Prior Statements By Testifying Witnesses 801(d)(1)
Dec 14, 2015
3 Types of Prior Statements
• Prior Inconsistent Statements (PIS)
• Prior Consistent Statements (PCS)
• Prior Identifications (PID)
How Do You Introduce PIS’s?
• During cross-examination of the target witness.
• During direct examination of another witness.
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
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
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)
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
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
•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.