The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness' testimony if it is shown that a witness had an opportunity to make a statement, and under the circumstances, a person would normally have made a statement.
Defendant was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 -- 4(a)) He was found guilty after a jury trial of aggravated battery based solely on permanent disability. On appeal, defendant argued that the trial court erred in permitting improper impeachment of four defense witnesses, who testified they were present when victim was hit by an individual other than defendant. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The appellate court affirmed the circuit court's judgment of conviction.
Did the trial court properly establish the required evidentiary foundation for impeachment of witnesses?
Where a witness is a friend of the accused, and has had knowledge of the friend's arrest before trial, evidence of the witness' failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities.