§ 32.02 Prior Inconsistent Statements: FRE 801(d)(1)(A)

• Jurisdiction: United States

§ 32.02 Prior Inconsistent Statements: FRE 801(d)(1)(A)

At common law, prior inconsistent statements were admissible only for impeachment; such statements were not offered for their truth, but only to show that the statement was made and was inconsistent with the witness's trial testimony.¹ In other words, the statement was admitted for credibility (impeachment) and not as substantive evidence.

The common law approach was problematic. At trial, the witness-declarant is under oath, subject to cross-examination, and her demeanor is observable by the jury. The only deficiency in trial safeguards is that the cross-examination is delayed; it occurs at trial rather than at the time the statement was made. In these circumstances, the policies supporting the exclusion on hearsay grounds do not seem persuasive. If this is so, all prior inconsistent statements should be admitted, as the federal drafters proposed.²Congress balked at such a major rejection of common law practice and limited admissibility to only a narrow category of statements as reflected in Rule 801(d)(1)(A).

Prior inconsistent statements that do not satisfy the requirements of Rule 801(d)(1) (A) are still admissible for impeachment purposes; Rule 613 governs the admissibility of these statements.

Under Rule 801, four conditions must be satisfied for admissibility: (1) the declarant must testify, subject to cross-examination, at the current trial; (2) the prior statement must be inconsistent with the witness's trial testimony; (3) the prior statement must have been given under penalty of perjury (under oath); and (4) the prior statement must have been made "at a trial, hearing, or other proceeding, or in a deposition."

Inconsistency defined. The federal courts have adopted a liberal view of the inconsistency requirement.³ Under some circumstances, a witness's claim of a lack of memory at trial may be considered inconsistent with a prior statement.⁴

"Other proceedings" defined. Statements made at a prior trial, suppression hearing, preliminary hearing, deposition, or any other proceeding at which testimony is taken subject to penalty of perjury, qualify under Rule 801(d)(1)(A). Testimony before a grand jury⁵ or at plea hearings comes within the rule.⁶ Stationhouse statements to the police or affidavits to government officials are not admissible under the rule.⁷ In short, formalized proceedings with transcripts are typically required.

Cross-examination defined. The rationale underlying the rule...