EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, September 18, 2010

Lie To Me: Court Of Appeals Of Arkansas Finds Trial Court Erred In Prior Inconsistent Statement Ruling

Like its federal counterpart, Arkansas Rule of Evidence 613 sets forth the procedure for admitting prior inconsistent statements for impeachment purposes. It provides that

(a)  Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.  

(b)  Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic 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 explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2)

So, let's say that a witness makes a statement during trial and acknowledges that she made a prior inconsistent statement before trial. Can she thereafter be impeached via her prior inconsistent statement under Rule 613? According to the recent opinion of the Court of Appeals of Arkansas in White v. State, 2010 Ark. App. 588 (Ark.App. 2010), the answer is "no." I agree.

In White, Derrick White  was convicted  of first-degree battery after he allegedly shot Renekia White in the face.

The incident occurred at the home of Carey Walton, with whom Derrick White had resided until Walton ordered him out of the apartment after an argument the night before. On the day of the shooting, White had returned to Walton's residence to pick up some of his personal property. He again argued with Walton and punched her in the face. Renekia, a friend of Walton, was outside on the porch and was shot by White when he was leaving the apartment.

There was ample testimony, including that of White himself, that White pulled a handgun from his pocket, the gun discharged, and a bullet struck Renekia in the face. However, White claimed at trial that the shooting was accidental. None of the witnesses at trial testified that they heard White make any threats to use the weapon. Walton did, however, admit at trial that she made a statement to police shortly after the shooting in which she said that she heard White say, “I'm going to kill all of y'all.” When confronted by the statement, Walton attempted to explain the inconsistency by claiming that she was “hysterical” and that she was angry with White at the time.

At trial,

Walton initially claimed she did not remember what she told police that night, but after having her recollection refreshed by her written statement, she recalled the interview. She was directed to read a portion of the statement in which she told police that White had stated that “I'm going to kill all of y'all,” and then “raised the gun up.” Walton admitted that she remembered telling police that she saw the gun and fled because she thought that White was going to shoot her. Walton nonetheless denied hearing White make his threat, and claimed she was only repeating what Renekia had told her. She further claimed that her memory was impaired because she was “hysterical,” although she conceded that she “probably remembered the incident better back when it happened” than at the time of trial.

On cross-examination, Walton stated that she “stretched” the truth because she was mad at White. She unequivocally stated that she neither saw a gun nor heard White make the previously described threat. On re-direct, Walton confirmed that she lied to police when she stated that she saw a gun and heard White make his threat.


The State then called Little Rock Police Officer Rian Heck. When Officer Heck attempted to testify about Walton's statement, White's counsel made a hearsay objection and responded to the State's argument that it would be a prior inconsistent statement with the assertion that it was inadmissible because Walton had “already admitted that she's lied in her earlier statements to the police. This is an unsworn [statement], and she's got sworn testimony today .” The trial court admitted the testimony to “impeach Walton.” The State also called Little Rock Police Officer Rodney Blocker who, over White's objection, also testified about the statement that Walton made to the police. During closing arguments, the State used Walton's unsworn statement that, prior to the shooting, she claimed that White said “I'm going to kill all of y['all.]"  

After he was convicted, White appealed, claiming, inter alia, that the trial court improperly allowed for the admission of Walton's prior inconsistent statements under Arkansas Rule of Evidence 613 because Walton had already admitted that she lied to the police in her earlier statements. The Court of Appeals of Arkansas agreed, concluding that "it is well-settled law that Walton's prior statement was not admissible for impeachment purposes under Rule 613(b) of the Arkansas Rules of Evidence because she admitted that she made a prior, inconsistent statement." (The court nonetheless affirmed based upon a finding of harmless error).

I agree with the court's ruling. A prior inconsistent statement not made under oath is hearsay and only admitted to impeach the witness, i.e., to show that she is untrustworthy as a witness. When the witness admitted to making a prior inconsistent statement, the inconsistency is revealed, and the only purpose in admitting the prior inconsistent statement would be to show the jury the substance of the prior statement, which is improper because the statement is hearsay.



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