The Prior Inconsistent Statement Project, Part 3

In yesterday’s post, I looked at the jurisdictions that allow for the substantive admission of prior inconsistent statements not given subject to the penalty of perjury and (seemingly) without any additional requirements. In that post, I concluded that several of those jurisdictions nonetheless hold that such a prior inconsistent statement, by itself, is insufficient to sustain a conviction.

In today’s post, I will look at the hybrid jurisdictions, which allow for the substantive admission of prior inconsistent statements not given subject to the penalty of perjury, but with additional requirements. How many of these jurisdictions hold that such a prior inconsistent statement, by itself, is insufficient to sustain a conviction? 

Connecticut: State v. Newsome, 682 A.2d 972 (Conn. 1996): “As we previously noted, the sufficiency of a prior inconsistent statement to support a conviction depends on its reliability, which is tested by examination of the statement itself and by the totality of the other evidence in the record, including the explanation of the witness who purportedly made the statement. In reviewing the sufficiency of the evidence to support a criminal conviction ‘we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt….'” Likely insufficient because prior inconsistent statement must be examined by the totality of the other evidence on the record.

Louisiana: State v. Allen, 366 So.2d 1308, 1312 (La. 1978): “We thus hold (even more narrowly than some of the authorities cited herein above, for anything more would be dicta in this case) that unobjected to hearsay which is the exclusive evidence of a defendant’s guilt of the crime or an essential element thereof, and where contradicted at trial by the sworn recantation of the out-of-court declarant, is no evidence at all. The instant inquiry thus is a question of law and within our criminal appellate jurisdiction.” Insufficient

Maryland: Belton v. State, 833 A.2d 54, 64 (Md.App. 2003): “We believe that Gibbs has been effectively overruled by the Rule. The jury in this case, as the trier of fact, had the right to reject totally Thomas’s in-trial testimony in favor of his earlier extra-judicial statement. It obviously did so. The earlier identification of appellant as the assailant, if believed, was sufficient to establish beyond a reasonable doubt his agency in the crimes for which he was convicted. We are not prepared to say that no rational trier of fact could have reached such a verdict.” Might be sufficient

Missouri: State v. Pierce, 906 S.W.2d 729, 737 (Mo.App. 1995): “This court agrees with the logic as set forth in the preceding cases. It is this court’s view that a case such as this should be very difficult to prosecute after the prosecutrix has, on the stand, recanted her accusations. Accordingly, the judgment is reversed, and the defendant is ordered discharged.” Insufficient

New Jersey: State v. Mancine, 590 A.2d 1107, 1116 (N.J. 1991):

Both sides describe a parade of horrors that will haunt our law if their position is not adopted. We do not adopt either position in its entirety. Instead, we find that the concerns emerging from the use and testing of prior inconsistent statements shadow concerns in our treatment of recanted or disavowed confessions. Because of the damning nature of such evidence and the specter of illicit coercion, we seek to assure ourselves of the voluntary, reliable nature of such a statement in any given case.

In the confession context, we have stated that a trial court “must determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might determine that the confession is trustworthy.”…As long as the confession is “corroborated by other evidence tending to strengthen it, … the criminal agency (as well as defendant’s connection with the crime) may be proven by the confession itself.”

Likely insufficient because there must be corroborating evidence.

Pennsylvania: Commonwealth v. Brown, 52 A.3d 1139 (Penn. 2012) (conviction affirmed, but prior inconsistent statements by three recanting witnesses were admitted):

Subsequently, however, in Karkaria, our Court explicitly relied on Smith and Farquharson when setting forth the relevant law governing our review of Appellant’s assertion that “the testimony presented to the jury was so unreliable and contradictory that their verdict could only have been arrived at through speculation and conjecture,”…which our Court unambiguously deemed to be a challenge to the sufficiency, and not the weight, of the evidence. After considering the evidence adduced at trial, which consisted of testimony of a single Commonwealth witness about repeated sexual assaults she claimed the defendant had subjected her to, the Court concluded, “in keeping with our standard of review as set forth in Smith and Farquharson, we are compelled to conclude that the evidence presented at trial when carefully reviewed in its entirety, is so unreliable and contradictory that it is incapable of supporting a verdict of guilty, and thus, is insufficient as a matter of law.”…Our Court therefore recognized that, in those extreme situations where witness testimony is so inherently unreliable and contradictory that it makes the jury’s choice to believe that evidence an exercise of pure conjecture, any conviction based on that evidence may be reversed on the grounds of evidentiary insufficiency, since no reasonable jury could rely on such evidence to find all of the essential elements of the crime proven beyond a reasonable doubt. Consequently, Appellant’s present assertion that the prior inconsistent statements of the Commonwealth’s trial witnesses, repudiated at trial, were too unreliable to establish, as a matter of law, his guilt beyond a reasonable doubt is a claim which implicates the sufficiency of the evidence.

Likely insufficient 

Tennessee: State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000): “Citing this Court’s opinion in Johnston v. Cincinnati, N.O. & T.P. Railway Co., 146 Tenn. 135, 240 S.W. 429 (1922), the appellee contends that when the sole witness both affirms and denies that a particular act happened, “it would be mere caprice in a jury upon such evidence to decide [the issue] either way.” We agree with the appellant that if C.S.’s prior statements were the only evidence of the crime committed, then a conviction could not be sustained.” Insufficient