State v. Yousif, 982 N.W.2d 870

On July 19, 2020, K.A. was shot while driving; his initial statement to police identified the shooter as an unknown male.
Physical evidence (trajectory through the driver’s seat where Yousif sat) and a later correction by K.A. implicated Mohammed Yousif.
At trial K.A. testified about inconsistencies in his prior statements; the defense sought to play the recorded police interview containing those prior inconsistent statements.
The State objected under N.D.R.Ev. 613(b) as extrinsic testimonial evidence because K.A. had already testified and the recording was being offered after he was off the stand.
The district court allowed cross-examination of the case agent using a transcript and to question the agent about inconsistencies, but excluded playing the audio recording.
The jury convicted Yousif of aggravated assault; Yousif appealed arguing the court erred by excluding the recording.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether excluding the recorded police interview of K.A. (a prior inconsistent statement) was an abuse of discretion	The recording is extrinsic testimonial evidence; Rule 613(b) requires the witness be confronted and given opportunity to admit/deny while on the stand, so the audio should be excluded	The recording was admissible impeachment evidence; the jury should hear the interview and the court’s restriction unduly limited impeachment and credibility evidence	The court did not abuse its broad discretion. Although foundational elements of Rule 613 were satisfied, the trial court may exclude extrinsic evidence and permissibly limited the defense to questioning the agent and using a transcript rather than playing the audio.

State v. Poulor, 932 N.W.2d 534 (N.D. 2019) (abuse-of-discretion review for evidentiary rulings)
State v. Peltier, 878 N.W.2d 68 (N.D. 2016) (district court has broad discretion on evidence)
State v. Demery, 331 N.W.2d 7 (N.D. 1983) (prior inconsistent statements are impeachment, not substantive, unless under oath)
State v. Helm, 946 N.W.2d 503 (N.D. 2020) (federal interpretations persuasive for state rules derived from federal rules)
United States v. Buffalo, 358 F.3d 519 (8th Cir. 2004) (Rule 613(b) ordinarily requires confronting the witness with the prior inconsistent statement)
United States v. Schnapp, 322 F.3d 564 (8th Cir. 2003) (federal Rule 613 standard)
United States v. Yarrington, 634 F.3d 440 (8th Cir. 2011) (Rule 613(b) requirements sustain confrontation/examination procedure)
United States v. Surdow, 121 Fed.Appx. 898 (2d Cir. 2005) (trial court may exclude extrinsic impeachment evidence not revealed while witness was on the stand)