The Prior Inconsistent Statement Project

Federal Rule of Evidence 801(d)(1)(A) provides 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….

So, how many states have a similar rule that defines prior inconsistent statements as nonhearsay only when they are given under penalty of perjury? I’m going to start compiling them in this post.

Prior Inconsistent Statements NOT Under Oath INADMISSIBLE: (1) Alabama, (2) Arkansas; (3) Florida; (4) Hawaii; (5) Idaho; (6) Illinois; (7) Indiana; (8) Iowa; (9) Maine; (10) Massachusetts; (11) Michigan; (12) Minnesota; (13) Mississippi; (14) Nebraska; (15) New Hampshire; (16) New Mexico; (17) New York; (18) North Carolina; (19) North Dakota; (20) Ohio; (21) Oklahoma; (22) Oregon; (23) South Dakota; (24) Texas; (25) Vermont; (26) Virginia; (27) Washington; (28) West Virginia; and (29) Wyoming.

Prior Inconsistent Statements NOT Under Oath Possibly Admissible (Hybrid): (1) Connecticut; (2) Louisiana; (3) Maryland; (4) Missouri; (5) New Jersey; (6) Pennsylvania; and (7) Tennessee.

Prior Inconsistent Statements NOT Under Oath Admissible: (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.

Alabama Rule of Evidence 801(d)(1)(A):

Alaska Rule of Evidence 801(d)(1)(A): No

Arizona Rule of Evidence 801(d)(1)(A): No

Arkansas Rule of Evidence 801(d)(1)(i):

A statement is not hearsay if:

(1) Prior Statement By Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a disposition [deposition]….

California: No

Colorado Rule of Evidence 801(d)(1)(A): No

Connecticut: (somewhat):

From State v. Whelan, 513 A.2d 86, 92 (Conn. 1986)

“We, therefore, adopt today a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross examination.”

Delaware Rule of Evidence 801(d)(1)(A): No

Florida Rule of Evidence 90.801(2)(a):

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition….

Georgia Rule of Evidence 801(d)(1)(A): No

Hawaii Rule of Evidence 802.1(1)(A):

The following statements previously made by witnesses who testify at the trial or hearing are not excluded by the hearsay rule:

(1) Inconsistent statement. The declarant is subject to cross-examination concerning the subject matter of the declarant’s statement, the statement is inconsistent with the declarant’s testimony, the statement is offered in compliance with rule 613(b), and the statement was:

(A) Given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition….

Idaho Rule of Evidence 801(d)(1)(A):

A statement is not hearsay if –  

(1)  Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony and was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition….

Illinois Rule of Evidence 801(d)(1)(A)(1):

A statement is not hearsay if

(1) Prior Statement by Witness. In a criminal case, the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(A) inconsistent with the declarant’s testimony at the trial or hearing, and—

(1) was made under oath at a trial, hearing, or other proceeding, or in a deposition….

Indiana Rule of Evidence 801(d)(1)(A):

Notwithstanding Rule 801(c) , a statement  is not  hearsay if:

(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….

Iowa Rule of Evidence 5.801(d)(1)(A):

Kansas Rule of Evidence 6-460(a): No

Kentucky Rule of Evidence 801A(a)(1): No

Louisiana Rule of Evidence 801(d)(1)(A): (somewhat): there must be “additional evidence to corroborate the matter asserted by the prior inconsistent statement.”

Maine Rule of Evidence 801(d)(1)(A):

A statement that meets one of 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….

Maryland Rule of Evidence 5-802.1(a): (somewhat) prior statement must be “given under oath subject to the penalty of perjury,” “reduced to writing and was signed by the declarant,” or “ecorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement.”

(Proposed) Massachusetts Rule of Evidence 801(d)(1) reads as follows: “(d) Statements which are not hearsay. A statement is not hearsay if—(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.”

Michigan Rule of Evidence 801(d)(1)(A): 

Minnesota Rule of Evidence 801(d)(1)(A):

A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition….

Mississippi Rule of Evidence 801(d)(1)(A):

Missouri: (somewhat):

From State v. Jennings, 815 S.W.2d 434, 443 (Mo.App. 1991):

In a criminal case, a witness’ prior inconsistent extrajudicial statements may not be admitted as substantive evidence when the witness at trial denies having made the statements….However, statements a witness admits having made may be admissible under § 491.074 without the declarant’s admitting their truth.

Montana Rule of Evidence 801(d)(1)(A): No

Nebraska Rule of Evidence 27-801(4)(a)(i):

A statement is not hearsay if:

(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition….

Nevada Rule of Evidence 51.035(2)(A): No

New Hampshire Rule of Evidence 801(d)(1)(A):

A statement is not hearsay if –

(1)  Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty or perjury at a trial, hearing, or other proceeding, or in a deposition….

New Jersey Rule of Evidence 803(a)(1): (somewhat) prior statement must be “contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability” or “given under oath subject to the penalty of perjury….”

New Mexico Rule of Evidence 11-801(d)(1)(A)

New York: 

From People v. Raja, 77 A.D.2d 322, 325 (N.Y.A.D. 2nd 1980):

“The less complex method is simply to introduce the earlier statement as a prior inconsistent statement….However, when this procedural route is chosen, the statement may be used solely to impeach the credibility of the witness; it may not be offered as substantive proof of the truth of its contents.”

North Carolina Rules of Evidence: 

Commentary to North Carolina Rule 801(d)(1):

Subdivision (d)(1) of Fed.R.Evid. 801 departs markedly from the common law in North Carolina by excluding from the hearsay ban several statements that come within the common law definition of hearsay. Accordingly, the language of Fed.R.Evid. 801(d), which provides that in certain circumstances prior inconsistent statements, prior consistent statements, and out-of-court identifications are not hearsay, was deleted.

See State v. Minter, 432 S.E.2d 146, 153 (N.C.App. 1993): “see also State v. Cope, 240 N.C. 244, 249, 81 S.E.2d 773, 777 (1954) (prior inconsistent statements admissible for impeachment purposes and not as substantive evidence).”

North Dakota Rule of Evidence 801(d)(1)(A):

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, if offered in a criminal proceeding, was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition….

Ohio Rule of Evidence 801(d)(1)(A):

A statement is not hearsay if:

Oklahoma Rule of Evidence Section 2801(4)(a)(1):

Oregon Rule of Evidence 801(4)(a)(A):

A statement is not hearsay if:

(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

(A) Inconsistent with the testimony of the witness and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition….

Pennsylvania Rule of Evidence 803.1: (somewhat) prior statement must be “under oath subject to the penalty of perjury,” “a writing signed and adopted by the declarant,” or “a verbatim contemporaneous electronic, audiotaped, or videotaped recording of an oral statement.”

Rhode Island Rule of Evidence 801(d)(1)(A): No

South Carolina Rule of Evidence 801(d)(1)(A): No

South Dakota Rule of Evidence 801(d)(1)(A):

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….

Tennessee Rule of Evidence 803(26): (somewhat) prior statement “must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.”

Texas Rule of Evidence 801(d)(1)(A):

Utah Rule of Evidence 801(d)(1)(A): No

Vermont Rule of Evidence 801(d)(1)(A):

A statement is not hearsay if –  

(1) Prior statement by witness.  The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition….

Virginia: 

From Hall v. Commonwealth, 355 S.E.2d 591, 595 (Va. 1997):

Prior inconsistent statements of this kind, however, are inadmissible hearsay if they are offered to prove the truth of their content because they suffer from all of the usual disabilities of hearsay, e.g., they were made out of court, under circumstances which the jury cannot evaluate; the witness was not under oath when they were made; the jury was unable to observe the demeanor of the witness when making them; and the witness was not available for cross-examination when they were made.

Washington Rule of Evidence 801(d)(1)(A):

A statement is not hearsay if–

(1) Prior Statement by Witness. The declarant testifies atthe trial or hearing and is subject to cross examination concerning the statement, and the statement is

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

West Virginia Rule of Evidence 801(d)(1)(A):

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….

Wisconsin Rule of Evidence 908.01(4)(a)(1): No

Wyoming Rule of Evidence 801(d)(1)(A):