Synopsis: The use of prior inconsistent statements during criminal trials is both crucial and perilous for the criminal litigator. This article reviews and evaluates recent judicial interpretations of § 491.074, RSMo, which makes admissible as substantive evidence at trial ex parte prior inconsistent statements in certain criminal proceedings.

Introduction

Section 491.074, RSMo,¹ effective since 1985, provides that a prior inconsistent statement of any witness testifying in the trial of an offense under Chapters 565,² 566,³ or 568, RSMo,⁴ shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of that statement to the fact finder.⁵ While this statute may seem quite clear on its face, it has been subjected to a variety of conflicting judicial interpretations and limitations over the past 10 years.

Knowing when and for what purpose one can use a prior inconsistent statement at trial is essential for the criminal litigator. Statements witnesses make before trial which are inconsistent with their trial testimony frequently contain information crucial to the fact finders' determination of the defendant's guilt or innocence. The ability to bring the prior yet inconsistent information to the jury's attention, however, is limited by the defendant's Sixth Amendment right to confront those witnesses who testify against him or her. Varying judicial interpretations of the breadth and rigidity of the Sixth Amendment, as well as the procedural context in which prior inconsistent statements are admissible, has made this a perilous area of criminal trial practice. The recalcitrant witness is commonplace in violent felony prosecutions, and the likelihood of appellate reversal for the improper use of a prior inconsistent statement is substantial. This article seeks to illuminate the terrain of this area for the criminal litigant and shed light upon the need for a clearer path.

In State v. Bowman,⁶ an eyewitness to a murder testified at trial that he, in fact, had not witnessed the murder. The State then introduced into evidence the witness' prior videotaped statement to a policeofficer in which he stated that he witnessed the defendant committing the murder at issue.⁷ The witness admitted at trial that he had made the prior statement to the police, but testified that the prior statement was a lie and the product of the interrogating police officer's mistreatment of him.⁸ Regardless, the jury convicted the defendant.

On appeal, the defendant claimed that the admission of the witness' prior statement to police violated his Sixth Amendment right to confront witnesses against him.⁹ While the Bowman Court recognized that "the question of extrajudicial statements as substantive evidence has been sharply debated in our courts," it concluded that § 491.074 did not violate the state or federal constitutions.¹⁰ The Court relied upon California v. Green¹¹ in which the United States Supreme Court explicitly rejected precedent that found constitutional error in admitting ex parte inconsistent statements pursuant to a California statute similar to § 491.074.¹²

Notably, the Court stated that "the only necessary foundation [for the admissibility of prior inconsistent statements] is the inquiry as to whether the witness made the statement and whether the statement is true."¹³ According to the Court, "any requirement of additional foundation would dilute the effect of [§ 491.074]." The Bowman Court, however, specifically refrained from expressing an opinion as to whether a prior inconsistent statement may be used as substantive evidence in a criminal case if the witness does not admit to having made the prior statement.¹⁴ Because witnesses confronted by a violent defendant are usually afraid to admit, and therefore deny, that they gave any statement to the police, the Bowman opinion left a very important question unanswered: Is a prior inconsistent statement admissible if the witness denies he or she even made the statement?

Less than two years after Bowman, the Missouri Court of Appeals for the Eastern District in State v. Oliver, was confronted with this very question. The Oliver Court's answer: "[I]n a criminal case, the prior inconsistent extrajudicial statements of a witness may not be admitted as substantive evidence when the witness denies at trial having made the statements."¹⁵ Thus, under Oliver, the prior statement of a witness who later testifies contrary to what he or she said in his or her prior statement is admissible if he or she acknowledges the existence of the prior statement. The prior statement of a witness who testifies that he or she didn't make the prior statement, however, is not admissible. The Oliver court based this distinction upon the concern articulated by the sole dissenter in Rowe v. Farmers Insurance Co., Inc.¹⁶ The Rowe dissenter was concerned about the potential for fabrication by overzealous police officers and prosecutors.¹⁷ According to the Oliver Court, "[t]he potential for conviction on the basis of a statement which is denied by the person to whom it was imputed cannot be tolerated."¹⁸ The Oliver court expressed an additional concern regarding the defendant's ability to cross-examine the denying declarant, but refrained from explicitly finding a Sixth Amendment violation.¹⁹

A different panel of the same district seemed to retreat from the Oliver court's position, however, when it held that "it is not necessary for the declarant to himself admit he made the statements if from his testimony and other evidence it is established that such statements were made."²⁰ In State v. Jennings, the State introduced into evidence videotapes of prior inconsistent statements made by three of its own witnesses, after the witnesses denied making parts of their prior statements.²¹ On appeal, the defendant claimed that the admission of these prior statements violated his rights to confrontation and cross-examination.²² In addition, the appellant claimed that, even if admissible, they should not have been considered as substantive evidence because they were unsworn, unreliable, extrajudicial and repudiated under oath at trial.²³

In a strikingly confusing opinion, the Jennings court initiated its analysis by carving a "reliability" exception into the Oliver rule based upon State v. Belk, a case which was decided prior to Oliver.²⁴ Specifically, the court opined that, based upon Belk, prior statements that a witness denies having made are admissible, despite Oliver, if there is reliable collateral evidence establishing that the statements had, in fact, been made.²⁵ The Jennings court identified the police officers' testimony and the videotapes of the prior statements as reliable evidence that the prior statements had been made.²⁶

Despite this holding, the Jennings court proceeded to re-embrace Oliver and employ two different analyses: one to prior statements that the witness both denied and admitted he or she had made, and one to prior statements that the witness "denied but never admitted."²⁷ The Jennings court employed these distinct analyses despite the fact that all of the prior statements at issue were both witnessed and videotaped. The court seemed to abandon its Belk exception completely when it held the non-denied statements to be "admissible," and the denied statements non-prejudicial "in light of the other properly admitted statements."²⁸ Under the court's own Belk exception, the fact that the witness denied making the videotaped prior statements should have been irrelevant, and all of the prior statements should have been admissible, as opposed to non-prejudicial.

On the other side of the state, the Missouri Court of Appeals for the Western District held that it is not necessary for the witness to admit to making the prior statement, nor is it necessary for the witness to admit that the prior statement was true, before the trier of fact can consider the prior statement as substantive evidence.²⁹ In State v. Patterson, the State was again confronted with three of its witnesses at trial running away from prior statements in which they implicated the defendant. One witness contradicted but admitted she made the prior statement; one witness admitted that he made the prior statement, but claimed that it was coerced; and one witness denied and never admitted to the making of the prior statement.³⁰ The Patterson court held admissible the prior statements of the first two witnesses under Bowman, and the third under Belk "because the jury had other evidence he did [make the prior statement]."³¹ The court made no mention of Oliver.³²

In State v. R__D__G__, the Missouri Court of Appeals for the Southern District was called upon to evaluate the propriety of the admission of a prior inconsistent statement for impeachment purposes only.³³ The court held that prior inconsistent statements could be used for impeachment purposes if the witness denies or claims he or she does not recall making the prior statement, but declined to decide whether or not such a foundation would be adequate for admissibility under § 491.074.³⁴ Reading R__D__G and Oliver together, it would appear that you can always use the prior inconsistent statement, but the use to which it can be put by the jury varies with the hostile witness' semantics at trial.

In State v. Blankenship,³⁵ the Supreme Court of Missouri answered the question it had declined to answer in Bowman by upholding the admission of a prior inconsistent statement of a witness who denied making the statement to police.³⁶ In doing so, the Blankenship Court specifically addressed Oliver and Jennings. Pointing to "recent" United States Supreme Court decisions, the Blankenship Court stated that "the admission of an out-of-court statement that the witness does not recall making does not violate the Confrontation Clause . . . there was no prerequisite that the prior statement be supported by indicia of reliability where the declarant is available at trial for cross-examination."³⁷ This holding would surely seem to overrule Belk, Oliver and Jennings. Nonetheless, the Supreme Court proceeded to emphasize the reliability of the videotaped prior statements.³⁸ Furthermore, the Court specifically declined "to decide the viability of the requirement in Oliver that the prior statement must be recorded by a reliable means to qualify for admission in evidence where the witness denies making the statement."³⁹ Of course, there was no such requirement in Oliver. Oliver banned outright the admissibility of denied prior statements, and Jennings merely suggested a reliability exception to that ban based upon Belk.

Finally, in State v. Woodworth,⁴⁰ a state's witness allegedly made statements while hospitalized after suffering a bullet wound to the head. The alleged statements purportedly identified a person other than the defendant as the assailant of the witness and his wife. The witness did not recall making the prior statements, nor were they videotaped or audiotaped.⁴¹

Under these circumstances, Belk, Oliver, and Jennings suggest that the Woodworth witness' prior statements would not be admissible because the witness did not admit to having made the prior statement and the prior statement was not recorded.⁴² The trial court sustained the state's motion in limine, precluding the admission of the prior statements. The Missouri Court of Appeals for the Western District, however, concluded that these prior out-of-court statements should have been admitted as substantive evidence pursuant to § 491.074,⁴³ despite the fact that the witness did not recall making the prior unrecorded statements. Pointing to Blankenship and Patterson, as well as State v. Chandler,⁴⁴ a case in which the Eastern District failed without comment to follow Oliver, the Woodworth court questioned the continued viability of Oliver.⁴⁵ Regarding Patterson, the court stated that "nothing in Patterson indicates the prior statements were recorded; testimony that the statement had been made apparently was enough."⁴⁶ The court paid deference to Belk and Jennings, however, by noting that the prior statements "were heard by numerous witnesses, including the doctor, and the latter actually noted the statements [in the witness'] medical records."⁴⁷

Interestingly, the Woodworth court suggested in a footnote that the Eastern District's Oliver rule precluding the use of disowned prior statements may apply to the State's use of such statements, but not to defendants, because the State does not have a right to confrontation. The Oliver rule, however, thwarts the intent of § 491.074⁴⁸ when applied to the state. In cases of serious crimes against persons, the Oliver rule invites witness intimidation and miscarriages of justice. Under Oliver, the truth-seeking function of a trial is thwarted by the witness who denies making the prior statement, but not by the witness who merely acknowledges it, but testifies contrary to it.⁴⁹ In the end, prior inconsistent statements become admissible only when a witness admits he (1) made, but lied in, a prior statement (arguably defeating the prior statement) or (2) made and told the truth in the prior statement (defeating the need for the prior statement, its content having been adopted by the witness). Finally, the defendant may exercise his or her right to confrontation through cross-examination of the witness testifying to the existence and substance of the prior incriminating statement. This witness, as opposed to the fearful denying declarant, is the real witness against the defendant.⁵⁰

The question looming for criminal litigants is whether Oliver, which expressly holds that prior inconsistent extrajudicial statements of a witness may not be admitted as substantive evidence when the witness denies at trial having made the prior statements, or Belk and Jennings, which suggest that the prior statements may be admitted even if denied, if the prior statements are recorded by reliable means, accurately reflects the current status of the law, or whether Oliver, Belk and Jennings have been overruled by Blankenship and Woodworth. It is this author's opinion that the Oliver rule, which has been resuscitated twice in footnotes to opinions, should finally be put to rest. The Belk-Jennings approach is more reasonable and flexible than Oliver, but the Supreme Court in Blankenship declined to explicitly adopt it, and mistakenly attributed it to Oliver. The Woodworth court, on the other hand, seemed to adopt a watered-down version of the Belk-Jennings approach.

Prior inconsistent statements should be admissible, even if the witness denies having made them or claims he or she does not remember making them, particularly if the prior statement is recorded by a reliable means such as videotape or audiotape. This rule should apply equally to both defendants and the State. What's good for the goose is good for the gander. Finally, until the judiciary or the legislature settles this issue, criminal litigants should utilize § 491.074 only when the prior inconsistent statement is recorded by a reliable means if the witness denies or claims he or she does not recall having made the prior statement. Woodworth and Patterson suggest a videotape or audiotape is not mandatory, but this author recommends you use one, particularly if you are in the Eastern District.

1 RSMo, 1994.

2 Offenses against the person, such as homicides and assaults.

3 Sexual offenses.

4 Offenses against the family, such as incest and child abuse or endangerment.

5 Prior to the enactment of § 491.074, a witness' prior inconsistent statements were admitted solely for purposes of impeachment. See, e.g., State v. Granberry, 491 S.W.2d 528, 530-31 (Mo. banc 1973); State v. Clark, 756 S.W.2d 565, 568 (Mo. App. W.D. 1988).

6 Bowman, 741 S.W.2d 10, 14 (Mo. banc 1987).

7 Bowman, 741 S.W.2d at 11-12.

8 Id.

9 Bowman, 741 S.W.2d at 12-13.

10 Bowman, 741 S.W.2d at 13.

11 399 U.S. 149 (1970).

12 Bowman, 741 S.W.2d at 13.

13 Bowman, 741 S.W.2d at 14 (emphasis added).

14 Id., at fn. 6.

15 State v. Oliver, 775 S.W.2d 308, 310 (Mo. App. E.D. 1989) (emphasis added).

16 Rowe, 699 S.W.2d 423, 425 (Mo. banc 1985).

17 Oliver, 775 S.W. 2d at 310. Rowe, 699 S.W.2d at 433-36.

18 Oliver, 775 S.W.2d at 310.

19 Id., at 310-11.

20 State v. Jennings, 815 S.W.2d 434, 443-44 (Mo. App. E.D. 1991), citing State v. Belk, 759 S.W.2d 257, 259 (Mo. App. E.D. 1988) (noting that the only necessary foundation is the inquiry as to whether the witness made the prior statement and whether the statement is true).

21 Jennings, 815 S.W.2d at 440, 443.

22 Jennings, 815 S.W.2d at 443.

23 Id.

24 Jennings, 815 S.W.2d at 443-44.

25 Id.

26 Jennings, 815 S.W.2d at 443-45.

27 Jennings, 815 S.W.2d at 444-46.

28 Id.

29 State v. Patterson, 826 S.W.2d 38, 40 (Mo. App. W.D. 1992).

30 Patterson, 826 S.W.2d at 39-40.

31 Id. The Court did not specify what "other evidence" was available to the jury.

32 Id.

33 R__D__G__, 733 S.W.2d 824, 827-28 (Mo. App. S.D. 1987).

34 Id.

35 830 S.W.2d 1 (Mo. banc 1992).

36 Blankenship, 830 S.W.2d at 9-12.

37 Id. at 12 (citing United States v. Owens, 484 U.S. 554 (1988); California v. Green, 399 U.S. 149 (1970).

38 Id.

39 Id. at fn. 9

40 941 S.W.2d 679 (Mo. App. W.D. 1997).

41 Woodworth, 941 S.W.2d at 684-86.

42 See also, California v. Green, 399 U.S. 149 (1970) (expressly leaving open the question of whether a witness' lapse of memory might prevent the use of his or her prior inconsistent out-of-court statements as substantive evidence).

43 RSMo, 1994.

44 860 S.W.2d 823 (Mo. App. E.D. 1993).

45 Woodworth, 941 S.W.2d at 691.

46 Woodworth, 941 S.W.2d at 692.

47 Id.

48 RSMo, 1994.

49 Both types of witnesses are invariably fearful of the defendant and the potential for reprisals.

50 U. S. Const. amend VI ("the accused shall enjoy the right . . . to be confronted with witnesses against him").

©1997, David Cosgrove

 The opinions articulated in this particular article are not necessarily the opinions of the Office of the Attorney General of Missouri.