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

1. Prior Statements By Testifying Witnesses801(d)(1)

2. 3 Types of Prior Statements • Prior Inconsistent Statements (PIS) • Prior Consistent Statements (PCS) • Prior Identifications (PID)

3. Prior Inconsistent Statements

4. How Do You Introduce PIS’s? • During cross-examination of the target witness. • During direct examination of another witness.

5. Impeachment vs. Substantive Use(A Tale of Two Balloons)

6. Jury has to believe an observer who is not testifying right now. Forbidden Hearsay Inference? For this to be probative, whom must jury believe? 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

7. People who tell different stories are SML to be wrong In court, he said it was red + He previously said light was green Don’t give his testimony any weight either way

8. How much “weight” do you give the scale’s testimony? 150 250 205 8:00 7:55 7:50

9. Why isn’t it required? FRE & PIS’s as Substantive Evidence • 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?

10. Do Problem 27(a)

11. The “Surprise” Problem

12. 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 Police Station (Videoed & Under Oath) Deposition (Cross) Grand Jury (No Cross) • Prior Statement • I saw D enter building • Minutes later, I saw him leave with a bloody knife

13. Prior Consistent Statements

14. Rehabilitation vs. Substantive Use(Back to the Balloons)

15. FRE & PCS’s 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

16. Do Problem 27(b)

17. Do Problem 27(c)

18. Do Problem 28

19. FRE & PID’s • 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

20. Do Examples of Prior ID’s • Current Testimony • No Memory • Self-Corroboration • How Introduced • By Witness • By Other Witness • Types of Prior ID’s • Line Up (or pointing) • Naming

21. Missouri Courts on Prior Inconsistent Statements

22. Problem 29 Do Problem 29

23. 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.

24. Voucher Rule & the Surprise Requirement

25. Problem 30 Do Problem 30