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FreeQuick bite 02.05.01 · Library 02 · Deposition Skills

Impeachment with a deposition

Federal law changed in 2024

Evid. Code § 770 · FRE 613(b) · CCP § 2025.620(a)

Rule 613(b) now puts the chance to explain first — but not for an opposing party’s own statement, which is most civil depositions.

THE SEQUENCE FEDERAL CALIFORNIA 1 The statement is inconsistent The threshold. Not merely different. 613 § 780(h) 2 Showing it to the witness Neither requires it. Counsel is the divergence. 613(a): no § 769: no 3 The chance to explain Federal first, unless it is a party statement. 613(b) § 770 THEY DIVERGE 4 Then the extrinsic proof Read the page and line. 613(b) § 770 Amended 1 December 2024. The old federal practice no longer works.

Scroll the diagram sideways →

Plate 02.05.01 What changed, and the carve-out. Rule 613(b) now requires the chance to explain before the extrinsic evidence, unless the court orders otherwise. But it “does not apply to an opposing party’s statement under Rule 801(d)(2)” — which covers most civil depositions.
§ The two routes compared
The stepFederalCalifornia
Confront first?The 2024 change.
Federal
613(b)
Yes — unless the court orders otherwise, or it is an 801(d)(2) party statement
California
§ 770(a)
One of two routes, not the only one
Or excuse later?The alternative.
Federal
—
Effectively gone as of December 2024
California
§ 770(b)
Extrinsic evidence comes in if the witness has not been excused
Showing the statementBefore you ask.
Federal
613(a)
Need not show the witness; must show adverse counsel on request
California
§ 769
No disclosure required at all. § 768(b) bites only once you show the witness
In the courtroom
Do not excuse the witness§ 770(b)Keeping the witness available preserves the second route. Excusing them closes it.
The bigger escape613(b)The subdivision does not apply at all to an opposing party’s statement. Deposing your opponent puts you outside it.
Same thresholdBoth require genuine inconsistency. A fuller answer at trial is not an inconsistent one.
Application

Impeachment with a deposition is the most common use of a transcript and the one whose rules just moved. Rule 613(b), amended 1 December 2024, makes the opportunity to explain or deny a prerequisite to extrinsic evidence rather than something that can follow. But read the subdivision’s last sentence: it does not apply to an opposing party’s statement under Rule 801(d)(2), so deposing your opponent puts you outside the requirement entirely.

California kept the older, more forgiving structure. Section 770 admits the extrinsic evidence if the witness was given the chance to explain or deny or has not been excused from giving further testimony. That second clause is worth guarding: once you excuse a witness you have closed a door the code left open for you.

The confrontation

Commit“Your testimony today is that the light was green.”

Confront“You were deposed on 14 March, under oath. Page 82, line 12. Question: what color was the light? Answer: I don’t remember.”

Three traps
  • Confronting when you need not.613(b) does not reach an opposing party’s statement. Check who the deponent is before conceding the sequence.
  • Excusing the witness in California.Section 770(b) is the route that survives an unasked confrontation. Excusal closes it.
  • Impeaching on a difference.A fuller answer is not an inconsistent one, and the objection will be sustained.
Where to go deeper
NextThe three-step impeachment

The mechanics, step by step.

Quick bite 01.05.05Prior inconsistent statements

As substantive evidence.

CourseDeposition Skills Clinic

Session 5.

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