this rule would not be controlling over a trial court’s discretion to allow a witness to be recalled.
….
Conclusion
We hold that under Indiana Evidence Rule 613(b), extrinsic evidence of a prior inconsistent statement may be admitted before or after a witness is given the opportunity to explain or deny the alleged statement. While the preferred method remains that the witness be confronted with the statement prior to the admission of extrinsic evidence, the trial court has wide discretion in making this evidentiary ruling. Several factors may properly sway the trial court to admit or deny extrinsic evidence given the circumstances of the case. To the extent that our prior holding in Hilton could be read to require trial courts to admit extrinsic evidence under Rule 613(b) in a specific sequence, we clarify that Hilton upheld the discretion of the trial court under Rule 613(b) without setting out a requirement for the sequence in which extrinsic evidence must be admitted. In accordance with that interpretation, the trial court did not err in excluding the proposed extrinsic evidence of a prior inconsistent statement offered by Griffith. Griffith’s conviction and sentence are affirmed.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.