Section 23.83 Prior Inconsistent and Consistent Statements

• Library: Criminal Practice 2012 Supp

M. (§23.83) Prior Inconsistent and Consistent Statements

Traditionally, evidence showing a witness’s prior inconsistent statements was not admissible as substantive evidence but could only be used for impeachment. State v. Granberry, 491 S.W.2d 528, 531 (Mo. banc 1973). A corollary rule also held that a party could not impeach its own witness in a civil or criminal trial absent a showing of surprise or that the witness was hostile. State v. Byrd, 676 S.W.2d 494, 502 (Mo. banc 1984), cert. denied, 469 U.S. 1230 (1985).

In 1985, the Supreme Court of Missouri abrogated the traditional rule against impeaching counsel’s own witness with prior inconsistent statements in civil cases. Rowe v. Farmers Ins. Co., 699 S.W.2d 423, 425 (Mo. banc 1985). That case also held that a prior inconsistent statement could be used as substantive evidence in a civil case if the witness was present for cross-examination. Id. That same year, the Missouri legislature enacted § 491.074, RSMo 2000.

Section 491.074 was amended, effective August 28, 2000, providing that: “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 statement.” Thus, § 491.074 is no longer limited to prosecutions under Chapters 565, 566, or 568, RSMo.

Admission of a witness’s prior inconsistent statement under § 491.074 does not violate the confrontation clauses of the Missouri or the federal constitutions when the witness is present in the courtroom and subject to cross-examination, State v. Bowman, 741 S.W.2d 10, 13 (Mo. banc 1987), and it does not violate due process or equal protection, State v. Bible, 750 S.W.2d 676 (Mo. App. E.D. 1988). Accord Cal. v. Green, 399 U.S. 149 (1970). The application of § 491.074 to a crime committed before the enactment of that section has been held not to run afoul of the prohibition on ex post facto laws. State v. Belk, 759 S.W.2d 257, 259 (Mo. App. E.D. 1988).

The only necessary foundation under § 491.074 is an inquiry as to whether the witness made the prior statement and whether the statement is true; the former common-law rule about impeachment of counsel’s own witness and the “friendly/hostile” distinction as to witnesses is abolished by the statute. Bowman, 741 S.W.2d at 13–14. The Bowman Court specifically declined to address the issue of whether...