October 18, 2008
The Flaming Meaux: Wiconsin Court To Determine Admissibility Of Fire Officials' Testimony In Bar Burning
Adam Ward, the former owner of the Firehouse bar in Green Bay, is about to stand trial to face charges of felony injury by negligent handling of fire in connection with burning a woman at his bar on October 4, 2007. And based upon a story on the article, it seems clear to me that two Green Bay Fire Department officials will be able to testify at that trial that they warned staff at the Firehouse bar about setting fire to alcohol poured on the bar several months before the incident at issue.
In an apparent attempt to become a poor man's Coyote Ugly, employees of the Firehouse bar would douse the bar with alcohol and set it ablaze. In a pre-trial hearing held yesterday to determine the admissibility of certain evidence, Green Bay Fire Captain Gregg Fredrickson testified that he was at the bar in December 2006 and witnessed a member of the bar staff douse the bar with alcohol and set it ablaze. He then claimed that he later went to the bar to talk to the staff and made contact with a woman who said she would take care of the matter.
Green Bay Fire Captain Chris Heil also testified yesterday that he learned of the stunt and tracked down Ward in the spring of 2007 and told him the practice was dangerous and illegal. "I told him it can't be done…someone could get injured, someone could get killed or he could burn the bar down," Heil said.
Both of these statements would have preceded the incident at issue, in which a woman was sitting near the bar when an alcohol bottle Ward was pouring on the bar exploded, burning the woman on her face, neck, and chest. And indeed, the prosecution's case against Ward hinges on the fire officials' testimony because, in order to prove their case of criminal negligence, prosecutors must show that the Ward should have realized that his actions created a substantial and unreasonable risk of death or great bodily harm to another.
So, will the fire officials' testimony be ruled admissible? The answer to me would seem to be a clear, "Yes." According to Wis. Stat. Section 908.01(3), "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." And according to Wis. Stat. Section 908.02, "[h]earsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute."
Thus, if the fire officials' statements were being offered to prove the truth of the matter asserted -- that his bar's fire stunt could get someone injured or killed -- they would be hearsay and presumptively inadmissible. However, the prosecution does not need to offer these statements to prove their substance. Instead, the prosecutor can introduce those statements merely to prove that they put Ward on notice, such that he had a duty to investigate and potentially end his bar's dangerous practice. See, e.g., Sadowsky v. Anchor Packing Co., 1996 WL 191634 at *3 (Wis.App. 1996) ("Because the exhibit was offered to show notice to Garlock, it was not shown for the truth of the matter stated within, but rather for the effect of the information on Garlock. Offered for that purpose, the exhibit would not have been hearsay.").
What this means is that defense counsel will be able to ask for a limiting instruction with regard to the fire officials' statements under Wis. Stat. Section 901(06), but Ward almost certainly will not be able to preclude the fire officials' from testifying about their warnings.
October 17, 2008
To Tell The Truth: Idaho Case Reveals That Polygraph Test Results Are Admissible With A Stipulation
Most people know the general rule that polygraph test results are inadmissible (except in New Mexico), but fewer people know that there are several situations in which they can be admitted, as is illustrated by a current case in Idaho. Tyrah Brea Brown and her husband, Keith, are charged with first-degree murder and grand theft by possession of stolen property in connection with the killing of Leslie Carlton Breaw and the theft of a $56,000 escrow check belonging to him. The Browns have maintained that: (1) the check was given to her Keith as payment for paralegal services he provided to Breaw; and that (2) Breaw sexually assaulted Tyrah, with Breaw being shot in the struggle over a gun after Breaw opened fire on Keith during a confrontation over the alleged rape of his wife.
And, after Tyrah was charged, she wanted to prove that these 2 claims were true, so she submitted to a polygraph test conducted by polygrapher Ted Ponticelli. Pontecelli asked five questions, such as whether Tyrah was lying about Breaw sexually assaulting her, whether she shot Breaw, whether she was present when the shooting occurred, and whether she conspired to shoot Breaw or steal his money. Tyrah answered "No" to each question, and Ponticelli said in his report that the responses to the questions were "consistent with truthful answers." The results of Ponticelli's were later confirmed by a third-party polygrapher agreed upon by the prosecution and the defense.
What this means, according to an article on the case, is that these results will be admissible should Tyrah's case reach trial because "[t]he results of polygraph exams can be admissible in Idaho criminal courts if the state, the defense and the court agree to their admission." This is indeed a correct statement of the law because, as noted by the Supreme Court of Idaho in State v. Perry, 81 P.3d 1230, 1235 (Idaho 2003), "polygraph evidence may be admissible in instances where the parties stipulate to the admission of the evidence,...in probation revocation hearings,...and in other informal hearings where the rules of evidence do not apply,...at the discretion of the trial court or presiding official."
Thus, in Idaho, as in most states, if you are a criminal defense attorney and have every reason to believe that your client is telling the truth and would pass a polygraph test, you should attempt to get the prosecution to stipulate that the results of a polygraph test taken by your client will be admissible at trial. Of course, if you have the slightest doubt, it might be better to keep Pandora's Box closed
October 16, 2008
What A Difference A Few Weeks Make: 7th Circuit Makes Seemingly Erroneous Felony Impeachment Ruling
The recent opinion of the Seventh Circuit in United States v. Jackson, 2008 WL 4553061 (7th Cir. 2008), illustrates how important a few weeks can be in determining whether a felony conviction is admissible to impeach a testifying criminal defendant. I also think the court it contains an incorrect conclusion.
In Jackson, the defendants Essie Jackson and Joe Jackson were convicted of mail fraud and conspiring to commit mail fraud along with their co-defendant, Angela Blackwell Jackson. After they were convicted, the defendants appealed to the Seventh Circuit on a number of grounds, including Joe's argument that the trial court improperly permitted the prosecution to impeach him through evidence of his 1996 felony conviction for receiving stolen property.
While the Seventh Circuit didn't indicate the exact relevant dates, it noted that "[a]t the time of the trial, the conviction was just a few weeks shy of being ten years old." And why was this point so important? Well, under Federal Rule of Evidence 609(a)(1), "evidence that an accused has been convicted of...a [felony] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Conversely, according to Federal Rule of Evidence 609(b),
"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
In other words, if a testifying criminal defendant's felony conviction is less than ten years old, it is admissible for impeachment purposes if its probative value outweighs its prejudicial effect, but if it is more than ten years old, it is only admissible if its probative value substantially outweighs its prejudicial effect. In weighing probative value and prejudicial effect, courts typically consider 5 factors, which were actually first articulated by the Seventh Circuit in United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976):
(1) The impeachment value of the prior crime;
(2) The point in time of the conviction and the witness' subsequent history;
(3) The similarity between the past crime and the charged crime;
(4) The importance of the defendant's testimony; and
(5) The centrality of the credibility issue.
In Jackson, the Seventh Circuit noted that the trial court properly weighed these factors and did not abuse its discretion in deeming the prior conviction admissible for impeachment purposes. Specifically, the Seventh Circuit noted that the trial court reached the following conclusions:
-the prior conviction was almost ten years old, meaning that factor 2 weighed (strongly) against admission;
-the conviction for receipt of stolen property "did bear on Joe's truthfulness,...although the crime of receiving stolen property is not a crime of dishonesty per se," meaning that factor 1 weighed somewhat in favor of admission;
-"the nature of the charges rendered Joe's intent and state of mind central issues in the case; and his credibility as a witness would be a key factor in assessing his testimony as to those issues," meaning that factor 5 weighed strongly in favor of admission.
-"the evidence held some potential to prejudice" Joe, meaning that factor 3 weighed somewhat against admission.
Unfortunately, the court did not mention factor 4, but it seems clear to me that the trial court should have found that factor 4 weighed heavily against admission because if "Joe's intent and state of mind [were] central issues in the case," his testimony was extremely important, and the approval of his prior felony conviction for impeachment purposes could easily have dissuaded him from testifying.
So, tallying things up on my scorecard, 2 factors weighed strongly against admission, 1 factor weighed somewhat against admission, 1 factor weighed somewhat in favor of admission, and 1 factor weighed strongly in favor of admission. By my math, and even if you disagree with my math a bit, that would mean that probative value did not outweigh prejudicial effect, and the trial court did abuse its discretion. Of course, if the trial had started a few weeks later, we likely wouldn't even be having this discussion because I don't see any argument that the above factors compel a finding that probative value substantially outweighed prejudicial effect.
So, where did the trial court err, and why did the Seventh Circuit not mention factor 4? I think that the answer to the second question might answer the first question, with the analysis coming courtesy of Jeffrey Bellin in his forthcoming article, Circumventing Congress. In it, he argues that many courts have either read factor 4 out of the Federal Rule of Evidence 609(a)(1) analysis or erroneously transformed it from a factor that usually supports inadmissibility to a factor that supports admissibility. I strongly agree with Bellin's analysis in the article, and I hope that courts take heed and either scrap the 5 factor test or at least start applying it correctly.
October 15, 2008
Wrestling With The Truth: Appeals Court Of Massachusetts Affirms Convictions Of Men Who Assaulted Paul Pierce
I've noted the strange state of evidence law in Massachusetts in previous posts, and some of those eccentricities were on full display in the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Ragland, 2008 WL 4530626 (Mass.App.Ct. 2008), which affirmed the convictions of two men who attacked Boston Celtics' star Paul Pierce in a nightclub eight years ago. According to the evidence presented at trial:
"In the late evening of September 24, 2000, continuing to the early morning of September 25, a crowd of about 300 men and women gathered at the Buzz Club in Boston for dancing and drinking at an after hours party. Paul Pierce-the victim of the stabbing attack-and two of his friends, Derrick and Tony Battie, arrived at the club shortly before 1:00 a.m. At one point during the party Pierce was talking to two women, Delmy Suarez and Keisha Lewis. The defendant [William] Ragland, who is Lewis's cousin, was standing nearby. Words were exchanged between the defendant and Pierce. A fight erupted. Other individuals, estimated by witnesses to be eight in number-and one of whom was identified as the defendant [Trevor] Watson-joined Ragland in what escalated to a full scale attack on Pierce. The attack was vicious and sustained. Pierce described punches landing all over his body, a hit to his head with a bottle, and stinging, piercing thrusts to his abdomen and back, which left several deep stab wounds."
Ragland was thereafter convicted of assault and battery by means of a dangerous weapon, a knife, but no witness at trial was able to put a knife in his hand at the time of the fight. While several eyewitnesses testified at trial that Ragland and Watson attacked Pierce, Krystal Bostick, the only witness who had testified before the grand jury that Ragland attacked Pierce with a knife, recanted her testimony at trial. Nonetheless, during trial, the prosecutor was able to introduce Bostick's grand jury testimony, which obviously played a huge role in both Ragland's conviction and his appeal to the Appellate Court of Massachusetts.
Now, if Ragland's case were being heard under the Federal Rules of Evidence, his argument that Bostick's grand jury testimony should not have been admissible as substantive evidence would have been without any merit. That is because Federal Rule of Evidence 801(d)(1)(A), "[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." And clearly Bostick testified and was subject to cross-examination at Ragland's trial, and her prior statements concerning the knife were both given under oath at a (grand jury) hearing and inconsistent with her testimony at trial.
As I have noted before, however, Massachusetts
"does not have an officially adopted code of evidence. Instead, Massachusetts evidence law derives from a mishmash of common law, statutes, procedural rules, federal and state constitutions, the Federal Rules of Evidence, and the Massachusetts Proposed Rules of Evidence (which were never adopted). See Jeffrey S. Siegel, Note, Timing Isn't Everything, 79 B.U. L. Rev. 1241, 1244 (1999)."
And so while Massachusetts does have a Proposed Rule of Evidence 801(d)(1)(A) that is similar to its federal counterpart, it actually applies a unique test for determining the admissibility of inconsistent grand jury testimony. Under that test,
"The foundational requirements for the admissibility of the inconsistent grand jury testimony are that (1) the witness can be effectively cross-examined at trial regarding the accuracy of the statement; and (2) the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, i.e., the statement must be that of the witness and not of the interrogator....In addition, a further requirement is that when that testimony concerns an essential element of the crime, the Commonwealth must offer at least some corroborative evidence if there is to be sufficient evidence to warrant a conviction."
Even though this test is more rigorous than the federal test, however, the Appeals Court of Massachusetts found that it was satisfied because Bostick could be effectively cross-examined and the statements were not found to have been coerced. And while no other witness could place a knife in Ragland's had, Bostick's grand jury testimony was corroborated by other evidence at trial, such as "trial evidence concerning the witness Regina Henderson, who saw blood on the defendant Ragland's hand just after the stabbing and the defendant's efforts to wash the blood off."
October 14, 2008
I Said , "M-I-S-T-R-I-A-L," Mistrial, Take 2: Pennsylvania Judge Makes Seemingly Erroneous Hearsay Ruling In Murder Retrial
I am surprised by a Pennsylvania judge's hearsay ruling during a defendant's retrial. And that ruling will prevent the victim's daughter from being able to testify concerning what her mother stated on a voice mail message she left while the defendant was allegedly beating her. I previously wrote about the initial (mis)trial of the defendant for the mother's death in a post in March, where I laid out the relevant facts of the case:
"After Leslie Kerstetter's husband died of cancer, her alcohol and drug problems became severe enough to lead her to seek help through the Dauphin County Drug and Alcohol Services office. There, Kerstetter met Christopher W. Shenk, a recovering alcoholic who worked as a counselor for the county. The two started dating, and Leslie was subsequently found dead in the couple's home on March 28th after Shenk called for an ambulance. Shenk was subsequently charged with Leslie's murder.
This week, at Shenk's trial, the prosecution and defense counsel both agreed that on March 26th, the couple was arguing about Leslie's drinking, with Leslie repeatedly taking taxis to the liquor store after Shenk had dumped her bottles of liquor. Both sides also agreed that the argument got physical, but defense counsel claimed that while Shenk shoved Leslie during the argument, he did nothing to intentionally harm her. The prosecution countered that Shenk beat Leslie to death."
So, why was there a mistrial? Well, as I noted back in March,
"As part of its case, the prosecution called Leslie's adult daughter Ashley to testify concerning a voice mail message that her mother left on her phone on March 26th. Both the prosecution and defense counsel expected that Ashley was only going to testify that the voice mail made her believe that Shenk was beating her mother, not that she was going to relay her mother's statements on the voice mail. Instead, Ashley surprised both sides by testifying that on the voice mail, her mother said, 'Chris is beating me. I'm scared, I'm scared. Get off me, get off me.' The judge agreed with defense counsel's argument that this testimony was barred as hearsay and thus granted a mistrial. Deputy District Attorney Christopher Dreisbach said he plans to argue on appeal that the same testimony by Ashley should be allowed on re-trial because the mother's statements constituted a present sense impression."
I thought that the DA's plan to argue that the mother's statements constituted a present sense impression was smart because such an argument, as well as an argument that the statements constituted an excited utterance, was likely to be successful." Specifically, I pointed out that:
"First, as the DA noted (but did he do so at trial?), Leslie's statement was a present sense impression under Pennsylvania Rule of Evidence 803(1) because it was "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Here, Leslie's statement that Shenk was beating her, and her statement, "Get off, get off" clearly indicate that Leslie was relaying an event that was presently occurring, making the exception applicable.
Second, Leslie's statement was an excited utterance under Pennsylvania Rule of Evidence 803(2) because it was "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Leslie's statement related to a startling event -- being beaten -- and her statement that she was "scared" indicated that she was under the stress of that event when she sent the voice mail. See, e.g., Commonwealth v. Watson, 627 A.2d 785, 788 (Pa. Super. 1993)."
I was thus surprised when I was combing through news stories today and found that the trial judge in Shenk's retrial agreed with defense counsel that Ashley Kerstetter's proposed testimony about the contents of her mother's message was inadmissible hearsay. Unfortunately, the article on the retrial doesn't mention the judge's reasoning, but, barring any strange facts of which I am unaware, I don't see how this ruling could be proper.
October 13, 2008
A Warm Welcome To The Blogosphere To The Constitutional Law Prof Blog
Last Monday, my colleague Steve Schwinn launched the Constitutional Law Prof Blog along with Ruthann Robson of CUNY and Nareissa L. Smith of Florida Coastal. From the first week, I can already tell that it will be a very active blog with a lot of interesting posts. Congratulations and welcome to the blogosphere.
Lucky In Kentucky?: Murder Case Reveals Broadness And Narrowness Of Its Spousal Testimonial Privilege
An upcoming case in Kentucky reveals that Kentucky's spousal testimonial privilege is not in line with most state's spousal testimonial privileges in two regards. Deshon Marquese Ogburn is charged with murder, a second-degree persistent felony offender charge, and tampering with physical evidence in connection with the shooting death of Christopher Thomas Taylor. Taylor was the lover of Ogburn's wife, and Ogburn allegedly shot and killed him after discovering him in bed with his wife.
Now, one issue in the case is whether the wife's statements to police identifying her husband as the shooter when they first arrived at the scene of the crime will be admissible at Ogburn's trial. The Commonwealth Attorney contends that these statements are admissible as an exception to the rule against hearsay as excited utterances under Kentucky Rule of Evidence 803(2). Furthermore, in anticipation of the wife not testifying against Ogburn at trial, the Commonwealth Attorney has argued that the admission of her statements would not violate the Confrontation Clause because they were "made during the course of gathering information during an emergency." While I don't know enough of the facts of the case to be able to comment on this argument, it is obviously directed at satisfying the test set forth in Davis v. Washington, 547 U.S. 813 (2006), where the Supreme Court held that
"Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."
But why wouldn't the wife testify? Well, according to an article of the case, Ogburn plans to use Kentucky Rule of Evidence 504(a), its spousal testimonial privilege, to prevent her from testifying against him. Under Rule 504(a), "[t]he spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage." Thus, if the wife didn't want to testify against Ogburn, she could refuse, and if Ogburn wanted to prevent his wife from testifying against her, he could prevent her from testifying; only if both spouses agreed that the wife would be allowed to testify could she render testimony under Rule 504(a).
So, how is Rule 504(a) in the minority? Well, according to the recently released 2nd edition of Fisher's "Evidence," most jurisdictions permit a spouse to refuse to testify against her defendant-spouse while a few jurisdictions find that control of the privilege lies with the defendant-spouse, who can decide whether his spouse will render testimony. Finally, according to the casebook, "[a] third, less common form of the spousal testimonial privilege bars spousal testimony against criminal defendants unless both spouses consent." Kentucky's spousal testimonial privilege thus falls into this third, smallest, category.
While Rule 504(a) thus in one sense makes it more difficult to receive the testimony of a spouse against a defendant-spouse than it is in most jurisdictions, the second way that Kentucky's privilege deviates from the spousal testimonial privilege in the majority of jurisdictions makes it easier to receive such testimony. Like most spousal testimonial privileges, Rule 504(a) has a crime-fraud exception, an exception when the spouses are adverse parties, and an exception when the defendant-spouse is charged with wrongful conduct against his spouse or their children.
Rule 504(a), however, also has three exceptions not contained in most spousal testimonial privileges. These are exceptions that apply
"[i]n any proceeding in which one (1) spouse is charged with wrongful conduct against the person or property of...[a]n individual residing in the household of either; or...[a] third person if the wrongful conduct is committed in the course of wrongful conduct against [the other spousal or their children]. The court may refuse to allow the privilege in any other proceeding if the interests of a minor child of either spouse may be adversely affected."
Thus, if the Ogburn and his wife were estranged and the victim were living with his wife, the privilege wouldn't apply. And if Ogburn's behavior could be construed as wrongful conduct against not only the victim, but also his wife, the privilege wouldn't apply, even if Ogburn were not charged with any crime against his wife. Finally, the privilege wouldn't apply if Ogburn and his wife had a minor child who would be adversely affected if the wife didn't testify. Now, my brief research into Kentucky case law did not uncover any cases where a court applied this last exception, but it seems to me that it could be applied in any case where a minor child is involved. To wit, if the wife's testimony would likely lead to Ogburn being convicted, wouldn't application of the privilege adversely affect their minor child because it would make it likely that the child's father, a probable murderer, would be set free and be able to visit the child and perhaps even have custody over him? I would certainly be interested to see how a Kentucky court might apply this last exception.
October 12, 2008
Looking For Some (In)Consistency: Florida Case Perfectly Illustrates Differences Between Two Prior Inconsistent Statement Rules
Rarely do I find a case that perfectly illustrates the differences between the two prior inconsistent statement rules. The recent opinion of the District Court of Appeal of Florida in S.L. v. State, 2008 WL 4489253 (Fl.App. 4 Dist. 2008), however, fits the bill perfectly.
In S.L., "S.L. appeal[ed] her adjudication of delinquency for simple assault on the grounds that the trial court erred by allowing the state to prove its case exclusively through the mother's prior inconsistent statements." Specifically, on a September evening, S.L. and her mother engaged in a heated argument in their living room concerning S.L.'s purchase of a motor vehicle. Following the argument, S.L. stayed in the living room and her mother went to her bedroom, whereupon she heard a crash. The mother returned to the living room, where she discovered that S.L. was gone and the coffee table was broken. The mother called the police, and a deputy conducted an investigation, which resulted in S.L. being charged with criminal mischief and assault.
At S.L.'s ensuing trial, her mother testified that she called the police after she returned to the living room and discovered that S.L. was gone and the coffee table was broken. When the state inquired as to whether the argument got "a little bit more than just a little hostile between you and your daughter," the mother replied that it did not. The state then asked whether S.L. threatened her, and the mother responded, "No, she did not." Finally, the state asked the mother whether she told the officer that S.L. said, "You bitch, I'm going to kill you. I'm going to stab you," and the mother again responded, "No, I did not." The state then called the responding deputy as its next witness, and, over defense counsel's objection, the deputy testified that the mother told him that she called the police after S.L. became very aggressive and said, "Bitch, I'm going to kill you. I'm going to stab you."
At the conclusion of the state's evidence, S.L. moved for a judgment of dismissal on both charges, arguing that there was insufficient evidence of guilt and that the mother's prior inconsistent statements could not be used as substantive evidence. The trial court granted the motion as to the criminal mischief charge but denied the motion as to the simple assault charge and later found S.L. her guilty of simple assault based solely upon the deputy's testimony. This prompted S.L.'s appeal.
What the court didn't address was that the deputy's testimony was actually "hearsay within hearsay" under Florida Statute Section 90.805 because the deputy was testifying about what the mother told him about what her daughter told her. The court jumped to the issue of whether the mother's statement was hearsay, which actually is fine because the S.L.'s alleged statement was an admission of a party-opponent under Florida Statute Section 90.803(18)(a), meaning that the sole question the court needed to decide was whether the mother's statement was hearsay.
And the court found that it was hearsay because it did not qualify for admission as a prior inconsistent statement under Florida Statute Section 90.801(2)(a), which deems a statement nonhearsay "if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...[i]nconsistent 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." The problem for the state was that "the mother's statements to the deputy were not given under oath at a trial, hearing, or other proceeding or in a deposition." This was because the Florida Supreme Court has found (as it had to) that a statement given during a police investigation is not a statement given at an "other proceeding."
This is not to say that the deputy's testimony was inadmissible. It just means that because the mother's statement was hearsay, her statement could not be used to prove the truth of the matter asserted: that S.L. threatened her. Instead, under Florida Statute Section 90.614, it could only be used for impeachment, i.e., to call into question the credibility of the mother of a witness.
I always like to tell my students in contrasting these two prior inconsistent statement rules that the difference between the two is that when a prior consistent statement is admissible only for impeachment purposes and it is the only evidence of a defendant's guilt, the court must grant a motion for dismissal/directed verdict because there is no substantive evidence of the defendant's guilt. In other words, in S.L.' case, the only evidence of S.L.'s guilt was her mother's statement, but that statement was not admissible substantively to prove S.L.'s guilt; it was only admissible for impeachment purposes. Thus, the court correctly found that the trial court erred and reversed S.L.'s adjudication of delinquency on the simple assault charge.