That's (not) what she said: the case for expanding admission of prior inconsistent statements in New York criminal trials.

• Author: DeBraccio, Steven V.

1. INTRODUCTION

   The admission of prior inconsistent statements is a delicate topic in New York. The rules concerning prior inconsistent statements, like other hearsay evidence determinations, impinge on the essentials of balancing the interest in admitting all relevant evidence to aid the fact finders in criminal trials with the defendant's rights to effectively refute and test the evidence admitted. Further, admitting evidence for a purpose other than to prove the truth that the evidence purports to suggest makes this balancing even tougher; limiting instructions and concerns over unfair prejudice are at their maximum. Still, we allow evidence for limited purposes because the criminal justice system operates on the assumption that jurors will follow instructions to consider evidence for only permissible purposes. (1)

   The critical question in this article is the comparison of the New York and federal approaches to admitting prior inconsistent statements in criminal cases and ultimately, which is the approach that more appropriately balances defendants' rights with those of the State. This article contains four parts. In Part II, I will introduce the rules on prior inconsistent statements in New York and in federal law for both those statements made formally and those made informally. Further, I will introduce two cases that would be affected by the New York approach, along with a scientific experiment that sheds new light on eyewitness testimony. In Part III, I will evaluate the differences between the New York and federal rules and discuss the benefits and drawbacks of both standards. In Part IV, I will conclude that the federal rules on prior inconsistent statements are the more appropriate standard and would further the interest in fact-finding while still adequately protecting defendants' rights.

2. THE TWO APPROACHES TO PRIOR INCONSISTENT STATEMENTS

   1. Introduction to Prior Inconsistent Statements

      Before teasing out the differences between the New York and federal approaches on prior inconsistent statements, some background on two key topics is necessary: (1) hearsay, and (2) the definitions of a prior inconsistent statement. First, hearsay is defined both in New York (2) and the Federal Rules of Evidence (3) as an out-of-court statement that is admitted for its truth. A party may seek to admit a prior inconsistent statement either for the truth of the matter asserted (as hearsay) or to critique a testifying witness (4) or hearsay declarant's (5) credibility. Second, a prior inconsistent statement is defined as one that "taken as a whole, either by what it says or by what it omits to say affords some indication that the fact was different from the testimony of the witness whom it sought to contradict." (6) On the edges, there are cases in which it is difficult to determine whether a statement truly is inconsistent; (7) however, this paper will not parse out the definition at length. It will be assumed that a party can make a showing that the statement is inconsistent.

   2. The New York Approach

      Like the federal rules, the New York "rules of evidence" have three main rules for admitting inconsistent statements, (8) which are contained in the New York Criminal Procedure Law (CPL). (9) First, inconsistent statements made by a defendant are freely admissible as impeachment evidence or substantive evidence under the party admission rule, so long as the statement was voluntarily made. (10) There is no requirement that it be given in any formal setting. (11) Second, prior inconsistent statements are admissible against a witness or hearsay declarant (on cross-examination) for impeachment purposes, whether or not the statement was formally made, so long as a proper foundation has been made. (12) Third, the most restrictive rule applies where a party seeks to impeach his/her own witness on direct examination. (13) Where a party seeks to impeach his/her own witness, the party may seek to admit a prior inconsistent statement for impeachment purposes only where: (1) the party gives inconsistent testimony on a material issue in the case that tends to disprove the position of the party who called the witness, and (2) the statement is either (a) orally made under oath or (b) written and signed by the witness. (14) There is considerable case law regarding whether a witness's statement has affirmatively damaged a party's position. (15)

      A brief history of CPL section 60.35 is in order. CPL section 60.10 provides that "[u]nless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings." (16) The New York Civil Practice Law and Rules (CPLR) provision on point is CPLR 4514, which provides that "[i]n addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath." (17) Thus far, there is a requirement that the statement be made in writing or under oath, but there is nothing in CPLR 4514 about a requirement that a witness affirmatively damage a party's position if the party seeking to impeach called the witness. (18) It is the language of CPL section 60.35(1) that displaces the language of CPLR 4514. (19)

      The Court of Appeals had to scrutinize CPL section 60.35 for the first time in People v. Fitzpatrick. (20) That case involved a perjury prosecution in which a witness failed to recall at trial whether the defendant submitted a check to the witness to cash even though he testified at the grand jury that the defendant did tender the check. (21) The Court of Appeals correctly interpreted the literal text of CPL section 60.35 as requiring "testimony [by the witness to be impeached] upon a material issue of the case which tends to disprove the position of such party...." (22) It noted that "were it not for the purpose of including the full-blown damage requirement, there would have been no need to pass [a] new CPL 60.35 at all" and CPLR 4514 "retained intact for civil trials." (23) The court further commented that under the requirement that a witness affirmatively damage a party's case,

      a balance is struck between the need "to correct the inequities occasioned by the fact that in many cases both sides were unfairly hampered by ... [an] inability to impeach unreliable witnesses upon whom they were compelled to rely" and the need to ensure that material which has "no substantial or independent testimonial value" is excluded. (24) The New York approach centers around two axes: (1) whether the statement was formally made and (2) whether the impeaching party called the witness. (25) The first axis, whether the statement was formally made, hinges largely on the reason the hearsay rule exists. (26) Oddly enough, the prevalence of the hearsay rule is shrinking, with England making an exception in criminal cases where the witness is unavailable and Canada, Australia, and New Zealand making exceptions to hearsay whenever the statement is likely to be reliable. (27) United States federal courts have not been so liberal; (28) however, there have been an ever-burgeoning increase in the exceptions to hearsay (with the last count at thirty-six--eight in Rule 801, twenty-three in Rule 803, four in Rule 804, and the residual exception in Rule 807). (29) Moreover, while the hearsay rule and the Confrontation Clause were thought to stem from the same rationale, (30) that rationale being a reaction to trial court abuses in sixteenth- and seventeenth-century England, (31) the Supreme Court has moved away from such an interpretation in their most recent Confrontation Clause line of cases. (32)

      The second axis concerns which party called the witness. It is often said in New York courts that a party must generally live with his/her witness's testimony, unhelpful as it may be. (33) The court in Fitzpatrick explained the rule in a historical context:

      It is helpful to an understanding of the significance of the statutory change to note briefly how the principles of the law of impeachment have developed. The idea of prohibition of impeachment of one's own witnesses descends to us from the ancient time when a party's witnesses were brought into court not to swear to facts in a case but rather to a party's own credibility. Not surprisingly, it then was considered ill befitting for a party to question the veracity of his/her own witnesses. (34) C. The Federal Approach

      The Federal Rules of Evidence followed largely the same track as the New York rules, only allowing impeachment of a party's own witness "if that witness's testimony was both surprising and damaging," (35) and even so, the prior inconsistent statements were traditionally only admissible for impeachment purposes, not as substantive evidence. (36) In fact, before 1975 when Congress passed the Federal Rules of Evidence allowing for impeachment of a party's own witness under Rule 607, (37) only the Second Circuit allowed for the admission of prior inconsistent statements as substantive evidence. (38)

      The federal rules have three main rules for admitting prior inconsistent statements. First, statements made by a defendant are freely admissible against him/her, whether or not they are inconsistent. (39) Second, formal statements can be used both as impeachment evidence and as substantive evidence. (40) Prior inconsistent statements may be admitted as substantive evidence if: (1) "[t]he declarant testifies and is subject to cross-examination about the prior statement, and the statement: [(2)] is inconsistent with the declarant's testimony and [(3)] was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition ..." (41) Third, statements that do not meet the formality requirements of Rule 801(d)(1)(A) are admissible against...