Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER V: HEARSAY
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C. Prior Statements of a Witness (452)

Problem-The Stolen BMW (453)

The point:

A prior statement may be offered non-substantively to impeach the witness under FRE 613, or, if it meets the requirements of FRE 801 (d)(1), as substantive evidence.

Answer and Analysis:

On this evidence D's motion for directed verdict should be granted. P's counsel asked W about a prior inconsistent statement pursuant to FRE 613. When W denied making the statement, P's counsel proceeded to prove that W had made the statement by offering extrinsic evidence that W had made the statement. P's counsel was entitled to do this because the subject matter of the statement was not collateral, and even though W was P's witness (FRE 607). However this evidence is offered only to prove that the witness is not credible because he says different things at different times. The prior inconsistent statement is not offered for the truth of the matter asserted. If it were to be so offered, it would be inadmissible hearsay.

D is entitled to an instruction that the evidence that W told P that D took the BMW is to be considered by the jury only as it bears on W's credibility, and not for the truth of the matter asserted.

Since the evidence of W's statement to P implicating D is not admissible for its truth, there is no evidence in the record that D took the BMW. D is, therefore, entitled to a directed verdict when P rests her case.

Compare FRE 801(d)(1)(A) and 804(b)(1) with 613. Had W 's statement to P been made under oath in a proceeding, it would have been admissible for the truth of the matter asserted. Had the statement been made in an appropriate proceeding and-been subject to cross-examination, the statement would be admissible for its truth even if W were presently unavailable.



Problem - The "Forgetful" Witness (453)

Answer and Analysis:

(1) In the circumstances presented by the problem the judge would undoubtedly conclude that W was "forgetting" in order not to testify against his confederate. True forgetfulness is not inconsistent with prior statements made when a witness's memory is fresher. It is consistent for a witness to remember at one time and to forget at a later time. However, feigned forgetfulness is inconsistent for purposes of impeachment under FRE 613. The function of the rule, which is to allow a witness's credibility to be impeached by showing that he tells inconsistent stories, is served by allowing the witness to be questioned about the prior statements. The reason Wigmore advances in support of this principle is that an unwilling witness often takes refuge in a failure to remember, and the astute liar is sometimes inpregnable unless his flank can be exposed to an attack of this sort. 3 Wigmore, Evidence, 1043 (3d ed., 1940) .

Whether or not the witness is feigning forgetfulness, and therefore testifying inconsistently within the meaning of FRE 613, is a matter to be decided by the judge pursuant to FRE 104(a). However, since W has not testified to anything substantive, there may be no justification for impeaching him. If the impeaching evidence is not admissible for its truth (that is, not admissible under FRE 801), then the prejudice of admitting it would outweigh the value of the impeachment. (See Whitehurst v. Wright (455)).

(2) Testimony before the grand jury qualifies under FRE 801(d)(1)(A). Indeed, FRE 801 was drafted specifically to permit the prosecution to introduce grand jury testimony for its truth when inconsistent with the witness's testimony at trial. Moreover, the feigned forgetfulness by the witness would be "inconsistent" with the prior testimony. See United States v. Insana, 423 F.2d 1165 (2d Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970).

(3) It would make a difference if W were available but did not testify; the prosecution must establish as a foundational element to the admissibility of th grand jury testimony under FRE 801(d)(1)(A) that the testimony is inconsistent with W's testimony at trial. That means that W has to testify. It does not mean that the grand jury testimony must be introduced while W is on the stand, although that would be normal procedure.

(4) W is "subject to cross-examination" if the factfmder has a basis for assessing the truth of the prior statement from the witness's statements and demeanor on the stand. (See Part IV of the Supreme Court's opinion on California v. Green (579, 584)). This depends on just what the witness has said and done. See also United States v. Insana, supra.

(5) E's Sixth Amendment rights have not been violated if W is subject to cross-examination concerning the statement. The qualification in the rule that the witness must be subject to cross-examination concerning the statement embodies the constitutional standard. (See Part IV of the opinion in California v. Green.)

(6) (a) Had W's statements been made at a preliminary hearing, subject to or actually cross-examined by D's counsel, then the statements would be admissible as former testimony under FRE 804(b)(1). Is W unavailable for purposes of FRE 804? Yes. (See FRE 804(a)(2) and 804(a)(3)). It is perfectly possible for a witness to be "available for crossexamination" under FRE 801 and simultaneously "unavailable" under FRE 804. The function of FRE 804 is best served by allowing the former testimony to be admitted whenever it is not simply cumulative.

(b) Had the statement been made by W to the arresting officer it would not be admissible under either FRE 801 (because not under oath in a proceeding) or FRE 804 (because not subject to cross-examination when made). It would be admissible, if at all, only under FRE 613, and then not for the truth of the matter asserted, but only to impeach W's credibility.



Whitehurst v. Wright - 592 F.2d 834 (5th Cir. 1979)

The witness was called solely for the purpose of impeaching him with a prior inconsistent statement. The statement was not admissible for its truth because it was not made under oath or in a proceeding. The case illustrates a problem created by the narrowing of FRE 801 from what was originally proposed. Under Rule 801 as originally proposed, all prior inconsistent statements would have been admissible for their truth as long as the witness was available for cross-examination concerning them. Under such a rule it would have been completely appropriate for Mrs. Whitehurst to call Detective Humphrey solely for the purpose of introducing his earlier statement.

But such statements were made inadmissible for their truth by FRE 801 and 802 as adopted. FRE 613, combined with FRE 607, seem on their face to provide a way of circumventing the rule, since the prior statement, while not admissible for its truth, is admissible for impeachment to show that the witness tells different stories at different times, and FRE 607 permits any party to attack any witness. Whitehurst implicitly suggests that Congress should have amended FRE 607 at the same time it narrowed FRE 801.

Judge Weinstein and Professor Berger suggest that the Whitehurst problem should be dealt with by applying FRE 403. Since the witness offered no significant substantive testimony, the impeaching testimony had no probative value and presented a considerable risk that, notwithstanding the judge's instructions to the contrary, the factfinder would consider the prior inconsistent statement for its truth. See Weinstein's Evidence 607 [O1]. This approach is criticized for leaving too much to the ad hoc discretionary judgments of the trial judge. See Graham, The Relationship Among Federal Rules of Evidence 607, 801(d)(1)(A) and 403 : A Reply to Weinstein's Evidence, 55 TEX. L. REV. 573 (1977).



Problem - The Prosecution's Patsy (457)

Answer and analysis:

Admissible. The defense impliedly charged the witness with embroidering his story by adding in references to D 's nephew, and succeeded in introducing the grand jury testimony and the trial testimony under FRE 801(d)(1)(A) as inconsistent statements. Once in evidence, the prosecution may read from them, even though reading from them does not rebut the inference the defense was raising. Tactically it was a mistake for the defense to introduce the prior statements.

This problem is based on United states v. Lombardi. 550 F.2d 827, 828-829 (2d Cir. 1977) (per curiam).



Tome v. United States, 115 S. Ct. 698 (1995)

This case considers the admissibility of prior consistent statements introduced under FRE 801(d)(1)(B) "to rebut an express or implied charge ... of recent fabrication or improper motive". It is clear that such statements, if made before an inconsistent statement prior to the witness's in-court testimony would tend to rebut the inference that the witness had fabricated the in-court testimony. But what about consistent statements made after the time of the prior inconsistent statement? Although the language of the Rule, read broadly, would encompass all sorts of prior consistent statements offered to rehabilitate a witness, the Supreme Court read the rule narrowly to include only the kind of prior-prior consistent statements that would have been admitted at common law.



Problem - Blind Justice (464)

The out of court statement of the blind man does not fit easily within FRE 801(d)(1). It is not inconsistent with his trial testimony, and although it is consistent, it is not offered to rebut a charge of recent fabrication. Is it admissible as a (C) statement of "identification of a person made after perceiving him"? Can the declarant be cross-examined about the statement? We suggest that the answer to both these questions is "yes;" so long as the blind man is in court and available for cross-examination.



Problem - The Erring Eyewitness (464)

The point:

Exploring statements of prior identification under FRE 801(d)(1)(C):

Answer and Analysis:

Admissible under FRE 801(d)(1)(C) . The underlying rationale for FRE 801(d)(1)(C) is that an earlier identification made when the event was fresh in the mind of the witness and under circumstances often much less suggestive than an in-court identification is more reliable than an in-court identification, and therefore should be admitted. This could apply to a photographic as well to a live identification.

The "oath" requirement of FRE 801 (d) (1)(A) does not apply. The earlier identification is admissible whether it is consistent or inconsistent with the present testimony of the witness; therefore the earlier statement need not meet the stringent "oath" and "proceeding" requirements of FRE 801(d)(1)(A).

However, if the witness cannot recall the prior identification, then evidence of the prior identification is not admissible because the witness is not "subject to cross-examination concerning the statement."

This problem is based on United States v. Lewis, 565 F.2d 1248, 1250-1252 (2d.Cir.1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978).

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