Thursday, December 25, 2008
Mayberry, R.F.D.: Sixth Circuit Allows For Introduction Of Prior Inconsistent Statements After Witness Claims Lack Of Memory In Christmas Case
The opinion of the Sixth Circuit in United States v. Mayberry, 540 F.3d 506 (6th Cir. 2008), reveals that the prosecution can introduce a prior inconsistent statement when a witness claims lack of memory at trial.
In Mayberry, James Peoples appealed his conviction for being a felon in possession of a firearm. And Peoples was convicted in large part based upon the testimony of informant John Bowman. According to Bowman, he contacted the Grand Rapids, Michigan police and informed them that Peoples and his codefendant, Shawn Mayberry, were involved in two grocery store robberies. According to Bowman, Peoples and Mayberry approached him around "Christmas time" 2005 and asked if he would like to participate in their next robbery.
Bowman, however, did not provide this testimony at trial. Instead, he rendered it before the grand jury. When he was called at trial, "Bowman claimed he did not remember having conversations with Peoples that implicated Peoples in the grocery store robberies."
At that point, the prosecution introduced his grand jury testimony as prior inconsistent statements pursuant to Federal Rule of Evidence 801(d)(1)(A), which indicates that
"[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."
Peoples subsequently appealed, claiming, inter alia, that Bowman's grand jury testimony was not inconsistent with his testimony at trial and that Bowman was not subject to cross-examination at trial because he claimed lack of memory.
The Sixth Circuit, however, disagreed, finding first that "[i]t is well established that a witness['] 'limited and vague recall of events, equivocation, and claims of memory loss' can constitute prior inconsistent statements under Fed.R.Evid. 801(d)(1), and thus such statements allow the witness' prior inconsistent grand jury testimony to be admitted as substantive evidence."
Then, with regard to Peoples' second argument, the court found that Bowman did indeed testify at trial and was subject to cross-examination, notwithstanding his claim of memory loss.
While I have trouble with both of these conclusions, and while the prosecution could not have called Bowman for the sole purpose of impeaching him, the Sixth Circuit's conclusions are both accurate applications of the current state of the law.