EVIDENTIARY EFFECTS AND TACTICAL OPTIONS IN THE USE OF OUT OF COURT STATEMENTS

• NCJ Number: 60612
• Journal: UMKC Law Review Volume: 47 Issue: 2 Dated: (WINTER 1978) Pages: 145-170
• Author(s): J W JEANS
• Date Published: 1978
• Length: 26 pages
• Corporate Author: University of Missouri, Kansas City
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

EVIDENTIARY EFFECTS AND TACTICAL OPTIONS AVAILABLE IN THE USE OF OUT OF COURT STATEMENTS ARE EXAMINED TO ASSIST ADVOCATES USING SUCH STATEMENTS, ESPECIALLY WHEN A WITNESS TESTIFIES IN CONTRADICTION TO PRIOR STATEMENTS.

Abstract

AMONG THE RULES OF EVIDENCE, RULE 801 (D) (2) HOLDS THAT OUT OF COURT STATEMENTS ARE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. THIS DISCUSSION CONSIDERS EXPRESS ADMISSIONS ONLY. SUCH ADMISSIONS ARE FOUND IN DEPOSITIONS, ANSWERS TO INTERROGATORIES, OFFICIAL RECORDS, RECORDED STATEMENTS GIVEN TO OPPOSING INVESTIGATORS, AND SPONTANEOUS STATEMENTS MADE AT OR AFTER THE LITIGATION-PRODUCING EVENT. RULE 613 STATES THAT PRIOR STATEMENTS OF A WITNESS OTHER THAN A PARTY OPPONENT MAY BE INTRODUCED WITHOUT BEING SHOWN TO THE WITNESS AND MUST BE SHOWN TO THE OPPOSING COUNSEL IF REQUESTED. MOREOVER, IF THE STATEMENT IS INCONSISTENT WITH THE WITNESS'S TESTIMONY IN COURT, THE WITNESS MUST BE GIVEN THE CHANCE TO EXPLAIN OR DENY THE PRIOR STATEMENT, IN ORDER FOR IT TO BE ADMISSIBLE. RULE 613 INCREASES THE OPTIONS REGARDING THE TIMING AND MECHANICS OF INTRODUCTION OF PRIOR STATEMENTS; CHOICE OF OPTION WILL DEPEND ON INDIVIDUAL CIRCUMSTANCES. EVIDENTIARY EFFECTS OF OUT OF COURT STATEMENTS BY WITNESSES HAVE BEEN MODIFIED BY RULE 801 (2) (1) (A) WHICH MAKES ADMISSIBLE PRIOR STATEMENTS GIVEN UNDER OATH SUBJECT TO THE PENALTY OF PERJURY AT A TRIAL, HEARING, OR OTHER PROCEEDING, OR IN A DEPOSITION. RULE 801 (D) (1) IS CONSISTENT WITH THE DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WITH ACCUSERS. IF TESTIMONY IS INCONSISTENT WITH OUT OF COURT STATEMENTS, THE ADVOCATE'S TACTICS WILL DEPEND ON WHETHER THE WITNESS DENIES MAKING THE STATEMENT OR DENIES THE TRUTH OF THE STATEMENT. RATHER THAN SIMPLY TRYING TO IMPEACH THE WITNESS, THE ADVOCATE SHOULD USE A SPECIFIC SEQUENCE OF TYPES OF QUESTIONS IN ORDER TO CONSTRUCTIVELY ESTABLISH THE CREDENTIALS OF THE OUT-OF-COURT STATEMENT. FOOTNOTES WITH REFERENCES, AND EXAMPLES OF LINES OF QUESTIONING, ARE INCLUDED. (CFW)