Section 16.10 Generally

• Library: Evidence 2017

1. (§16.10) Generally

A prior inconsistent statement is one that to some degree conflicts with the witness’s present testimony at trial. If admitted as an exception to the hearsay rule—as opposed to being offered merely for impeachment—a prior inconsistent statement is substantive evidence of the matters it contains. For a discussion of the difference between impeachment for a prior inconsistent statement of a witness and admission of evidence for the witness’s character for truthfulness and veracity, see Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010). In criminal cases, the failure to impeach with a prior inconsistent statement may be a basis for postconviction relief if the prior statement offers a defense to the crime charged. Johnson v. State, 406 S.W.3d 892, 902–03 (Mo. banc 2013).

This exception is targeted at prior inconsistent statements of nonparties. If the declarant testifies and is subject to cross-examination, the federal rules exclude these statements from the definition of hearsay. Federal Rule of Evidence 801(d)(1)(A); see also Rowe v. Farmers Ins. Co., 699 S.W.2d 423 (Mo. banc 1985). A party’s prior statements, inconsistent or otherwise, may be admitted as admissions.

It has long been the rule that prior inconsistent statements made under oath—for example those made in depositions—may be admitted as substantive evidence. See Pulitzer v. Chapman, 85 S.W.2d 400 (Mo. banc 1935). These statements did not present the usual dangers of hearsay because they were made under oath and were subject to cross-examination. The same rule applied to depositions taken in criminal cases. See State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973).

In 1985, the legislature passed § 491.074, now RSMo 2016, which, after being amended in 2000, provides: “Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such...