We are all familiar with the principle that a trial witness may be confronted with a prior inconsistent out-of-court statement on cross examination, which has implications in every trial where the credibility of witnesses is material. What is less apparent is how complicated this exception to the hearsay rule can become when a ruling is required. Here we examine some of the concerns for the defense of medical malpractice cases when an issue arises as to the use of a prior inconsistent statement at trial.

The underlying legal principles are best illustrated in two divided opinions of The Court of Appeals, People v. Wise, 46 NY2d 321 (1978) and People v. Ludwig, 24 NY3d 221 (2014). These cases both involved the trial of major criminal cases wherein the credibility of witnesses was crucial to a just result. In both cases, the court resolved substantial issues as to whether the defendant had received a fair trial with discussion of the role of prior inconsistent statements and prior consistent statements received in evidence over objection. In People v. Wise, supra at 326, the court set forth the elements of the evidentiary rule as follows: