Greenwood, Richard Glen

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Evidence: Prior Inconsistent Statements as Substantive Evidence

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Marquette Law ReviewVolume 41Issue 3 Winter 1957-1958 Article 8Evidence: Prior Inconsistent Statements asSubstantive EvidenceRichard Glen GreenwoodFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationRichard Glen Greenwood, Evidence: Prior Inconsistent Statements as Substantive Evidence, 41 Marq. L. Rev. 317 (1958).Available at: http://scholarship.law.marquette.edu/mulr/vol41/iss3/8RECENT DECISIONSEvidence: Prior Inconsistent Statements as Substantive Evi-dence - In the current case of State v. Major,' the accused was foundguilty of unlawful possession and sale of narcotics in violation of secs.161.02(1)2 and 161.02(2)s of the statutes. On the trial one Hector X.Santoy, a witness called by the State, testified that he never saw ortalked to the accused on the date of the alleged offense. This testimonywas inconsistent with a previous stenographically recorded statementmade by Santoy to two Milwaukee police officers in accordance withsec. 325.354 of the statutes. This recorded statement was to the effectthat the accused possessed and sold narcotics to Santoy. Santoy ad-mitted that he made the previous statement to the officers and volun-teered:"About that testimony [statement] I gave, well, it is falsebecause the only reason I gave it was because I thought I couldget off easier if I would blame anybody." 5The State then asked the court to declare Santoy a hostile witnessand the court over objection permitted the district attorney to readinto the record certain portions of the statement and examine the wit-ness on the questions and answers contained therein. The defendantwas found guilty and then moved for a new trial which was denied.The defendant was thereupon sentenced and he then appealed to theSupreme Court. The Supreme Court reaffirmed its former positionin holding with the orthodox view by announcing:"This court has long adhered to the majority rule that pre-vious inconsistent statements of a witness cannot be accordedany value as substantive evidence.""On appeal it was the State's position that the trial court's rulingI State v. Major, 274 Wis. 110, 79 N.W.2d 75 (1956).2 WIs. STATS. §161.02 (1) (1955) : "It shall be unlawful for any person to man-ufacture, possess, have control of, buy, sell, give away, prescribe, administer.dispense or compound any narcotic drug, except as authorized in this chapter.Any person violating this section shall upon conviction be imprisoned in thestate prison not more than 5 years nor less than one year or in the countyjail not more than one year."3 Wis. STATS. §161.02 (2) (1955): "Any person who shall sell, give, prescribe,administer or dispense any narcotic drug, except as authorized in this chapter,to any person under the age of 21 years, shall be imprisoned in the state pri-son not less than 3 years nor more than 25 years, provided that on a secondconviction for such offense such person shall be imprisoned for not less than5 years nor more than for life and for a third conviction for such offensesuch person shall be imprisoned for life."SVIs. STATS. §325.35 (1955): "Where testimony of a witness on the trial in acriminal action is inconsistent with a statement previously made by him andreduced to writing and approved by him or taken by a phonographic reporter,he may, in the discretion of the court, be regarded as a hostile witness andeamined as an adverse witness, and the party producing him may impeach himby evidence of such prior contradictory statement."5274 Wis. at 111, 79 N.W.2d at 76.6 Hamilton v. Reinemann, 233 Wis. 572, 290 N.W. 194 (1940) ; Jaster v. filler,269 Wis. 223, 69 N.W.2d 265 (1955).7274 Wis. at 112, 79 N.W.2d at 77.1957-1958]MARQUETTE LAW REVIEWwas a proper application of sec. 325.35.8 It was urged by the Statethat sec. 325.351 was a legislative expansion of the procedure reviewedin Malone v. State.'0 In disposing of this argument the court stated:"In a criminal action examination of a hostile witness as anadverse witness allows the prosecutor to examine without beingbound by the witness' answers and provides the opportunity torepair the harm done to the State's case by surprise, but thestatute shows no intention on the part of the legislature to allowhearsay evidence to be considered as proof of the facts. Thecreation of sec. 325.35 Stats., by the enactment of Ch. 535,Laws of 1945, in no way changed the rule of evidence. Inenacting the chapter the legislature declared it to be an actrelating to the impeachment of hostile witnesses in criminalactions. Impeachment goes only to the credibility of the witnessand the negation of his testimony."'"In light of this recent reaffirmation by the Court of the "orthodox"or "prevailing view" it is of merit to consider the evidentiary me-chanics of both positions. A concise statement of the orthodox viewis that:"Proof of prior inconsistent statements of a witness can beintroduced and considered only for the purpose of impeachmentand not as substantive evidence of the truth of the matter stated,and it is the duty of the court to instruct the jury that they canconsider the evidence for this purpose only, if such instructionis requested by the party who apprehends that such proof maybe treated by the jury as substantive evidence against him." 2The rationale employed to deny substantive effect to prior inconsistentstatements of a witness is that if such statements were accepted asproof of the facts stated, the testimony would be hearsay.13 It wouldappear that if the prior inconsistent statement were not hearsay or ifit would fall within the standard exceptions to the hearsay rule, therewould be no reason for denying substantive admission of the statement.The view espoused by Dean Wigmore14 and corroborated by Pro-fessor McCormick" is commonly considered the "unorthodox view."Dean Wigmore declares:"It does not follow, however, that prior self-contradictions,when admitted, are to be treated as having no affirmative testi-monial value and that any such credit is to be strictly denieds See note 4 supra.9 Ibid.10 Malone v. State, 192 Wis. 379, at 388, 212 N.W. 879, at 882 (1927).1274 Wis. at 113, 79 N.W.2d at 78.12 Charlton v. Unis, 4 Gratt 60 (1847) ; Gould v. Norfolk Lead Co., 9 Cush.346 (1855). See 70 C. J., Witnesses §1339b (1935).'1 Culpepper v. State, 4 Okl. Cr. 103, 11 P. 679 (1903) ; Medlin v. County Bd. ofEducation, 167 N.C. 239, 83 S.E. 483 (1914) ; See 70 C. J., Witnesses 1339(1935)." See 3 WIGMORE, EVIDENCE §1018 (a) (3rd ed. 1940).15 See MIcCORMICK, HANDBOOK OF THE LAW OF EVIDENCE §39 (1954).[Vol. 41RECENT DECISIONSthem in the mind of the tribunal. The only ground for doingso would be the Hearsay Rule. But the theory of the HearsayRule is that an extra-judicial statement is rejected because it wasmade out of court by an absent person not subject to crossexamination. . . .Here, however, by hypothesis, the witness ispresent and subject to cross examination. There is ample op-portunity to test him as to the basis of his former statement.The whole purpose of the Hearsay Rule has already beensatisfied. Hence there is nothing to prevent the tribunal fromgiving such testimonial credit to the extra-judicial statementas it may seem to deserve."",It is apparent that Dean Wigmore has omitted the elemental objectionthat the statement must be made under oath to qualify as non-hearsay,however, Dean Wigmore found support for his view in such aneminent jurist as Learned Hand. Justice Hand, speaking relative tothis matter, argued for a change in this regard:"The possibility that the jury may accept as the truth theearlier statements in preference to those made upon the standis indeed real, but we find no difficulty in it. If, from all thatthe jury see of the witness, they conclude that what he says nowis not the truth, but what he said before, they are nonethelessdeciding from what they see and hear of that person and incourt. There is no mythical necessity that the case must bedecided only in accordance with the truth of words utteredunder oath in court."'"The best analytical dissection of the "unorthodox view" can befound in State v. SaporenW' in which the legal issue and facts closelyparallel that of the featured case."9 In that case the accused was con-victed of carnal knowledge and abuse of a female under 18 years.The main question was one of identification which the jury resolvedagainst the accused. The point arose from the State's impeachmentof its own witness, one Sekerman. The date of the offense was fixedby the State's evidence as Nov. 2, 1937 in room 201 of a boardinghouse. Sekerman was called in rebuttal by the State and asked if hehad seen the prosecuting witness in room 201. He answered that hehad seen her and when interrogated as to the date he replied, "Ithink it was in October." He was asked whether he would say it wasnot Nov. 2nd and he answered "Yes." The county attorney claimedsurprise and he was given leave to impeach the witness which he didby reference to a previous unsworn statement, by way of questionand answer, procured by a probation officer with the assistance of astenographer. The Court reversed this conviction of the accusedbasing its decision on the mijority view that such impeaching testi-16 See note 13 supra.17 Di Carlo v. United States, 6 F.2d 364, at 368 (2d Cir. 1925).18 State v. Saporen, 205 Minn. 358, 285 N.W. 898 (1939).19 See note 1 supra.1957-19581MARQUETTE LAW REVIEWmony cannot be considered as substantive evidence. The Court con-sidering the "unorthodox view" of Dean Wigmore remarked:"The previous statement was when made and remains anex parte affair, given without oath and test of cross examination.Important also is the fact that, however much it may havemangled truth, there was assurance of freedom from prosecu-tion for perjury. The chief merit of cross examination is notthat at some future time it gives the party opponent the rightto dissect adverse testimony. Its principal virtue is in its im-mediate application of the testing process. Its strokes fallwhile the iron is hot. False testimony is apt to harden andbecome unyielding to the blows of truth in proportion as thewitness has opportunity for reconsideration and influence bythe suggestion of others, whose interest may be, and often is tomaintain falsehood rather than truth."20The Court further remarked that there are additional practical rea-sons for not attaching anything of substantive evidential value to extrajudicial assertions which come in only as impeachment. It was urgedthat such unrestricted use as evidence would increase both temptationand opportunity for the manufacture of evidence and declarationsextracted by the most extreme of "third degree" methods could easilybe made into affirmative evidence. 21It is the conclusion of this writer that the ratio decidendi of theorthodox view in this matter is preferable. Although the WisconsinCourt in the featured case did not give a detailed consideration to bothpositions, it is submitted that the Minnesota Court's reasoning in theSaporen case, is sound. Obviously any prior inconsistent statementwhich violates the rule against hearsay, that is: (1) is not made underoath; (2) is made without the opportunity for cross examination;(3) is made without confrontation, would be inadmissible as sub-stantive evidence. However, even if the statement would be non-hearsay or fall within its exceptions, it would seem that for the policyreason of discouraging the manufacture of evidence, it would be morepractical to exclude the prior inconsistent statement as substantiveevidence.RICHARD GLEN GREENWOODConstitutional Law: Obscenity Not Within the Area of Con-stitutionally Protected Speech or Press- In case No. 582, on cer-tiorari to the United State Supreme Court, the defendant conducteda business in New York in the publication and sale of books, photo-graphs, and magazines. Circulars and advertising matters were usedto solicit sales. Defendant was convicted by a jury in the DistrictCourt for the Southern District of New York upon four counts of ao See note 17 supra.21 Ibid.[Vol. 41

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Evidence: Prior Inconsistent Statements as Substantive Evidence

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