Litigation terms
Prior inconsistent statement
A prior inconsistent statement is an earlier statement by a witness that conflicts with their current testimony — the primary tool for impeaching credibility, and in some circumstances admissible as substantive evidence.
The distinction that controls everything: impeachment versus substantive use. Any genuine inconsistency can be used to impeach — to argue the witness shouldn’t be believed. But under Federal Rule of Evidence 801(d)(1)(A), the earlier statement is only admissible for its truth when it was given under penalty of perjury in a prior proceeding or deposition. An inconsistent remark in an email impeaches; an inconsistent answer in a deposition can also prove.
Why it matters in practice
Confrontation has a choreography — commit, credit, confront: lock the witness into today’s answer, establish the reliability of the earlier statement (“you were under oath… you signed the transcript”), then read the conflict. Done cleanly, it’s the most damaging moment in a cross. Done from memory, at the lectern, hunting for a page — it dies.
Which is why the real work happens before trial: the inconsistencies must already be found. The intake form against the deposition. Last year’s affidavit against this year’s testimony. One deponent against another. In a six-figure-page record, the conflicts that win cases are discovered systematically or not at all.
In the fact record
This is FactMarshal’s signature use case: because testimony, pleadings, and records live in one verified fact record, conflicting statements surface automatically — side by side, each cited to its page and line, sortable by witness. The confrontation packet exists before the deposition ends.