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Univ. of South Carolina School of Law

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Thursday, October 11, 2007

"Inconsistent" Change: Louisiana's Erroneous Change to Its Rules on Prior Inconsistent Statements

A ruling in a case in Louisiana brings to light an interesting revision that Louisiana made to its Code of Evidence in 2004.  Austin "Trey" Bernard III goes on trial in November on charges of aggravated rape of a juvenile less than 12 years old.  Bernard is one of six members of the now-defunct Hosanna Church, which has been accused of abusing children as the part of an occult ritual.  In addition to the alleged victim at trial, a few other alleged victims made a half-dozen statements that Bernard sexually abused them, but apparently they now say that they were never abused.  In a pre-trial ruling, the judge found that these past accusations would be admissible should the alleged victims be called as witnesses. 

If this case were being tried in federal court or in (as far as I know) any other state court, these past statements could only be admissible under Rule 613 (or its state counterparts) to impeach the alleged victims' testimony and not to prove that Bernard actually abused the alleged victims.  Rule 801(d)(1)(A) allows prior inconsistent statements to be admissible to impeach a witness and to prove the truth of the matter asserted in the statement, but only when the prior statement was given at a trial, hearing, other proceeding, or desposition while under oath and subject to the penalty of perjury.

Furthermore, pursuant to the widely adopted opinion in United States v. Ince, 21 F.3d 576 (4th CIr. 1994), most courts would not allow the prosecutor to call these alleged victims, knowing that they would deny any abuse.  Instead, courts would find that the prosecutor was calling these witnesses solely so that he could get their prior inconsistent statements before the jury so that, despite an appropriate limiting instruction, the jury could consider them for the truth of what they assert -- that Bernard committed acts of sexual abuse.  Most courts would thus find the statements inadmissible as unduly prejudicial against the defendant.

In 2004, however, Louisiana amended its version of Rule 801(d)(1)(A) so that in criminal cases past inconsistent statements not given under oath are admissible not only to impeach the witness but also to prove the truth of the matter asserted in the statement. See State v. Rankin, 2007 WL 2713076 at *4 (L.App. 2 Cir. 2007).  Apparently, Louisiana amended this Rule based upon problems with noncooperative witnesses in cases of domestic violence. See id.

First, this change to the rule seems odd because the reason that basically every court finds that prior inconsistent statement not made under oath are inadmissible to prove the truth of what they assert is because the person making the statement could have been lying.  I don't see how Louisiana can change this part of its Evidence Code without reevaluation all of its other hearsay rules. 

Second, if Louisiana was specifically concerned with cases of domestic violence, (a) why did it not limit the change to domestic violence cases, and (b) why did it limit the change to criminal cases?  As far as I can tell, the changed rule applies to all criminal cases, so it is overinclusive in that prior inconsistent statements could come in for their truth in any criminal case.  Furthermore, domestic violence can come up in both criminal and civil trials, so the changed rule is underinclusive because it does not cover civil domestic violence cases.

-CM

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