Prior Statements By Testifying Witnesses 801(d)(1)

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Prior Statements By Testifying Witnesses801(d)(1)
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3 Types of Prior Statements

• Prior Inconsistent Statements (PIS)
• Prior Consistent Statements (PCS)
• Prior Identifications (PID)

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Prior Inconsistent Statements
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How Do You Introduce PISs?

• During cross-examination of the target witness.
• During direct examination of another witness.

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Impeachment vs. Substantive Use(A Tale of Two
Balloons)
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Forbidden Hearsay Inference?
For this to be probative, whom must jury believe?
Jury has to believe an observer who is not
testifying right now.
If observer (who is not the witness right now)
says something is true, it is SML that it is true
He told me light was red
Light was red
Witness
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People who tell different stories are SML to be
wrong
In court, he said it was red

He previously said light was green
Dont give his testimony any weight either way
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How much weight do you give the scales
testimony?
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FRE PISs as Substantive Evidence
Why isnt it required?

• At trial, Declarant must
• Testify, and
• Be available for cross
• PIS must really be inconsistent
• PIS must have been under oath
• PIS must have been given in
• Trial, hearing or other proceeding
• Deposition

Grand Jury
Cross-X of Previous Statement
What is not required?
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Do Problem 27(a)
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The Surprise Problem
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• Trial Testimony
• I saw OG enter building
• I heard a scream and saw OG leave
• Then I saw D enter building
• Minutes later, I saw him leave with a bloody knife

Deposition (Cross)
Grand Jury (No Cross)
Police Station (Videoed Under Oath)

• Prior Statement
• I saw D enter building
• Minutes later, I saw him leave with a bloody knife

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Prior Consistent Statements
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Rehabilitation vs. Substantive Use(Back to the
Balloons)
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FRE PCSs as Substantive Evidence

• At trial, Declarant must
• Testify, and be available for cross
• PCS must be consistent w/testimony
• PCS must be offered to rebut express or implied
  allegation of
• Recent fabrication
• Improper motive
• Improper influence
• Must be pre-motive

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Do Problem 27(b)
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Do Problem 27(c)
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Do Problem 28
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FRE PIDs

• At trial, Declarant must
• Testify, and be available for cross
• ID must be a statement
• Identifying person
• After perceiving him or her
• ID must meet constitutional standards
• NB Need not have been under oath

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Do Examples of Prior IDs

• Current Testimony
• No Memory
• Self-Corroboration
• How Introduced
• By Witness
• By Other Witness
• Types of Prior IDs
• Line Up (or pointing)
• Naming

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Missouri Courts on Prior Inconsistent Statements
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Problem 29
Do Problem 29
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• Civil Cases (Rowe)
• Admissible as Substantive Evidence
• No Surprise Required
• Declarant must
• Testify and
• Be available for cross

• Covered Criminal Cases (Crime listed in
  491.074)
• Admissible as Substantive Evidence
• No Surprise Required
• Declarant must
• Testify and
• Be available for cross

• Other Criminal Cases (Crimes not listed in R.S.
  Mo. 491.074)
• Not Admissible as Substantive Evidence
• Must have surprise to use for impeachment.

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Voucher Rule the Surprise Requirement
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Problem 30
Do Problem 30