Prior Statements By Testifying Witnesses

801(d)(1)

3 Types of Prior Statements

• Prior Inconsistent Statements (PIS)

• Prior Consistent Statements (PCS)

• Prior Identifications (PID)

Prior Inconsistent Statements

How Do You Introduce PIS’s?

• During cross-examination of the target witness.

• During direct examination of another witness.

Impeachment vs. Substantive Use

(A Tale of Two Balloons)

He told me light was

red

Light was red

If observer (who is not the witness right now) says something is true, it

is SML that it is true

Forbidden Hearsay Inference?

Witness

For this to be probative, whom must jury believe?

Jury has to believe an observer who is not testifying right now.

People who tell different stories are

SML to be wrong

+

Don’t give his

testimony any weight either way

He previously said light was green

In court, he said it was red

150

8:00

250

7:55

205

7:50

How much “weight” do you give the scale’s testimony?

FRE & PIS’s as Substantive Evidence• At trial, Declarant must

–Testify, and–Be available for cross

• PIS must really be inconsistent• PIS must have been under oath• PIS must have been given in

–Trial, hearing or other proceeding–Deposition

What is not required? Cross-X of Previous Statement

Why isn’t it required?

Grand Jury

Do Problem 27(a)

The “Surprise” Problem

Prior Statement

I saw D enter building

•Minutes later, I saw him leave with a bloody knife

Trial Testimony

•I saw OG enter building

•I heard a scream and saw OG leave

• Then I saw D enter building

•Minutes later, I saw him leave with a bloody knife

Deposition (Cross)

Grand Jury (No Cross)

Police Station (Videoed &

Under Oath)

Prior Consistent Statements

Rehabilitation vs. Substantive Use

(Back to the Balloons)

FRE & PCS’s as Substantive Evidence

• At trial, Declarant must–Testify, and be available for cross

• PCS must be consistent w/testimony• PCS must be offered to rebut express

or implied allegation of–Recent fabrication–Improper motive–Improper influence

• Must be pre-motive

Do Problem 27(b)

Do Problem 27(c)

Do Problem 28

FRE & PID’s

• At trial, Declarant must

–Testify, and be available for cross

• ID must be a statement

–Identifying person

–After perceiving him or her

• ID must meet constitutional standards

• NB: Need not have been under oath

Do Examples of Prior ID’s

• Current Testimony

–No Memory

–Self-Corroboration

• How Introduced

–By Witness

–By Other Witness

• Types of Prior ID’s

–Line Up (or pointing)

–Naming

Missouri Courts on Prior Inconsistent

Statements

Problem 29

Do Problem 29

•Civil Cases (Rowe)• Admissible as Substantive

Evidence• No Surprise Required• Declarant must

• Testify and• Be available for cross

• “Covered” Criminal Cases (Crime listed in § 491.074)• Admissible as Substantive

Evidence • No Surprise Required• Declarant must

• Testify and• Be available for cross

• “Other” Criminal Cases (Crimes not listed in R.S. Mo. 491.074)• Not Admissible as Substantive

Evidence• Must have surprise to use for

impeachment.

Voucher Rule & the Surprise

Requirement

Problem 30

Do Problem 30