Prior Statements By Testifying Witnesses 801(d)(1)

3 Types of Prior Statements Prior Inconsistent Statements (PIS) Prior Consistent Statements (PCS) Prior Identifications (PID)

Prior Inconsistent Statements

How Do You Introduce PIS’s? During cross-examination of the target witness. During direct examination of another witness.

Impeachment vs. Substantive Use (A Tale of Two Balloons)

He told me light was red Light was red If observer (who is not the witness right now) says something is true, it is SML that it is true Forbidden Hearsay Inference? Witness For this to be probative, whom must jury believe? Jury has to believe an observer who is not testifying right now.

People who tell different stories are SML to be wrong + Don’t give his testimony any weight either way He previously said light was green In court, he said it was red

15 0 8: : :50 How much “weight” do you give the scale’s testimony?

FRE & PIS’s as Substantive Evidence At trial, Declarant must –Testify, and –Be available for cross PIS must really be inconsistent PIS must have been under oath PIS must have been given in –Trial, hearing or other proceeding –Deposition What is not required? Cross-X of Previous Statement Why isn’t it required? Grand Jury

Do Problem 27(a)

The “Surprise” Problem

Prior Statement I saw D enter building Minutes later, I saw him leave with a bloody knife Trial Testimony I saw OG enter building I heard a scream and saw OG leave Then I saw D enter building Minutes later, I saw him leave with a bloody knife Deposition (Cross) Grand Jury (No Cross) Police Station (Videoed & Under Oath)

Prior Consistent Statements

Rehabilitation vs. Substantive Use (Back to the Balloons)

FRE & PCS’s as Substantive Evidence At trial, Declarant must –Testify, and be available for cross PCS must be consistent w/testimony PCS must be offered to rebut express or implied allegation of –Recent fabrication –Improper motive –Improper influence Must be pre-motive

Do Problem 27(b)

Do Problem 27(c)

Do Problem 28

FRE & PID’s At trial, Declarant must –Testify, and be available for cross ID must be a statement –Identifying person –After perceiving him or her ID must meet constitutional standards NB: Need not have been under oath

Do Examples of Prior ID’s Current Testimony –No Memory –Self-Corroboration How Introduced –By Witness –By Other Witness Types of Prior ID’s –Line Up (or pointing) –Naming

Missouri Courts on Prior Inconsistent Statements

Problem 29 Do Problem 29

Civil Cases (Rowe) Admissible as Substantive Evidence No Surprise Required Declarant must Testify and Be available for cross “Covered” Criminal Cases (Crime listed in § ) Admissible as Substantive Evidence No Surprise Required Declarant must Testify and Be available for cross “Other” Criminal Cases (Crimes not listed in R.S. Mo ) Not Admissible as Substantive Evidence Must have surprise to use for impeachment.

Voucher Rule & the Surprise Requirement

Problem 30 Do Problem 30