PRIOR INCONSISTENT STATEMENTS AND PRIOR CONSISTENT STATEMENTS There is too something you don’t know on this topic.

IMPEACHMENT & REHABILITATION  See the Paper: General Principles, Cases & R.Evid.  Discusses Impeachment by showing  Bias  Defective Ability to Observe, Remember or Recount  Religious Beliefs  Expert Witnesses  Inconsistent Facts  Discusses Rehabilitation & Opening the Door

IMPEACHMENT & REHABILITATION  Materials on Character Evidence from Conference A Year Ago  Covered Impeachment by Showing Character for Dishonesty or Character for Telling Falsehoods, as well as dealing with evidence of Prior Bad Acts

Topic for Today  Impeachment by Prior Inconsistent Statement  Corroboration/Rehabilitation by Prior Consistent Statement

What do we know?  PRIOR INCONSISTENT STATEMENTS ARE ADMISSIBLE TO IMPEACH.  Rule 607: “The credibility of a witness may be attacked by any party, including the party calling him.”  PRIOR CONSISTENT STATEMENTS ARE ADMISSIBLE TO CORROBORATE.  A witness need not be impeached before his testimony can be corroborated by a prior consistent statement.

What do we know: Limitations  Prior out-of-court statements are almost always hearsay.  They are admissible to impeach or corroborate, but are not substantive evidence.  The Court must give a limiting instruction if asked.  Rule 403 balancing must still be undertaken.

What we do know: LIMITATIONS  To be admissible, the prior statement must be inconsistent with substantive evidence offered at trial (to impeach) or generally consistent with the substantive evidence at trial (to corroborate).  This is usually the live testimony of a witness, but it can be evidence about someone’s out of court statement that is admissible substantively such as  Defendant’s statements in criminal case  Admission of a party in civil case

WHAT WE DO KNOW  All of this usually adds up to: Let the evidence in and let the jury decide.

“Let it in and let the jury decide.” This is usually right. BUT NOT ALWAYS.

What you might tend to forget:  A party can’t say it is offering the evidence to impeach or corroborate when what the party is really trying to do is get inadmissible hearsay evidence before the jury.

The Usual Facts:  State finds itself with an uncooperative or forgetful witness who won’t testify to the Crucial Point.  The witness told Law Enforcement the Crucial Point when case was investigated. No hearsay exceptions apply.  What does the State do?

What does the State do?  Calls the witness who says X, then  Calls the LEO who took the statement and offers it as “corroboration.”  Calls the witness who says X, then  Cross-examines the witness about the prior inconsistent statement to “impeach,” then  Calls the LEO who took the statement and offers it again to “impeach”

IS THIS OK?  Often.  But Not Always.

LIMITATIONS  For inconsistent statements, “impeachment is impermissible where it is used as a mere subterfuge to get evidence before the jury which is otherwise inadmissible.”  State v. Hunt, 324 NC 343  For consistent statements, “the witness’s prior contradictory statements may not be admitted under the guise of corroborating his testimony.”  State v. Ramey, 318 NC 457

State v. Williams, 341 NC 1  State calls defendant’s girlfriend, who testifies: “Defendant told me X committed the murder.”  On C/E, GF admits telling LEO that Defendant told her Defendant committed the murder.  State calls LEO to testify that GF told him that Defendant told GF Defendant committed the murder. Trial Court allows testimony.

Error?  This is a trick question.  You need to know one more fact.  Only if the state was surprised by the witness’s change of story can the witness be impeached by the prior inconsistent statement.  Otherwise, it is a “mere subterfuge.”

State v. Williams, 341 NC 1, 9  “Where the party calling a witness is genuinely surprised by the witness’ change of his or her version of facts, impeachment by prior inconsistent statements is proper.”  “In such situations, however, ‘the prior inconsistent statements may only be used to impeach the witness’ credibility; they may not be admitted as substantive evidence.’”

State v. Williams, 341 NC 1  GF admitted that she had not told the DA or the police she was changing her story;  DA represented to the Court that an officer had talked with GF that morning to make sure she was going to testify consistently with her previous statement and she said she was.

State v. Williams, 341 NC 1  “Based on the foregoing, we conclude that the State was surprised at trial by [GF’s] change of her version of the facts, and the trial court properly allowed the State to impeach [GF] with her prior inconsistent statement.”  NO ERROR in allowing C/E of GF about her prior inconsistent statement.

State v. Williams, 341 NC 1  Ok to call LEO to testify about the prior inconsistent statement?  YES, because it corroborates GF’s testimony that she previously told LEO that defendant told her he shot the victim.

State v. Williams, 322 NC 452  In rape case, defendant calls his brother-in-law who corroborates some testimony about the relationship between victim and defendant.  On cross-examination, State asks B-in-L if he told his probation officer that the defendant told the B- in-Law the defendant had sex with the victim  Witness: “I deny it all. I didn’t tell my probation officer that.”

State v. Williams, 322 NC 452  On rebuttal, state calls two witnesses, the probation officer and someone who overheard the conversation with the probation officer.  Each testifies that the B-in-L said the defendant told the B-in-L the defendant had sex with the victim.

State v. Williams, 322 NC 454  Error? YES.  The brother-in-law’s “testimony concerning what he did or did not tell his probation officer was collateral to the issues in the case; therefore it was improper to impeach him on this point by offering the testimony of [the probation officer].”  Once he denied making any statement, what he allegedly said is “collateral.”

State v. Williams, 322 NC 454  “A witness may be cross-examined by confronting him with prior statements inconsistent with any part of his testimony, but where such questions concern matters collateral to the issues, the witness’s answers on cross-examination are conclusive, and the party who draws out such answers will not be permitted to contradict them by other testimony....”

State v. Williams, 322 NC 456  Reversible Error? YES  “The statements attributed to defendant constituted an admission that he had indeed raped the victim. In light of the sharp conflict in the evidence, with the Q of defendant’s guilty hinging solely upon whether the jury believed his testimony or the [victim’s],” there was a reasonable possibility of a different result had the evidence not been admitted.

State v. Riccard, 142 NCApp 298  “Once the witness denies having made the prior inconsistent statement, the prior statement concerns only a collateral matter, i.e., whether the statement was ever made.”  “Where the witness admits having made the prior statement, impeachment by that statement has been held to be permissible....”

State v. Riccard, 142 NCApp 298  Likewise, where there is testimony that a witness fails to remember having made certain parts of a prior statement, denies having made certain parts of a prior statement, or contends that certain parts of the prior statement are false, our courts have allowed the witness to be impeached with the prior inconsistent statement.....

State v. Hunt, 324 NC 343  In murder/rape case, state called 3 witnesses, one eyewitness who ID’d Defendant as assailant, and two others who placed D nearby in suspicious circumstances.  Defendant testified, offering an alibi, and called several witnesses who corroborated his alibi.  On rebuttal, State calls Marie, 14 yr old prostitute.

State v. Hunt  Marie denies ever giving a statement to the DA or LEO.  Marie denies ever saying  That she spent time with Defendant and one of his alibi witnesses before and after the murder;  That Defendant had grass stains on his pants on the second occasion (murder had taken place in empty grassy lot, presumably between the first and second times Marie saw Defendant), was nervous, and wanted to get drunk;  That defendant told her his alibi witness committed the murder.

State v Hunt  State allowed to call LEO to whom Marie had given these statements.  LEO read her earlier statements to the jury to “impeach” Marie’s testimony.  The written statements themselves were received as exhibits.  ERROR?

State v. Hunt  “[T]he trial court erred in permitting Officer Daulton to testify as to the substance of the prior statements denied by Marie. Officer Daulton could properly have been called to contradict the fact, denied by Marie, that she had made the statement to him on the specified date. But, as this Court made clear in Williams, ‘it was improper to impeach [her concerning what she had or had not told Officer Daulton] by offering the testimony of [Officer Daulton].’”

State v. Hunt  “Although unsworn prior statements are not hearsay when not offered for their truth, the difficulty with which a jury distinguishes between impeachment and substantive evidence and the danger of confusion that results has been widely recognized.”  Rule 607 requires the exclusion of hearsay evidence offered to impeach when real purpose is to put the hearsay before the jury.

State v. Hunt  Except for brief testimony about the color of her bicycle, Marie’s testimony consisted entirely of responding to challenges to her credibility.  The State appeared to know before Marie was called to the stand that she would not cooperate.  Inadequate limiting instructions were given.

State v. Hunt  Rule 403 also required exclusion: “Even if Marie’s testimony... had not been collateral and the purposes of their introduction had not been suspect as subterfuge, the application of... Rule 403 would properly have excluded them.”  Even though the trial court explicitly mentioned Rule 403 when admitting this evidence, the Court found an abuse of discretion and reversed.

CORROBORATION

What about corroboration?  State v. Williams, 355 NC 501 (2002): “In order to be admissible as corroborative evidence, a witness's prior consistent statements merely must tend to add weight or credibility to the witness's testimony. Further, it is well established that such corroborative evidence may contain new or additional facts when it tends to strengthen and add credibility to the testimony which it corroborates.”

Corroboration: Things you Know  New or additional facts in the earlier statement can still come in as corroborative is those new or additional facts are generally corroborative of the witness’s testimony  Minor inconsistencies or variations do not prevent the previous statement from being generally corroborative

Limitations: Things you might forget  A prior consistent statement is admissible to corroborate only if it is in fact generally consistent with the witness’s trial testimony. If the prior statement has “significant discrepancies” from the witness’s trial testimony it should not be admitted.  Even if evidence is admissible as corroborative, the court must determine under Rule 403 whether to admit the evidence.

State v. Frogge  Defendant on trial for murder of father and stepmother.  After arrest, Defendant meets witness Tew in jail and talks.  Tew contacts LEO and makes a statement, then testifies at trial.  State then calls LEO to read Tew’s earlier statement to LEO as corroboration.

State v. Frogge  Tew testified that D stated that the father, stepmother, and D were arguing when the father struck D with a metal bar, and that D told him that after his father struck him, D got a knife from the kitchen and stabbed his father and then his stepmother.  In his statement to the police, Tew said that he did not remember whether D said he had the knife first or his father had the bar first.

State v. Frogge  Second, Tew testified that after the murders, D went to Kim's house and partied, after which he returned to the home around 4:30 a.m. and removed money from his father's wallet in order to make it look like a robbery.  Tew told the police that D got the wallet out of his father's pocket and removed money from it before driving to Kim's house.

State v. Frogge  Finally, Tew testified that D did not say why he stabbed his stepmother.  In his statement to police, Tew stated that D told him he hated his stepmother because she was always "bossing" him around and threatening to throw him out of the house.

State v. Frogge  A "witness's prior statements as to facts not referred to in his trial testimony and not tending to add weight or credibility to it are not admissible as corroborative evidence." State v. Ramey, 318 N.C. 457, 469 (1986).  “The witness's prior contradictory statements may not be admitted under the guise of corroborating his testimony." Id.

State v. Frogge  “In the present case, we conclude that Tew's prior statement contained information manifestly contradictory to his testimony at trial and did not corroborate the testimony. Thus, we hold that it was error for the trial court to admit Tew's statement to the police for the purpose of corroborating Tew's testimony.”

State v. Frogge  “Defendant further contends that the inconsistencies between Tew's testimony and his statement to the police were manifestly prejudicial to defendant. We agree with this contention.”

State v. Frogge  “Tew's testimony tended to show that before defendant stabbed his father, defendant's father had provoked him by hitting him with a metal bar. Based on this evidence, the jury could have found defendant guilty of a lesser charge than first-degree murder for stabbing his father. Tew's prior statement suggested that defendant started stabbing [his father] before he was hit with the metal bar, thus weakening defendant's case for a lesser verdict. ”

State v. Frogge  “Further, as to when defendant took money from his father's wallet, the inconsistencies between Tew's prior statement and his trial testimony went to the heart of the prosecution's case for felony murder. Under the version of facts presented in Tew's testimony, a reasonable person could have concluded that there was no continuous transaction between the stabbings and the taking of the money and, thus, no felony murder.”

State v. Frogge  “Finally, Tew's testimony was that defendant gave no indication as to why he stabbed [his stepmother]. Yet Tew's prior statement, suggesting that defendant hated his stepmother, provided a motive and mens rea for first-degree murder.”

State v. Frogge  “Because the evidence of this statement was hearsay inadmissible for the purposes of corroboration and because the trial court improperly admitted the statement under the guise of corroboration, we conclude that defendant was unfairly prejudiced in this case and is therefore entitled to a new trial.”  State v. Frogge, 345 N.C. 614 (1997)

Summary  When a State’s witness will not say under oath Something Important to the State’s case that the witness previously told Law Enforcement,  BE VERY CAREFUL in deciding whether to admit the prior statement as impeachment or as corroboration.

Summary  There appears to be a different rule governing cross-examining the witness about the Important Prior Inconsistent Statement and offering the testimony of LEO about the Important Prior Inconsistent Statement.  Generally, ok to c/e the witness about the Imp. Prior Statement, but Cf. State v. Hunt, but evidence from LEO can only be offered in limited circumstances.

Summary  If offered to impeach, Witness must admit making the Important Prior Statement and State must be surprised  If offered to corroborate, Important “significantly different” statements must be excluded.  Redaction OK

Summary  More leeway if the witness was involved in the events at issue  Less leeway if the witness is reporting a confession by defendant

Summary  More leeway if the inconsistent fact is not particularly important  Leeway decreases as the inconsistent fact becomes more important

Summary  More leeway if the state’s case is otherwise strong  Less leeway if the state’s case is otherwise weak

Summary: Cases we Talked About  State v. Williams, 341 N.C. 1 (1995)  State v. Williams, 322 N.C. 452, 455 (1988)  State v. Williams, 355 N.C. 501 (2002)  State v. Hunt, 324 N.C. 343 (1989)  State v. Frogge, 345 N.C.614 (1997)  State v. Riccard,142 N.C.App. 298 (2001)

Summary: Cases we didn’t talk about  Williams v. McCoy, 145 N.C.App. 111 (2001)  Holt v. Williamson, 125 N.C.App. 305 (1997)  State v. Williamson, 333 N.C. 128 (1992)  State v. Williams, 330 N.C. 711 (1992)

CONCLUSION  Whenever you rule on an issue like this, say  “This is governed by the Williams case, or maybe it’s the Williamson case, and Rule 403. Objection sustained.”  OR  “This is governed by the Williams case, or maybe it’s the Williamson case, and Rule 403. Objection overruled.”