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

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Friday, March 2, 2012

An Inconsistent Truth: Arizona Case Reveals Different Prior Inconsistent Statement Rule

Federal Rule of Evidence 801(d)(1)(A) provides that a statement is not hearsay if

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

Meanwhile, Arizona Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if....The 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....

What this means is that a prior inconsistent statement not given under the penalty of perjury is hearsay under the Federal Rules of Evidence but is not hearsay under the Arizona Rules of Evidence as is made clear by the recent opinion of the Court of Appeals of Arizona, Division 2, Department B, in State v. Bacon, 2012 WL 642867 (Ariz.App. Div. 2 (2012).

In Bacon, Leonard Bacon, Jr. was convicted of first-degree murder, possession of a deadly weapon by a prohibited possessor, and theft of a means of transportation. After he was convicted, Bacon appealed, claiming, inter alia, that the trial court erred by allowing for the admission of a prior inconsistent statement made by his sister.

Specifically, Bacon allegedly killed his mother, and his sister testified at trial that her relationship with her mother was "real close." The prosecution thereafter called a witness who testified that the sister told her that she wanted her mother dead.

Now, if Bacon's case were being resolved under the Federal Rules of Evidence, this statement would have been hearsay that was admissible to impeach the sister but not to prove the truth of the matter asserted: that the sister wanted her mother dead. But because Bacon's case was being resolved under the Arizona Rules of Evidence, the sister's statement was nonhearsay even though it was not given under oath, meaning that it was admissible to prove the truth of the matter asserted. Thus, the appellate court affirmed Bacon's conviction.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/03/federal-rule-of-evidence-801d1aprovides-that-a-statement-is-not-hearsay-if-the-declarant-testifies-and-is-subject-to.html

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