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26.3 Prior Inconsistent Statements
26.3.1 Impeachment By Unsworn Prior Inconsistent Statements
26.3.2 Distinguishing Between Sworn And Unsworn Prior Inconsistent Statements
26.3.3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda
26.3.4 Coerced Or Involuntary Statements Not Admissible For Impeachment
26.3.5 Prior Inconsistent Statements: Federal Circuit Model Instruction and Notes
26.3.6 Prior Inconsistent Statements: Requirement Of Corroboration By More Than Flight Evidence
26.3.7 Prior Inconsistent Statements:
Impeachment Of Party’s Own Witness
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26.3.1 Impeachment By Unsworn Prior Inconsistent Statements
RATIONALE: Even if there is no dispute that a prior inconsistent statement was made, the jury may need specific instruction in order to understand that a prior inconsistent statement, not given under oath, may be used for impeachment, but not as substantive evidence. Without specific instruction as to the limited purpose of the prior inconsistent statement, the jury will have a natural tendency to consider it as substantive evidence.
POINTS AND AUTHORITIES: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 32 [Impeachment By Prior Inconsistent Statements, Not Under Oath] (1988).
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].
CAVEAT: The sample instructions below deal with the situation in which there is no dispute about whether the witness made the earlier statement. If he denies making it, the jury must be instructed to decide if he made the statement. (Ibid.)
RESEARCH NOTES:
See also Manual On Recurring Problems In Criminal Trials [7a. Receipt Of Expert Testimony: Prior Consistent And Inconsistent Statements].
See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 26.3.5 [Prior Inconsistent Statements: Federal Model Instruction and Notes Circuit].
SAMPLE INSTRUCTION # 1:
You will recall that _______ testified during the trial [description, if needed]. You will also recall that it was brought out that before this trial he made statements about this matter. These earlier statements were brought to your attention to help you decide if you believe _________'s testimony. You cannot use these earlier statements as evidence in this case. However, if ________ said something different about this matter earlier, and the two stories were conflicting, then there may be reason for you to doubt ________'s testimony here. That's up to you to decide.
[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 32 [Impeachment By Prior Inconsistent Statements, Not Under Oath] (1988).]
SAMPLE INSTRUCTION # 2:
You have heard evidence that before the trial [a] witness[es] made [a] statement[s] that may be inconsistent with the witness[es]’s testimony here in court. If you find that it is inconsistent, you may consider the earlier statement [only] in deciding the truthfulness and accuracy of that witness’s testimony in this trial. [You may not use it as evidence of the truth of the matters contained in that prior statement.]
[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.09 [Prior Inconsistent Statements-Witnesses] (1999).]
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26.3.2 Distinguishing Between Sworn And Unsworn Prior Inconsistent Statements
RATIONALE: When testimony has been received as to both inconsistent statements not given under oath and statements given under oath, the jury may need an instruction which differentiates between the two kinds of statements and how they may be used.
POINTS AND AUTHORITIES: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 33 [Impeachment By Prior Inconsistent Statements Under Oath] (1988).
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].
CAVEAT: This instruction is for use only when the prior statement that is inconsistent with statements made at trial is admissible substantively. (E.g., in federal cases, when given under oath at a previous trial, hearing or other proceeding, or in a deposition. See FRE 801(d)(1)(A).)
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [7. Receipt Of Expert Testimony: General Principles].
See also Manual On Recurring Problems In Criminal Trials [7a. Receipt Of Expert Testimony: Prior Consistent And Inconsistent Statements].
See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].
See also generally, FORECITE National™ 305.16.10 [Prior Inconsistent Statements].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 26.3.5 [Prior Inconsistent Statements: Federal Model Instruction and Notes Circuit].
SAMPLE INSTRUCTION # 1:
You will recall that ______ testified in the (government's) (defense) case during the trial. You will also recall that it was brought out that before this trial he made statements concerning the subject matter of this trial. Even though these statements were not made in this courtroom they were made under oath at [e.g.: another trial]. Because of this, you may consider these statements as if they were made at this trial and rely on them as much, or as little, as you think proper.
[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 33 [Impeachment By Prior Inconsistent Statements, Under Oath] (1988).]
SAMPLE INSTRUCTION # 2:
You have heard evidence that before the trial [a] witness[es] made [a] statement[s] that may be inconsistent with the witness[es]’s testimony here in court. If you find that it is inconsistent, you may consider the earlier statement [only] in deciding the truthfulness and accuracy of that witness’s testimony in this trial. [You may not use it as evidence of the truth of the matters contained in that prior statement.] [If that statement was made under oath, you may also consider it as evidence of the truth of the matters contained in that prior statement.]
[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.09 [Prior Inconsistent Statements-Witnesses] (1999).]
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26.3.3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda
RATIONALE: Without a limiting instruction the jury may improperly use evidence obtained in violation of Miranda for purposes other than impeachment.
POINTS AND AUTHORITIES: Harris v. New York (1971) 401 US 222, 226 [91 SCt 643; 28 LEd2d 1] allows an unlawfully obtained statement to be used for impeachment purposes. However, jurors may not consider such statement for other than its impeachment purpose. Therefore, the jury should be instructed to consider such statement(s) for the sole purpose of impeachment. (See People v. District Court for the Second Judicial Dist. (CO 1978) 580 P2d 388; see also Jones v. State (GA 1995) 453 SE2d 716, 718 [jury instructed that un-Mirandized inconsistent statement, voluntarily made, was to be considered only for the purpose of assessing defendant's credibility and not to establish his guilt]; Booker v. State (MS 1976) 326 So2d 791, 793 [defendant is entitled, on request, to have the jury instructed that the un-Mirandized confession, as a prior inconsistent statement, may not be used as proof of guilt but may be considered only in passing on his credibility as a witness]; Pyburn v. State (TN 1976) 539 SW2d 835, 841 [Miranda-tainted statement cannot be introduced for purposes of impeaching accused's credibility unless jury is instructed that statement can only be considered for such purpose and not as evidence of guilt].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].
PRACTICE NOTE: Whether Instruction Must Be Requested. There is a split in authority as to whether a limiting instruction is required sua sponte when Miranda violative statements are offered as evidence. (Hinman v. McCarthy (9th Cir. 1982) 676 F2d 343, 349 [sua sponte only]; see also Duran v. Stagner (N.D. Cal. 1985) 620 FSupp 803, 805; People v. Torrez (CA 1995) 31 CA4th 1084, 1091 [37 CR2d 712] [CALJIC 2.13.1 must be requested but "it may be time for the California Supreme Court to revisit this issue"]; People v. Baker (CA 1990) 220 CA3d 574, 579 [269 CR 475]; People v. Wyatt (CA 1989) 215 CA3d 255, 258 [263 CR 556] [only required if requested]; People v. Duncan (CA 1988) 204 CA3d 613, 619-21 [251 CR 355] [sua sponte duty]; Saucier v. State (FL 1986) 491 So2d 1282, 1283 [failure to instruct regarding statements made in violation of Miranda as error].)
CAVEAT: If only the standard instructions regarding inconsistent statements and admissions are given then the effect of giving these two instructions, without excluding from consideration the illegally obtained statements, would be to inform the jury that such admissions could be considered on the issue of guilt. (See e.g., Duncan, 204 CA3d at 622.)
See FORECITE National™ 26.3.4 [Coerced Or Involuntary Statements Not Admissible for Impeachment].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [7. Receipt Of Expert Testimony: General Principles].
See also Manual On Recurring Problems In Criminal Trials [7a. Receipt Of Expert Testimony: Prior Consistent And Inconsistent Statements].
See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].
See also generally, FORECITE National™ 305.16.10 [Prior Inconsistent Statements].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 26.3.5 [Prior Inconsistent Statements: Federal Model Instruction and Notes Circuit].
SAMPLE INSTRUCTION:
You will recall that the defendant, ________, testified during the trial on his own behalf. You will also recall that it was brought out that he was questioned at an earlier time and made certain statements. These earlier statements by _______ were brought to your attention only to help you decide if you believe what he has testified to here in court. If he said something different earlier, and the two stories were conflicting, then it will be up to you to decide if what he said here in court was true. You should not, however, consider what was said earlier as proof or evidence of the defendant's guilt. The government must use other evidence to prove, beyond a reasonable doubt, that the defendant committed the crime.
[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 42 [Defendant’s Testimony: Impeachment By Otherwise Inadmissible Statement (Harris v. New York)] (1988).]
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26.3.4 Coerced Or Involuntary Statements Not Admissible for Impeachment
PRACTICE NOTE: While un-Mirandized statements are admissible for the purpose of impeaching the defendant's reliability (Harris v. New York (1971) 401 US 222, 226 [91 SCt 643; 28 LEd2d 1]), coerced statements are inadmissible for all purposes. (Michigan v. Harvey (1990) 494 US 344, 350-51 [110 SCt 1176;108 LEd2d 293]; People v. Bey (CA 1993) 21 CA4th 1623, 1627-28 [27 CR2d 28].)
In People v. Peevey (CA 1998) 17 C4th 1184, 1193 [73 CR2d 865] the California Supreme Court held that statements that are a result of the police violating Miranda may not be used in the People's case in chief, but may be used to impeach any testimony given by the defendant. The court rejected the claim that a deliberate violation precludes use of the statement to impeach, but did not reach the issue of whether the Miranda violation rendered the statement coerced. The court also failed to decide if the result would be different if the police had a policy of violating Miranda.
See also FORECITE National™ 26.3.3 [Prior Inconsistent Statement Of Defendant In Violation Of Miranda].
See also FORECITE National™ 28.4 [Slight Coercion Can Induce Voluntary Statement].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [7. Receipt Of Expert Testimony: General Principles].
See also Manual On Recurring Problems In Criminal Trials [7a. Receipt Of Expert Testimony: Prior Consistent And Inconsistent Statements].
See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].
See also generally, FORECITE National™ 305.16.10 [Prior Inconsistent Statements].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 26.3.5 [Prior Inconsistent Statements: Federal Model Instruction and Notes Circuit].
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26.3.5 Prior Inconsistent Statements: Federal Circuit Model Instructions and Notes
RELATED FEDERAL MODEL INSTRUCTIONS:
See 1st Circuit Pattern Jury Instructions - Criminal 2.02.
See also 1st Circuit Pattern Jury Instructions - Criminal 3.07.
See also 5th Circuit Pattern Jury Instructions - Criminal 1.10.
See also 6th Circuit Pattern Jury Instructions - Criminal 7.04.
See also 6th Circuit Pattern Jury Instructions - Criminal 7.18.
See also 7th Circuit Federal Jury Instructions - Criminal 3.09.
See also 7th Circuit Federal Jury Instructions - Criminal 3.10.
See also 8th Circuit Model Jury Instructions - Criminal 1.03.
See also 8th Circuit Model Jury Instructions - Criminal 3.03.
See also 9th Circuit Model Jury Instructions - Criminal 1.5.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.1.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.2.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.3.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.4.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.5.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.6.
See also 11th Circuit Pattern Jury Instructions - Criminal TI 5.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 18.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 19.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 32.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 33.
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26.3.6 Prior Inconsistent Statements: Requirement Of Corroboration By More Than Flight Evidence
PRACTICE NOTE: State v. Giant (MT 2001) 37 P3d 49, 59, held that "evidence of flight without any other evidence can be as consistent with innocence as it is with guilt." Therefore, such evidence, by itself, cannot support a conviction. (Ibid.) It follows that flight evidence cannot provide the requisite corroboration for admission of a prior inconsistent statement. "Holding that two forms of evidence, each unreliable in its own right, nonetheless, when taken together, are sufficient to prove guilt beyond a reasonable doubt, accords the sum of the evidence a characteristic trustworthiness that neither of its constituent parts possesses." (Giant, 37 P3rd at 60.) Put more simply, "zero and zero cannot make one." (Id. at 60.)
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26.3.7 Prior Inconsistent Statements: Impeachment Of Party’s Own Witness
PRACTICE NOTE: In some jurisdictions, at common law, the "voucher rule" provided that the party calling a witness vouched for the credibility and veracity of that witness's testimony. The party calling the witness, pursuant to the voucher rule, could not impeach or discredit its witness by offering proof of prior contradictory statements. If the calling party became disappointed by the witness's testimony or if the evidence adduced from the witness was not beneficial to the calling party, he or she could not impeach the witness without a showing of something more. If the witness's testimony at trial was contrary to prior statements made to the calling party and the statements involved facts material to the case, then the calling party could impeach its own witness upon a showing that the party was surprised by the witness's testimony.
Maryland recently abandoned the voucher rule. Walker v. State (MD, 2003) 818 A2d 1078 held that a party need not show that it was surprised by its own witness’s unfavorable testimony in order to impeach the witness with his or her otherwise inadmissible prior inconsistent statement.