My Public Comment in Strong Opposition to the Proposed Amendment to the Prior Inconsistent Statement Hearsay Exclusion

The Judicial Conference Committee on Rules of Practice and Procedure has proposed an amendment to Federal Rule of Evidence 801(d)(1)(A). Pursuant to this proposed amendment, the hearsay exclusion for prior inconsistent statements would now cover statements not given subject to the penalty of perjury. In other words, imagine that Warren tells the police, “I saw Dan kill Vince.” Then, at trial, Warren testifies, “I did not see Dan kill Vince.” Under the proposed amendment, Warren’s police statement would be admissible to prove the truth of the matter asserted, i.e., that he saw Dan kill Vince. Because this proposed amendment could produce wrongful convictions like the wrongful conviction of Jamar Huggins, I submitted the following public comment on the proposed amendment:

Dear Judicial Conference Committee on Rules of Practice and Procedure,

     I am a law professor, the Blog Editor of EvidenceProf Blog, and the co-host of the Undisclosed Podcast, which covers cases of wrongful conviction. In connection with my podcast, I worked on the case of Jamar Huggins. Mr. Huggins was charged in connection with a 2014 home invasion in South Carolina. Essentially the only evidence against him was a police statement by an alleged accomplice in the crime naming his as one of the perpetrators. When this alleged accomplice took the stand at trial, she testified that Mr. Huggins was not one of the perpetrators of the home invasion. The prosecution then admitted her police statement as a prior inconsistent statement.

     The defense moved for a directed verdict, but the judge denied the motion. Currently, South Carolina is one of only a few states that have a version of Rule 801(d)(1)(A) that provides a hearsay exclusion for statements not given subject to the penalty of perjury. As such, the alleged accomplice’s statement was substantive evidence of Mr. Huggins’s guilt. At the end of Mr. Huggins’s trial, the jury found him guilty. Despite the alleged accomplice subsequently signing an affidavit naming someone else as the other perpetrator of the home invasion, Mr. Huggins has not yet been able to secure his release.

     As a result of the Jamar Huggins case, I write in strong opposition to the proposed amendment to Federal Rule of Evidence 801(d)(1)(A). This amendment would make it easier for prosecutors to secure wrongful convictions against defendants like Jamar Huggins. If a witness tells the police that the defendant committed a crime, that accusation would be admissible against the defendant as substantive evidence of their guilt when that witness is unwilling to stand by their statement at trial. As in the Jamar Huggins case, that prior accusation alone could be enough to secure a conviction, even with the witness testifying to the defendant’s innocence at trial. The possibility of such a wrongful conviction outweighs any utility that could be derived from the rule.

Sincerely,

Colin Miller