Thursday, February 14, 2008
My Bloody Valentine: Valentine's Day Case Reveals Texas Still Adheres To Common Law Rule For Prior Inconsistent Statements
The Court of Appeals of Texas' opinion in Madry v. State, 200 S.W.3d 766 (Tex.App.-Houston 2006), reveals that Texas still adheres to the old common law rule regarding the use of extrinsic evidence to impeach a witness through a prior inconsistent statement. In Madry, it was undisputed that on Valentine's Day, 2004, the defendant, Eric Madry, shot his "on again, off again" girlfriend, Demetria Jackson, in the mouth, with the bullet traveling "through Jackson's lip, almost cut[ting] her tongue in half, and fractur[ing] the first cervical vertebrae in her neck." Id. at 767 At trial, the only disputed issue was whether the shooting was accidental or intentional, and the the jury went with the latter interpretation, convicting Madry of aggravated assault. Id. Indeed, Jackson testified that the shooting was intentional at trial, and the trial judge foreclosed Madry from calling "Michelle Permenter, a Crime Victims Advocate, as a witness who allegedly would have testified that Jackson told her that the shooting was accidental." Id. at 769.
On appeal, Madry claimed that the trial judge's ruling was in error. The Court of Appeals rejected this argument, noting that Madry failed to comply with Texas Rule of Evidence 613(a), which states that "[i]n examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement." (emphasis added). The Court of Appeals noted that under Rule 613(a), Landry would have thus needed to "confront Jackson with the statement, telling her the contents of the statement and the time, place, and person to whom it allegedly was made" before he called Permenter; however, he failed to do so.
Undoubtedly, this ruling was correct under Texas Rule of Evidence 613(a), which relies upon the old common law rule, but this common law rule has been eradicated by the Federal Rules of Evidence. See, e.g., United States v. Delta Rose, 403 F.3d 891, 903 (7th Cir. 2005). Under Federal Rule of Evidence 613(b), "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." The key difference under this federal rule is that the word "before" has been removed, meaning that if the Madry case were heard under the federal rules, while defense counsel would have needed to confront Jackson with her alleged prior inconsistent statement at some point during trial, he did not need to do so before Permenter testified. Instead, defense counsel could have called Permenter to testify to the alleged prior inconsistent statement by Jackson and then called Jackson and confronted her with the statement. See id.
The Advisory Committee Note to Rule 613 indicates that the common law rule was relaxed so "several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement....Also, dangers of oversight are reduced." It seems to me that the federal rule is prefereable because allowing a witness to explain a prior inconsistent statement before another witness relates it to the jury would seem to dilute its effect. In the case of a sympathetic witness like Jackson, we may want such dilution, but for many witnesses who have waffled, allowing for opposing counsel to expose them without prior notice would seem preferable.