CORE CRIMINAL LAW SUBJECTS: Evidence: Prior Inconsistent Statements

2018 (October Term)

United States v. Frost, 79 M.J. 104 (hearsay is generally not admissible in courts-martial; however, a prior consistent statement is not hearsay; hearsay; from the plain language of MRE 801(d)(1)(B), three criteria have been derived for the admission of prior consistent statements: (1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant’s testimony; and (3) the statement must be offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying; in addition, there are two additional guiding principles governing the admission of a prior consistent statement: (1) the prior statement, admitted as substantive evidence, must precede any motive to fabricate or improper influence that it is offered to rebut; and (2) where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut). 

(in this case, the military judge made a clearly erroneous finding of fact when he admitted the initial statement of the alleged victim as a prior consistent statement after he determined that the defense had alleged that the victim’s psychotherapist had exerted an improper influence on the victim during counseling sessions and that this initial statement was made prior to the improper influence; in fact, based on the defense counsel’s opening statement, her cross-examination of the victim’s mother and the victim’s psychotherapist, and her colloquy with the military judge, the defense’s sole theory and line of approach was that the victim’s mother, not the psychotherapist, had a motive to improperly influence the victim by her desire to obtain sole custody of her children (to include the victim), and that she exerted an improper influence on the victim prior to the victim’s initial statement; statements made after an improper influence arose do not rehabilitate a witness’s credibility; because the military judge’s finding was unsupported by the record and outside the range of choices reasonably arising from the law and the applicable facts, the military judge abused his discretion in admitting the victim’s initial statement as a prior consistent statement when the initial statement was made after the mother’s improper influence). 



United States v. Harrow, 65 M.J. 190 (the process of impeachment by prior inconsistent statement is a tool to attack the credibility and/or recollection of a witness; by showing self-contradiction, the witness can be discredited as a person capable of error; MRE 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same; if the inconsistency is admitted, extrinsic evidence is generally not admissible; if the inconsistency is not admitted, or the witness equivocates, extrinsic evidence may be admitted, but only for impeachment). 


(in this case, the military judge erred when he determined that a failure to remember facts contained in a prior statement cannot be inconsistent with in-court testimony that differs from those facts; an inconsistency for purposes of MRE 613 may be found not only in diametrically opposed answers, but also in inability to recall, or equivocation; a military judge has considerable discretion to determine if the trial testimony is inconsistent with a prior statement; but here the military judge appears not to have understood that an inability to recall or a non-responsive answer may present an inconsistency for purposes of MRE 613; consequently, his evidentiary ruling, based on an incorrect understanding of the law, was an abuse of discretion). 


(the military judge did not abuse his discretion in rejecting a defense attempt, under the guise of impeachment by inconsistent testimony, to bring in new evidence that related to a point that the witness had not testified to at trial; the witness was not asked about this point during his testimony, there was no inconsistency, and the defense had not established a foundation for later impeachment).



United States v. Meghdadi, 60 M.J. 438 (M.R.E. 608(c) [Evidence of bias] permits introduction of evidence, extrinsic or otherwise, tending to establish bias, prejudice, or motive to misrepresent on the part of a witness; M.R.E. 613(b) [Extrinsic evidence of prior inconsistent statement of witness] permits the extrinsic evidence of prior inconsistent statements if the witness denies making them, or equivocates).


United States v. Palmer, 55 MJ 205 (although the usual practice is to confront the witness with an inconsistent statement during cross-examination, it is permissible to delay any mention of the inconsistent statement until other witnesses are called).

(military judge did not abuse his discretion by sustaining objection to alleged inconsistent statement where defense counselís proffer was vague, misdirected under the rules of evidence, not linked to the credibility of a prior witness, and did not allude to the inconsistency between the pretrial statement and trial testimony as the basis for admission).



United States v. Cobia, 53 MJ 305 (the transcript of appellantís guilty plea to the same acts as charged at court-marital was admissible as a prior inconsistent statement under MRE 613).

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