There are seven main rules associated with past statement and past testimony made by witnesses, they include:

  • 613: Past inconsistent statements offered to impeach
  • 801(d)(1)(A): Past inconsistent statements offered substantially
  • 801(d)(1)(B): Past consistent statements
  • 801(d)(1)(C): Statements of identification
  • 804(b)(1): Past testimony
  • 612: Refreshing memory
  • 803(5): Recorded recollection

This article will cover the first five. Although these are generally considered exceptions to hearsay, the rule writers were quite clear in how the exceptions need to be crafted to be admissible.

Inconsistent Statements Offered to Impeach—613

United States v. Barrett

639 F.2d 244 (1st Cir. 1976).

Barrett was arrested along with two others regarding a theft and transport of stamps. He alone went to trial. Earlier, one of the other arrestees (Adams) testified that Barrett had been involved. Later, Adams was telling the other arrestee it was too bad Barrett was caught charged because he was not involved. A waitress heard this conversation and was going to testify at trial. However, the trial court denied this evidence. On appeal, the court disagreed and said the statement should have been offered because it was offered to attack the credibility of the witness by impeachment.

Holland v. French, 273 N.C. App. 252 (2020). French ran a stop sign and caused an accident. The city sought to remove testimony of subsequent remedial measures under 407 regarding discussions to move the stop sign. They called an expert to testify that the placement was fine. Now the plaintiff wants to impeach by asking the expert about a statement they prepared saying the sign was too far back.

United States v. Harris, 881 F.3d 945 (6th Cir. 2018). Harris told his friend to lie saying that their business was selling watches. His friend agreed and lied on the stand. Now the state wants to admit the friend’s text response to impeach his trial testimony.

United States v. Ince

21 F.3d 576 (4th Cir. 1994).

After a shooting in a parking lot of a concert, military police stopped several vehicles and apprehended Ince. Ince testified that he had not been the shooter, but other eyewitnesses identified him as the shooter. One of Ince’s friends also told the officer at the time of the incident that Ince confessed to the shooting. However, when presented at trial, the friend could not recall this statement, and even after her memory was refreshed, could not recall the details. So, the state attempted to impeach her by presenting testimony of the individual who she gave the statement to. At trial, this was admitted. On appeal, however, this was inadmissible because the sole purpose was for the state to circumvent hearsay by impeaching their witness. Essentially, if the state is seeking to impeach their witness for the reason of getting around hearsay, the evidence is not admissible.

United States v. Flecha, 539 F.2d 874 (2d Cir. 1976). Flecha was stopped at customs with a friend. The friend said “If they find the goods, they find the goods.” Flecha said nothing. Can the friend’s testimony be admitted against Flecha? This presents issues related to Miranda and silence. (1) If the defendant is not in custody, silence may be an adoption of admission and be used to impeach. (2) If the defendant is in custody but before being Mirandized, it is debatable of whether the silence is an adoption of admission, but the statement may still be used to impeach. (3) Finally, if the defendant is in custody and has been Mirandized, the silence is not an adoption and may not be used to impeach.

Inconsistent Statements Offered Substantively—801(d)(1)(A)

United States v. Cooper, 767 F.3d 721 (7th Cir. 2014). In a grand jury proceeding, Donia testified that the defendant and others were using her apartment to sell drugs. At trial however, she refused to testify of this matter. Can the state bring in her previous inconsistent statements made at the grand jury proceedings?

Past Consistent Statements—801(d)(1)(B)

Tome v. United States

513 U.S. 150 1995).

Tome was accused of sexually abusing his four year old daughter. After a recent divorce, the Tome and his ex-wife was given joint custody of the daughter, but Tome was given primary custody. The daughter spent the summers with her mother. During a summer, the daughter disclosed comments to her mother and several other individuals upon further questioning about abuse committed by her father. In response, the father is testifying that the stories were fabricated by the mother so the daughter would not return to the father.

801(d)(1)(B) allows past consistent statements to rebut a theory of fabrication “when those statements were made before the charged recent fabrication.” Thus, the state attempted to present several witnesses where the daughter had told the same story. At trial, this testimony was admitted. On appeal, however, the testimony ought to have been excluded because the statements were not made before the charged fabrication. That is the statements made to others testifying occurred after the mother was accused of fabricating the story, not before.

Statements of Identification—801(d)(1)(C)

Commonwealth v. Weichell, 390 Mass. 62 (1983). After hearing four bangs, Folley caught a glimpse of a man running away from a crime scene. He described the man to the police, created a composite drawing, and identified Weichell as the man he saw. Can the composite drawing be admitted at trial? Yes.

United States v. Owens

484 U.S. 554 (1988).

Foster was attacked and suffered severe memory loss from the attack. During a several month stay at the hospital, he had one moment where he was visited by the FBI, and identified Owens as his attacker. He could remember no other visitors during his stay (although he had many). At trial, Foster again recalled the identification procedure at the hospital, but was unable to recount any other hospital encounters on cross-examination, including encounters where Foster had proposed someone else was the attacker. At trial, his testimony was admitted, reversed on appeal, but again reversed and admitted by the United States Supreme Court. Essentially, he had the opportunity to be cross-examined, so his out-of-court identification was fine. The dissent however argues that he was effectively unable to be cross-examined because his memory was so faulty.

State v. Robinson, 718 N.W.2d 400 (Minn. 2006). F.T. testified that she had obtained injuries by accident, but the nurse at the hospital said that F.T. told her Robinson had slapped her really hard. Can the nurse’s testimony be admitted? No, because they already knew who it was (known offender).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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