The Prior Inconsistent Statement Project, Part 2

In my post yesterday, I identified 14 states that clearly define as “nonhearsay” all prior inconsistent statements, including those not given subject to the penalty of perjury: (1) Alaska; (2) Arizona; (3)  California; (4) Colorado; (5) Delaware; (6) Georgia; (7) Kansas; (8) Kentucky; (9) Montana; (10) Nevada; (11) Rhode Island; (12) South Carolina; (13) Utah; and (14) Wisconsin. This position is inconsistent with Federal Rule of Evidence 801(d)(1)(A), which 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….

In other words, under the Federal Rule, a prior inconsistent statement is only nonhearsay if it “was given under the penalty of perjury….” Moreover, the Advisory Committee’s Note to Federal Rule of Evidence 801(d)(1)(A) states that

It would appear that some of the opposition to this Rule is based on a concern that a person could be convicted solely upon evidence admissible under this Rule. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate

So, under the Federal Rule, (1) a prior inconsistent statement not given under penalty of perjury is hearsay and cannot, by itself, be sufficient to prove guilt beyond a reasonable doubt; (2) a prior inconsistent statement given under the penalty of perjury is nonhearsay and could, by itself, be sufficient to prove guilt beyond a reasonable doubt, but “[f]actual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate.”

Let’s now turn to the 14 outlier states. Have those states spoken about whether a prior inconsistent statement not given under penalty of perjury can be sufficient to prove guilt beyond a reasonable doubt?

Alaska: Brower v. State, 728 P.2d 645, 648 (Alaska.App. 1986): “J.L. totally recanted his descriptions of the incidents which had given rise to the sexual assault charges. The state successfully impeached J.L. with his grand jury testimony.” The Court of Appeals of Alaska agreed  with United States v. Orrico, 599 F.2d 113, 118 (6th Cir. 1979), that “[i]t is doubtful…that in any but the most unusual case, a prior inconsistent statement alone will suffice to support a conviction since it is unlikely that a reasonable juror could be convinced beyond a reasonable doubt by such evidence alone. Insufficient

Arizona: State v. Cruz, 627 P.2d 689 (Ariz. 1981): “Further, the state argues that since Viviana Cruz testified and denied having told Rosemary Santana that appellant made such a statement, Viviana Cruz was properly impeached by showing prior inconsistent statements, which were not hearsay under 17A A.R.S., Rules of Evidence, rule 801(d)(1)(A)….Although Rosemary’s testimony is classic hearsay under traditional analysis and falls within the definition of hearsay contained in rule 801(c), subsection (d) (1)(A) creates a broad exception to the hearsay rule for prior inconsistent statements….Even though an out-of-court statement may be used to cast doubt on a witness’ credibility, when it contains the dual purpose of tending to prove a defendant’s guilt, it should not be admitted.” Insufficient (not even admissible)

California: In re Miguel L., 649 P.2d 703 (Cal. 1982): “The prosecution’s case against appellant was based solely on the repudiated extrajudicial accusations made by a self-declared accomplice, Arnaldo G….’An extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.'” Insufficient

Colorado: From 4 Jones on Evidence § 26:32.50:

Montoya v. People, 740 P.2d 992 (Colo. 1987). The court affirmed defendant’s sexual assault conviction despite the apparent absence of any substantive evidence other than a thirteen year-old’s prior inconsistent statement describing the assault, her sister’s prior inconsistent statement circumstantially corroborating the thirteen-year old’s, and their mother’s prior inconsistent statement that the defendant confessed his guilt to her. (By the time of the trial, the mother had married the defendant.) The court did not explicitly discuss whether such statements, without more, sufficed to convict; the focus was on whether such statements could be admitted as substantive evidence.

Might be sufficient.

Delaware: (somewhat) In Acosta v. State, 417 A.2d 373 (Del. 1980), the Supreme Court of Delaware found that a prior inconsistent statement repudiated by the declarant at trial can be sufficient to prove reasonable doubt but that the judge must give a cautionary jury instruction: 

We do not feel we, in our present appellate role, should attempt to formulate the precise instruction language. But the instruction could advise the jury that a statute permits evidence of such out-of-court statements, whether consistent or inconsistent with the in-court testimony, that caution must be exercised when a conflict exists, that the jury should be particularly careful when there is no evidence to corroborate the inconsistent out-of-court statement, but that the jury can convict on such statement if it is satisfied beyond a reasonable doubt it is true.

Might be sufficient, but there must be a cautionary jury instruction.

Georgia: ????

Kansas: State v. Coppage, 124 P.3d 511, 515 (Kan.App. 2005): “T.S.’s recantation of her prior statements to the police made her a “turncoat witness” for the State. In dismissing the charge against Coppage, the trial court expressed a belief that the prior inconsistent statements of a turncoat witness cannot be used as substantive evidence to prove the elements of the crime. This is contrary to established Kansas law….Had the trial court not dismissed the case, the jury would have been permitted to consider T.S.’s prior inconsistent statements to the police as substantive evidence in determining whether Coppage was guilty of the charge. Although T.S.’s recantation provided conflicting evidence for the jury to weigh, this fact alone would not have barred the State from obtaining a conviction against Coppage.” (but there was other evidence of guilt)

State v. Aguirre, 245 P.3d 1, 11 (Kan.App. 2011): “When a witness recants her testimony, the State may present the witness’ prior inconsistent statements to establish the charged offenses. That is what happened here. While the inconsistent statements must be weighed by the jury, the prior statements may be used to support a conviction.” Might be sufficient

Kentucky: ????

Montana: State v. White Water, 634 P.2d 636, 639 (Mont. 1981): “The sole issue on appeal is whether in a criminal case an alleged prior inconsistent statement should be submitted to the jury for consideration as substantive evidence of an essential element of the charged crime where the accuracy of that statement is repudiated at trial….We believe, furthermore, that a conviction supported only by a prior inconsistent statement should not be allowed to stand.” Insufficient

Nevada: ????

Rhode Island: The Supreme Court of Rhode Island addressed, but did not resolve this issue in both State v. Espinal, 943 A.2d 1052 (R.I. 2008), and State v. Ros, 973 A.2d 1148 (R.I. 2009), finding that other evidence supported the subject convictions. That said, the Advisory Committee’s Note to Rhode Island Rule of Evidence 801(d)(1)(A) states that

It is important to distinguish between the substantive admissibility of prior inconsistent statements and their sufficiency (or weight). For example, even though admissible substantively, a prior inconsistent statement may not be sufficient in itself to sustain a conviction. Because of the elevated burden of proof in criminal cases, a trial court may properly direct a verdict of acquittal where a prior inconsistent statement is the only source of support for the central allegations of the charge….The important point is not to confuse the decision to admit such statements substantively with their sufficiency to establish the point for which they are offered.” R.I. R. Evid. 801, Advisory Committee’s Note (citing United States v. Orrico, 599 F.2d 113 (6th Cir.1979) and State v. White Water, 634 P.2d 636 (Mont.1981)). 

Likely insufficient

South Carolina: ????

Utah: State v. Ramsey, 782 P.2d 480, 484 (Utah 1989): “The boy testified at trial that his father had not made him lie on top of the girl, as alleged in count I….Other cases have…held that uncorroborated, unsworn hearsay statements alone are insufficient evidence to convict when later repudiated at trial….These cases are consistent with Utah law which holds that uncorroborated evidence is insufficient, by itself, to support a verdict in a civil case….In sum, a conviction that is based entirely on a single, uncorroborated hearsay out-of-court statement that is denied by the declarant in court under oath cannot stand.” Insufficient

Wisconsin: State v. Sexton, 339 N.W.2d 367 (Wis.App. 1983) (unpublished): “The only evidence that Sexton operated a motor vehicle was the unsworn and contradicted prior statements of two witnesses….Unsworn pretrial witness statements, standing alone, do not prove guilt beyond a reasonable doubt.” Insufficient