John P. Gismondi, Esquire
While there are many bases on which to impeach a witness --- bias, lack of personal knowledge, and contradiction are among the most common --- perhaps none is as potent as the prior inconsistent statement, for there are few things nothing that discredit a witness quite so effectively as showing the jury that he or she has testified two different ways on the same subject.
Powerful as it is when employed as a tool of impeachment, however, even more (benefit) can be derived from the prior inconsistent statement when it is admitted as substantive evidence,i.e. for the truth of the matter asserted therein. This article will discuss when a prior inconsistent statement of a non-party witness can be used in that fashion under Pennsylvania law. (Note: If the prior statement is made by a party to the suit it always comes in for the truth of the matter asserted since it constitutes an admission of a party opponent.)
Before reviewing the applicable law, let's put this issue in context by illustrating the important difference between proof coming in as substantive evidence as opposed to merely for impeachment purposes. Consider the following hypothetical case.
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 state and is incapable of offering any information as to who had the right-of-way. Much to the plaintiff's good fortune, however, there was a witness standing near the intersection. That witness provided a tape-recorded statement to the defendant's insurance company in which he states that the plaintiff had the green light.
At trial the plaintiff calls as his only liability witness the above individual. To the great surprise of the plaintiff's lawyer, the witness now says that the defendant had the green light. Immediately, the plaintiff's lawyer confronts the witness with his prior inconsistent statement. While the witness acknowledges having given the statement, he says that he was mistaken when he talked to the insurance adjuster and that indeed the defendant had the green light. The plaintiff has no other witness to call and rests his case. The defendant moves for a nonsuit on the ground that plaintiff has offered no evidence that defendant ran the red light. The plaintiff responds by citing the content of the prior inconsistent statement.
The issue upon which resolution of the motion rests is whether the prior inconsistent statement is admissible only for impeachment purposes (i.e., to attack the veracity of the witness) or as substantive evidence of the truth of the matter asserted therein (i.e., that plaintiff had the green light). If the statement is admissible only to attack the witness's veracity, then plaintiff has no affirmative evidence that the defendant ran the red light and the non-suit would be granted. Who wins the argument?
The answer is found in Rule 803.1 of the new Pennsylvania Rules of Evidence which states as follows:
Rule 803.1 Hearsay Exceptions; Testimony of Declarant Necessary
The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at trial or hearing and is subject to cross-examination concerning the statement:
(1) Inconsistent Statement of Witness
A statement by declarant that is inconsistent with the declarant's testimony, and (a) was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) is a writing signed by and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement.
The Rule seems to be straight forward enough, but there are some nuances reflected in the case decisions which pre-date the enactment of the Rules, case decisions which are presumably still viable today.
For example, even though a literal application of the Rule would suggest that any prior inconsistent statement is admissible as substantive evidence so long as it is one of the three enumerated types -- under oath, tape recorded, or signed -- that may not necessarily be so. Consider, for example, the holding in Commonwealth v. Grimes, 648 A.2d 538 (Superior 1994).
In Grimes the court was faced with a prior tape recorded statement of a witness in a criminal case. At the time Grimes was decided, the prevailing common law as set forth in the earlier cases of Commonwealth v. Brady, 507 A.2d 668 (1986), and Commonwealth v. Lively, 610 A.2d 7 (1992), was essentially the same as that codified in Rule 803.1, i.e., statements which were either given under oath, tape recorded or signed by the witness were admissible as substantive evidence. Thus, on its face, one would expect the Grimes court to have no trouble in admitting the witness's statement as substantive evidence. However, in this case the court declined to do so citing the fact that at the time the statement was given, the declarant was under the influence of drugs and alcohol.
When read against the backdrop of existing law, Grimes suggests that, in addition to fitting within one of the three enumerated categories, a prior inconsistent statement must also be given under reliable circumstances in order to be admissible as substantive evidence.
In our hypothetical above, the witness's statement to the insurance adjuster should come in for the truth of the matter asserted, e.g., that the light was green for the plaintiff, since the statement is tape recorded and there is no suggestion of unreliability. If so, the defendant's request for a non suit would be denied.
Consider the result, however, if in our hypothetical the statement of the witness, rather than being tape recorded, was contained within an accident report written by the investigating police officer. Assume further that the report was written the day after the accident but was based on handwritten notes which the investigating officer took at the scene. Would the statement qualify as a "verbatim contemporaneous recording" of the witness statement? The Pennsylvania Supreme Court's decision in Commonwealth v. Wilson, 707 A.2d 1114 (1998), is instructive here.
In Wilson, a mother was charged with physical abuse against her minor children. At trial one of the defendant's children was called as a witness, and she denied that her mother abused her. The prosecution then sought to introduce certain handwritten notes of a police interview with the child during which she said that her mother beat her. The investigating officer testified that he compiled his notes in this fashion. He first listened to the child's story and jotted down some general notes. He then posed specific questions to the child and wrote down her answers. The Supreme Court, per Justice Zappala, held that the child's answers as recorded in the notes were not admissible as substantive evidence. The court stated in no uncertain terms that in order to qualify as a "verbatim contemporaneous recording" the statement must be either audiotape or videotaped, i.e. a handwritten statement, even one which purports to be a "word-for-word" account, is not sufficient.
If the strict construction of "verbatim contemporaneous recording" set out in Wilson continues to be the law -- and there is no reason to think otherwise -- the witness's statement contained in the police report in our revised hypothetical is probably not going to be admissible as substantive evidence, and the defendant's motion for a non suit would be granted. Again, bear in mind that if the person speaking to the police officer had been a party to the litigation, the statement would obviously be admissible for the truth of the matter asserted since it constitutes an admission by a party opponent.
One final caveat. Please note that Grimes and Wilson were criminal cases and, thus, these hearsay issues had to be resolved with due deference to the defendant's Sixth Amendment right of confrontation. Arguably, in a civil case, where the court is not encumbered by such constitutional constraints, the nuances applies in those cases --- the threshold requirement of reliability in Grimes and the strict interpretation of "verbatim contemporaneous recording" in Wilson --- might not be invoked. If that is the case, then any prior inconsistent statement of a non-party witness in a civil case will be automatically admissible for both impeachment and substantive purposes so long as it is either under oath, a contemporaneous verbatim recording, or signed by the declarant.