Remembrance of Things Past: 7th Circuit Finds Prior Inconsistent Statement Rule Applied to Forgetful Witness

Federal Rule of Evidence 801(d)(1)(A) indicates that

A statement that meets the following conditions is not hearsay:  

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:  

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition….

And, as the recent opinion of the Ninth Circuit in United States v. Cooper, 2014 WL 4476550 (7th Cir. 2014), makes clear, this “prior inconsistent statement” Rule doesn’t only apply in cases involving overt inconsistencies (e.g., Witness testifies at the preliminary hearing that Dan shot Vince and then testifies at trial that Carl shot Vince). Instead, it also applies in the case of the “forgetful” witness.

In Cooper, Steven McDowell, Jeremy Cooper, Norman Breedlove, Murray Harris, and Robert Presley were charged with conspiring to possess with intent to distribute and to distribute one kilogram or more of heroin. At trial,

Steven McDowell’s mother, Donia McDowell…, and her boyfriend, Vaughn Johnson, testified at trial. But their trial testimony, in which they denied having much knowledge about the defendants’ alleged drug activities, was much less illuminating than their grand jury statements. The government impeached them with their previous statements and introduced redacted versions of the grand jury testimony into the record as substantive evidence.

After they were convicted, McDowell and Cooper appealed, but the Seventh Circuit found no merit to their argument, concluding as follows:

We begin with the testimony of McDowell’s mother Donia, who made statements in her testimony before the grand jury that implicated McDowell, Cooper, Harris, and Presley in drug-trafficking activities. At trial, however, Donia claimed that, while she remembered testifying before the grand jury, she did not remember making the incriminating statements and did not know about the group’s alleged illicit activities. Once she denied those statements, her grand jury testimony was admitted at trial. Federal Rule of Evidence 801(d)(1)(A) permits the court to admit a prior inconsistent statement given under oath for the truth of the matter asserted in the statement when the declarant testifies at trial and is subject to cross-examination regarding the prior statement….Donia, the declarant, denied any knowledge of the facts at issue and claimed she could not recall her prior statements to the grand jury. She therefore made statements during her testimony at trial that were inconsistent with her admissions before the grand jury….Given those circumstances, there was no problem with the court’s admission of Donia’s grand jury statement as substantive evidence at trial. The rule is designed for situations like the one the prosecutors faced in this case. 

-CM