Wednesday, April 02, 2008

Can prior inconsistent statement be used as substantive evidence?

I saw this entry over at Appellate Review noting a split of authority on whether prior inconsistent statements can be used as substantive evidence. This issue comes up periodically in Kansas and I even saw it just in the last few weeks on some discussion boards.

The issue often comes up when you have a recanting witness. Witness A tells police that client committed offense. At trial, A recants and says client did not do it. If there is no other substantive evidence, should client be acquitted?

Kansas law right now says prior inconsistent statements can be substantive evidence and are sufficient to support conviction. See State v. Davis, 236 Kan. 538, 540-41, 694 P.2d 418 (1985); State v. Fisher, 222 Kan. 76, 82, 563 P.2d 1012 (1977). But in light of the Confrontation Clause reformation of the last 5 years, I wonder if this law is not suspect. And in any case, many other jurisdictions don't allow prior inconsistent statements as substantive evidence.

So if you have a case where the state is using such statements, be sure to object, ask for a limiting instruction, and raise the issue on appeal.

2 comments:

Klerk said...

Just wanted to say that I appreciated the link.

As to the meat of your post, I doubt that the confrontation clause shift of the last few years is an issue -- the statement can only come in if the witness is testifying (and hence can be confronted...)

Glad I found your blog though, look forward to reading more.

Randall Hodgkinson said...

I don't disagree with your analysis. But when I read Crawford and its progeny, it seems to reinforce the idea that the Confrontation Clause is supposed to protect defendants against convictions based on unsworn, out-of-court statements. And in these situations, the only testimony in court and under oath says "He didn't do it." It's fine to impeach a witness, but when the state gets a conviction based entirely on the unsword out-of-court statements, it seems to run somewhat contrary at least to the spirit of Crawford.