You can impeach with prior inconsistent statements, even if witness does not remember

Rick Kittel won in State v. Stinson, No. 100,361 (Kan. App. March 26, 2010), obtaining a new trial in a Wyandotte County agg robbery/agg battery prosecution. The COA noted that the complaining witness' credibility was key to this case. The trial judge held in one instance that because the witness entirely denied making the a prior statement, defense counsel could not impeach with a prior inconsistent statement; in another instance, the trial judge refused to allow defense counsel to attempt to refresh the witness' recollection by showing him the prior statements when the witness indicated that he did not remember making the statement. The COA disagreed:

Here, when [the witness] could not remember his previous statement to the police and his specific testimony at the preliminary hearing, it was appropriate for defense counsel to utilize the witness' prior statement and his prior testimony in an attempt to refresh his memory. Normally, it is within the trial court's discretion to determine whether memoranda or other items may be used to refresh a witness' recollection. In this case, however, the trial court erroneously determined that Harris had to deny making the statement before the prior statement could be introduced to refresh his recollection.

. . . .

In at least one of the instances where he was attempting to introduce Harris' previous statements to refresh Harris' recollection, Stinson also requested to introduce them as prior inconsistent statements. Further, the trial court treated all of Stinson's three attempts to introduce Harris' previous statements as if he was trying to introduce prior inconsistent statements for impeachment purposes. Nevertheless, the trial court determined that because Harris had not denied making his previous statements but had only been unable to recall making them, Stinson could not introduce the statements for impeachment purposes. The trial court's determination is not in accord with the statutory and case law regarding the admissibility of prior inconsistent statements to impeach a witness who testifies at trial.

When Stinson attempted to question [the witness] about his previous inconsistent statements, the trial court improperly excluded such statements on the basis that Harris did not recall making them. Such a rule is contradictory to statutory and case law. Our Supreme Court has stated that "[w]here an impeaching statement is written, and the witness, although admitting that he gave a statement, cannot remember the contents thereof or denies the same, the statement itself or at least the impeaching portion thereof should be admitted into evidence." State v. Schlicher, 230 Kan. 482, Syl. ¶ 4, 639 P.2d 467 (1982). . . . Moreover, within the discretion of the court, a cross-examiner may inquire into collateral matters when the inquiry is not barred by any specific rule. . . . Because a defendant in a criminal case has a right to confront the State's witnesses under the Sixth Amendment to the United States Constitution, the defendant must be given an effective opportunity to cross-examine those witnesses. Here, the trial court's decision to exclude [the witness'] prior inconsistent statements was an abuse of discretion. Moreover, the trial court's actions prejudiced Stinson when it precluded him from pointing out the inconsistencies, attempted to be elicited and/or proffered during cross-examination, between [the witness'] trial testimony and his previous sworn testimony and his written statement.

A lot of good language for you evidence geeks. (You know who you are.)

[Update: the state did not file a PR and the mandate issued on April 29, 2010.]