Section 16.14 Confrontation Clause Issues

• Library: Evidence 2017

5. (§16.14) Confrontation Clause Issues

The admission of an out-of-court prior inconsistent statement as substantive evidence does not offend the Confrontation Clause of the United States Constitution when the witness testifies at trial. Cal. v. Green, 399 U.S. 149, 155 (1970); Crawford v. Wash., 541 U.S. 36, 59 n.9 (2004) (“[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).

In Rowe v. Farmers Ins. Co., 699 S.W.2d 423 (Mo. banc 1985), one of the concurring judges provided a lengthy discourse analyzing the somewhat different Missouri constitutional counterpart to the federal Confrontation Clause, Mo. Const. art. I, § 18(a) (giving the accused the right to “meet the witnesses against him face to face”), arriving at the conclusion that use of an unsworn prior inconsistent statement as substantive evidence ran afoul of the Missouri Confrontation Clause, particularly if the only evidence against the defendant was the prior inconsistent statement. Rowe, 699 S.W.2d at 429–33.

That was exactly what happened in State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987). In Bowman, the defendant was tried for felony murder for the death of two persons during the course of a burglary. The charge required the State to prove that the defendant participated in the burglary and that the persons were killed during the course of the commission of that crime. The defendant claimed that there were other burglars in the house before he got there and that the victims were dead before he entered. The only evidence that the defendant was in the house before the victims were killed—and thus the only evidence supporting a charge of felony murder—was the taped pretrial statement of an accomplice. The accomplice testified at trial and repudiated his prior statement as coerced by the police. Bowman, 741 S.W.2d at 12–13. The Court had no trouble affirming the conviction on the basis of § 491.074, RSMo 2016, which allows the use of prior inconsistent statements as substantive evidence, because the Confrontation Clause does not bar all hearsay and “there is room for legislative judgment.” Bowman, 741 S.W.2d at 13.

On the other hand, the court in State v. Pierce, 906 S.W.2d 729 (Mo. App. W.D. 1995), was far more troubled by a conviction supported only by a prior out-of-court statement that was inconsistent with the witness’s in-court testimony. In Pierce, the victim...