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Prior Inconsistent Statement

The difference between federal and state practice centers around the extent to which a prior inconsistent statement of a non-party1 can be used. More particularly, the issue is whether the statement can be used only for impeachment purposes, or also as evidence of the truth of the matter contained in this statement, i.e., as substantive evidence. While it is often said that the distinction between the admissibility of evidence for the limited purpose of impeachment as opposed to the broader basis as substantive evidence is often of little practical import (the thinking being that, despite any limiting instructions from the judge, once the jury hears certain testimony they are going to use it for whatever purposes they deem to be appropriate). There do remain instances where the distinction between using evidence for substantive or impeachment purposes is significant for reasons beyond the purely academic, and indeed where it may determine the outcome of the chase. For example, consider the following hypothetical situation.

Plaintiff and defendant are involved in an intersection collision where the sole issue is which party had the green light. Unfortunately, the plaintiff is so severely injured in the accident that he remains in a vegetative statement and is incapable of offering any information as to which party had the right-of-way. Much to the plaintiff's good fortune, however, there was a single witness to the accident, a pedestrian standing on the corner of the intersection, and that witness has provided a tape recorded statement to the defendant's insurance carrier in

If the person making the prior inconsistent statement is a party, one never gets into this issue because statements made by a party constitute admissions and, therefore, for entirely separate reasons they are always admissible for both impeachment and substantive purposes. which he (the witness) indicates that the plaintiff had the green light. The case is now called to trial, and the plaintiff calls as his one and only liability witness the individual who was standing on the corner. To the great surprise of the plaintiff's lawyer the witness gets on the witness stand and says that the defendant had the green light. Immediately the plaintiff's lawyer confronts the witness with the prior inconsistent statement. The witness acknowledges having made the prior statement, but remains steadfast in his testimony that the defendant had the green light. The plaintiff has no other witness to call on liability.

If the prior inconsistent statement is admissible only for impeachment purposes, i.e., to attack the veracity of the witness, the plaintiff will be non-suited because he has no affirmative evidence that the plaintiff had the green light. If, on the other hand, the prior inconsistent statement comes in not only for impeachment purposes, but also as evidence of the truth of the matter contained therein, i.e., that the plaintiff had the green light, then the plaintiff gets to the jury. What is the proper ruling for the court to make concerning the use of the prior statement?

In federal court, under Rule 801(d)(1), the prior statement, much to plaintiff's dismay, comes in only for impeachment purposes. The rule indicates:

ARTICLE VIII. HEARSAY

RULE 801. DEFINITIONS

The following definitions apply under this article:

(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 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.

Note that the Rule requires the prior statement to be given under oath.

Since this statement was not made under oath, it cannot come into the truth of the matter asserted, and plaintiff's case will be dismissed.

By contrast, under the law of Pennsylvania, this prior inconsistent statement would come in as substantive evidence. The leading cases in Pennsylvania establishing this principle are Commonwealth v. Brady, 507 A.2d 66 (Supreme 1986), and Commonwealth v. Lively, 610 A.2d 7 (Supreme 1992). In Brady, the Pennsylvania Supreme Court departed from the traditional rule that prior inconsistent statements of non-parties were admissible only for impeachment purposes and held that such statement could be used for the truth of the matter asserted. The rationale for departing from the old rule was that "the hearsay concerns [underlying the traditional rule] are virtually non-existent where the out-of-court declarant is a witness in a judicial proceeding." Brady at page 70.

Brady dealt with a tape-recorded statement made by a witness who later recanted that testimony at trial. Brady did not require the Supreme Court to consider whether other prior inconsistent statements, e.g., those which are oral or written, were also admissible for the truth of the matter contained therein. Resolution of these issues and, thus, refinement of the Brady rule was left to the Lively case.

In Lively, the court specifically considered three different types of prior statements --­one under oath, one oral, and one contained in a memo prepared by someone other than the declarant -- the court adopted the following bright line rule: "Any prior statement which was either given under oath, tape recorded, or contained in a writing signed or otherwise adopted by the declarant, is admissible for impeachment or substantive purposes. If, however, the prior statement is merely an oral declaration made to, or overheard by another person, even in Pennsylvania, it will be admissible only for impeachment purposes."

Thus, in the example above, the statement of the witness is only admissible for impeachment purposes in federal court, whereas in state court it comes in for both impeachment and substantive purposes. However, even under Pennsylvania practice, the prior statement would be admissible only for impeachment purposes if it was merely an oral declaration, i.e., if the witness orally stated to a friend that the plaintiff had the green light, the plaintiff's counsel could call the friend to the witness stand and have them relate the witness's prior declaration but that prior declaration would only be admissible for impeachment purposes.

II. VICARIOUS ADMISSION

Vicarious admissions refer to statements made by an employee. The traditional common law rule held was rather strict and required that __________.

Federal Rule 801(d)(2)(D) liberalizes the common law rule and requires only that the statement be made while the individual was in the course of their employment, and that the statement concerns a matter within the scope of the employment.

(2) Admission by Party-Opponent. The statement is offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Pennsylvania adheres to the more restrictive common law rule and requires not only the agency elements set forth in the federal rule, but also the authority element. The leading case in Pennsylvania discussing the vicarious admission exception is DeFrancesco. In that case, the Superior Court, while reaffirming Pennsylvania's adherence to the strict common law rule, urged the Supreme Court to adopt a more liberal federal rule. Unfortunately, we have not had a decision from the Pennsylvania Supreme Court on the vicarious admission issue for many, many years.

A 1992 Superior Court case, Ligon v. Middlesex School District, provides a good illustration of how strictly "agency plus authority" requirement is. In Ligon an individual charged with inspecting fire extinguishers in a local school building suffered serious injuries when he opened a closet and fell several feet down an open elevator shaft. The inspector was unaware that the closet, which used to house a fire extinguisher, had undergone some structural changes since his last visit. In seeking to prove that the school district was negligent for not warning the inspector of the changes that had been made in the building since his last visit, the plaintiff's attorney called the school district's business manager to the witness stand. The business manager indicated that, shortly before the day of plaintiff's accident, he (the business manager) had a conversation with the superintendent of buildings and grounds in which they discussed the fact that the plaintiff would be around shortly to inspect the fire extinguishers in the district. Plaintiff's counsel then attempted to ask the business manager whether the superintendent of buildings and grounds made any statements about warnings to be given to the plaintiff. If permitted to answer, the business manager would have quoted the superintendent of building and grounds as saying that he "might have to show him (the inspector) around because they (the extinguishers) were in different areas." The school district objected to the statement of the superintendent being admitted as an admission of the school district. The Superior Court agreed noting that there was no evidence that the superintendent of buildings and grounds was authorized to speak for the school district.

The Ligon decision is somewhat surprising and it makes one wonder who had the authority to speak for the school district on matters such as a structural change in a building if not the superintendent of buildings and grounds? In that sense, Ligon has to represent the "outer limits" of the application of a vicarious admission rule in Pennsylvania. (A close reading of Ligon may lead one to suspect that if a more thorough foundation had been provided concerning the duties of the superintendent of buildings and grounds, the statement may have been admitted, but that is speculation.)

III. BUSINESS RECORDS EXCEPTION

The federal rule and state practice have similar requirements for authenticating business records, i.e., proving that the records do indeed meet the definition of a "business record." In that regard, both jurisdictions require that, in the absence of a stipulation to authenticity, a foundation must be provided indicating that the record is compiled at or about the time an event occurred; that it is compiled by a person with knowledge; and that such records are kept in the regular course of business.

Where the two jurisdictions differ, however, is over the question of what information contained within a business record is admissible. In federal court, opinions and diagnoses contained in business records are admissible for the truth of the matter asserted therein. Thus, in federal court once having qualified the document as a business records, for example, the diagnosis of a physician can be read into evidence and admitted to prove the truth of the matter asserted without the need of calling the doctor and subjecting him to cross examination.

RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .

(6) Records of Regularly Conducted Activity. A memorandum, report,

record, or data compilation in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness. . . .

Pennsylvania follows a more strict view and essentially holds that only factual information contained in business records is admissible. Generally speaking, opinions and diagnoses cannot be proven or admitted by merely quoting the record, but instead the person forming those impressions must be called to the witness stand and be subject to cross-examination. In the medical context, therefore, there are many cases in Pennsylvania indicating that a hospital record (which is admittedly a business record) can be quoted in order to prove such factual matters as date and time of treatment; complaints voiced by the patient; treatment administered to the patient; etc. (cite)___________, but an opinion concerning the patient's condition or diagnosis must come from a live witness. For example, those opinions or impressions deemed inadmissible in Pennsylvania include:

IV. 802(18) - LEARNED TREATISE

As with the business records exception, federal rule and state practice are in harmony with respect to the elements of authenticating a learned treatise, i.e., proving that it is an authoritative work in a particular field. To establish authenticity both jurisdictions require that some witness takes a witness stand and acknowledge that the treatise in question is recognized as authoritative. Furthermore, both jurisdictions agree that the person authenticating the tests can be different from the person who is confronted with it. (cites). In other words, a defense witness can be confronted with a learned treatise even if he does not recognize it as authoritative so long as some witness who has proceeded him to the witness stand (either another defense witness or even a witness called in the plaintiff's case) has vouched for the text's authoritativeness. (cites). Lastly, the jurisdictions are in agreement that, in order to authenticate a treatise, a witness need not acknowledge his familiarity with a particular chapter in the book, but instead it is only necessary that he concede the general authoritativeness of the text in general. Thus, for example, a witness who is confronted with a learned treatise by opposing counsel cannot avoid being cross-examined on the text if he says, in effect "I am familiar with Jones on Bones. It is a well-accepted book of treatise in the field of orthopedics, but I am not familiar with chapter 31." His acknowledgement that the book is generally authoritative is sufficient to authenticate it and, therefore, permit its use to the extent consistent with the jurisdiction's practice.

The extent to which an authenticated learned treatise can be used, however, differs under the federal rule versus the state practice in two important effects. First, when a learned treatise is used in federal court, the text material referred to comes in as substantive evidence, i.e., as proof of the matter asserted therein.

(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

In state practice, however, the text only comes in for impeachment purposes. Second, under Pennsylvania law, a learned treatise can only be used on cross-examination for the purpose of discrediting a witness, for as under federal rule 803(18) the treatise can also be used on direct examination if the expert indicates that he specifically relied upon it forming his opinion in this particular case. Thus, in theory, an expert in federal court could sit up on the witness stand and quote from a textbook to the extent he relied upon it on forming his opinion. In Pennsylvania, on the other hand, permits no such use on direct examination. At best, Pennsylvania would permit some generic reference to the literature in a field, but it would not sanction the reading of a particular passage from a treatise.

The primary case in Pennsylvania establishing the law in the use of a learned treatise is Magic v. Cincinnati Machine. (go on to summarize case and holding).

V. IMPEACHMENT BY PRIOR CONVICTIONS

Federal Rule 609 provides that prior conviction can be used to impeach a witness in a civil case if the conviction is not more than 10 years old, and the conviction either related to a crime punishable by at least one year imprisonment or a crime involving dishonesty. If the conviction is more than 10 years old, it can only be utilized if the court determines its probative value outweighs its prejudiced effect.

Under Pennsylvania practice, the prior conviction likewise must have occurred within the past 10 years, but Pennsylvania limits impeachment to those crimes which involve dishonesty. Thus, if the crime was punishable by imprisonment of more than one year, but it was not a crime involving dishonesty, the conviction could not be utilized to impeach a witness in Pennsylvania, but it could be utilized in federal court.

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