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...