Split Noted: Can the Prior Inconsistent Statements of a Witness be Admitted Into Substantive Evidence?

Per State v. Espinal, 2008 WL 818979, *11-*15 (R.I. Mar. 28, 2008)

Hearsay is one of the most notoriously difficult areas of the law. After cramming all week for an evidence exam, a contributor to Southern Appeal offered this proposal for hearsay reform. This state criminal appeal offers an insight into two related splits of authority concerning the admissibility of witness’s prior inconsistent statements.

The common law and current federal rule held such evidence admissible only to impeach the witness’s credibility, not as substantive proof in its own right. The reasoning behind this approach was that the statements were not given under oath, before an authority figure, nor subject to cross-examination. This logic, however, is questionable given that the witness is under oath at the time the prior inconsistent statement is offered into evidence and can be examined (and cross-examined) regarding such statements.

As the Rhode Island Supreme Court notes, a majority of jurisdictions have moved away from this rule and now permit inconsistent statements to enter the substantive evidence in a case (citing 30 A.L.R.4th 414). While the circuits still follow the common law and federal rule, some slippage is notable even here. The Third Circuit upheld the admission into evidence of prior inconsistent statements where it believed a witness was feigning memory loss.

Among those jurisdictions that do permit such statements into substantive evidence, a second split has emerged; can such evidence, standing alone, suffice to convict a defendant? The Sixth Circuit and Montana answer that question with a blanket proscription of such convictions; New Jersey and Vermont permit them.