Ninth Circuit Finds Feigned Memory Loss Can Trigger Hearsay Exclusion for Prior Inconsistent Statements

Federal Rule of Evidence 801(d)(1)(A) provides an exclusion to the rule against hearsay for:

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….

So, does this hearsay exclusion for prior inconsistent statements cover a case in which the court concludes that a witness is making a dubious claim of memory loss at trial? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Shuemake, 2024 WL 5218473 (9th Cir. 2024).

In Shuemake, Joshua Shuamake was convicted of obstruction of justice. Shuemake’s friend

[Luke] Ulavale told Agent McCann—and later testified under oath before the grand jury—that Shuemake asked Ulavale to lend him a gun. Ulavale also testified to the grand jury that Shuemake approached him with the “Dale Story” and encouraged Ulavale to lie to the FBI. Ulavale explained he met with Shuemake the night before his interview with McCann. At that meeting, Shuemake tried to dissuade Ulavale from going to the interview and encouraged him to “remember what [they] discussed about the gun.”

But Ulavale’s newfound honesty was fleeting. Despite being a government witness, Ulavale did not appear on the day of his testimony, and FBI agents had to escort him to the courthouse. The government received permission to treat Ulavale as a hostile witness before calling him to the stand.

At Shuemake’s trial, Ulavale claimed memory loss regarding the events he relayed in his grand jury testimony. Based on finding that Ulavale was feigning ignorance, the trial judge deemed his testimony admissible under Rule 801(d)(1)(A). In affirming this decision on appeal, the Ninth Circuit ruled that

The trial court judge has “a high degree of flexibility in deciding the exact point at which a prior statement is sufficiently inconsistent with a witness’s trial testimony to permit its use in evidence.”…As leading treatises have pointed out, an “inconsistent statement” can include vague or evasive answers, claims of memory loss, and explicit refusals to answer….The Advisory Committee Notes to Rule 801(d)(1)(A), quoting observations about California’s similar provision, state that admitting these statements guards against the turncoat witness who changes his story on the stand and deprives the party calling him of essential evidence….

The “ultimate test is whether one could reasonably maintain that both the witness’ testimony and the witness’ prior statement were equally truthful when uttered.”…“It would seem strange…to assert that a witness can avoid introduction of testimony from a prior proceeding that is inconsistent with his trial testimony…by simply asserting lack of memory of the facts to which the prior testimony related.”…Simply put, a witness cannot have it both ways: a witness cannot make a sworn statement and then attempt to wiggle out from it by refusing to answer or falsely asserting he cannot recall it.

Our court has not delineated the precise boundaries of Rule 801(d)(1)(A), but we have suggested that claims of memory loss may conflict with earlier testimony—at least when coupled with somewhat varying testimony on the stand….

We affirm these prior decisions and are aligned with our sister circuits in holding that a district court may find that dubious claims of memory loss satisfy Rule 801(d)(1)(A)’s inconsistency requirement. To be clear, we do not hold that a court can admit earlier sworn testimony as a prior inconsistent statement merely because a witness asserts that he cannot recall that prior statement. After all, a witness genuinely may not remember his earlier testimony; in that case, a lawyer can rely on other evidentiary rules such as refreshing the witness’ recollection (Rule 612) or using the recorded recollection exception to the hearsay rule (Rule 803(5)). Under the prior inconsistent statement rule, the dispositive inquiry is whether both the trial testimony and the prior testimony could be equally truthful when asserted. In making this assessment, trial courts can consider various factors—such as (i) inexplicable or questionable explanations for the lack of recollection, (ii) vague and evasive responses suggesting a refusal to answer truthfully, and (iii) potentially conflicting testimony—as signs that a witness is feigning memory loss. Courts must engage in this fact-intensive inquiry to smoke out a witness’ attempt to walk away from prior sworn testimony by asserting a lack of memory.

-CM