A witness can be impeached by proof of a prior contradictory or inconsistent statement. Inconsistencies in a witness' testimony go to the issue of credibility and not the sufficiency to support a verdict. Hargrave v. State, 311 Ga. App. 852 (2011). Even though the witness recants on the stand, his prior inconsistent statement is substantive evidence on which the jury can rely to convict the defendant. Holsey v. State, 316 Ga. App. 801 (2012).
O.C.G.A. § 24-9-83 provides that, before a witness may be impeached by his prior inconsistent statement, "the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible." Gunter v. State, 313 Ga. App. 756 (2012). In this regard, the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. Culver v. State, 313 Ga. App. 492 (2012). The attorney can then through another witness prove the making of the alleged statement. Bryant v. State, 288 Ga. 876 (2011). However, the fact that the witness admits that he made the inconsistent pre-trial statement does not render it inadmissible. Wilson v. State, 286 Ga. 141 (2009);
Duckworth v. State, 268 Ga. 566 (1997). Georgia courts have rejected the assertion that "a prior inconsistent statement is admissible only if the witness denies making the prior statement, but not if he simply disputes the truth of the earlier statement. There is no such 'denial' requirement under O.C.G.A.
§ 24-9-83.” Cummings v. State, 280 Ga. 831 (2006); Johnson v. State, 289 Ga. 106 (2011).
Although O.C.G.A. § 24-9-83 provides that written contradictory statements be shown or read to the witness there is no similar language requiring audio recordings of prior inconsistent statements to be played for the witness before using them for impeachment. Cade v. State, 289 Ga. 805 (2011). Under the new evidence code, neither a written or audio prior statement needs to be shown to the witness. O.C.G.A. § 24-6- 613(a).
A prosecutor cannot bolster, or add to, the truthfulness of its own witness by asking the witness if he is telling the truth until the witness has been questioned and impeached by the defense. Miller v. State, 275 Ga. 32 (2002). However, if the witness has made a prior contradictory statement, the prosecutor can confront the witness about the prior statement and then ask the witness whether he told the truth then or is telling the truth now. Hardy v. State, 293 Ga. App. 265 (2008).
The jury can choose to disbelieve a witness' testimony at trial in favor of the defendant and instead believe a contradictory pretrial statement that inculpates the defendant. Robinson v. State, 313 Ga. App. 545 (2012); Handley v. State, 293 Ga. App. 265 (2008).
The conviction of a defendant based on the knowing us of perjured testimony by the prosecution violates a defendant's constitutional rights. Cammon
v. State, 269 Ga. 470 (1998). However, mere inconsistencies between a witness' pretrial statements and their trial testimony is not proof of perjury. There is no requirement that the witness must give consistent evidence. White v. State, 315 Ga. App. 54 (2012); Hayes v. State, 152 Ga. App. 858 (1980).
It is not necessary to introduce the prior inconsistent statement into evidence before using it for impeachment. Sims v. State, 317 Ga. App. 420 (2012).