EvidenceProf Blog

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

Sunday, August 5, 2012

No Answer: 2nd Circuit Finds An Answer At A Prior Trial Is A Prior Inconsistent Statement If Witness Refuses To Answer

Federal Rule of Evidence 801(d)(1)(A) provides that

A statement that meets the following conditions is not hearsay:...

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....

So, let's say that a witness answers a question during a state court trial and then refuses to answer the same question at a subsequent federal court trial? Does his answer at the state court trial constitute a prior inconsistent statement under Rule 801(d)(1)(A)? According to the recent opinion of the Second Circuit in United States v. Truman, 2012 WL 3023804 (2nd Cir. 2012), the answer is "yes."

In Truman, in November 2005 Jeffrey E. Truman, Sr., along with two partners in JMM Properties, LLC, purchased a vacant commercial building and the property on which it was located on Liberty Street in Oneida, New York for $175,000.

In January 2006 a small fire started accidentally at the Liberty Street property, causing only minor damage. The day after the fire, the real estate broker reminded Truman that the building was insured for several million dollars, and Truman told an employee responsible for cleaning the building, "[I]f it ever caught on fire again, just get out. It is worth more to me down than it is standing." Similarly, when Truman's father-in-law said that leasing the building would be profitable, Truman responded that "it would probably make more money if it burnt."

By the fall of 2006, JMM was financially strapped. Unable to find tenants or buyers for the property, it faced mounting unpaid financial obligations totaling several thousand dollars, including a significant interest payment on one mortgage loan, due November 17, 2006—the same day that the insurance policy was set to expire—and a payment of $14,500 in broker fees associated with a second mortgage that Truman had personally guaranteed. After Truman negotiated three extensions of the deadline for the $14,500 payment, JMM's mortgage broker told Truman the week before the fire that the second loan would be canceled if the payment was not made by November 14. Truman himself experienced significant financial difficulties relating to JMM and unrelated businesses, including a restaurant and a skating rink. He lost $97,000 in other real estate investments in 2005 and in September 2006 was forced to withdraw $135,000 from his retirement savings to pay credit card debts and JMM's bills. By early November 2006, Truman had less than $5,000 in his personal bank accounts. Nevertheless, the premium payments for the insurance policy covering the Liberty Street building remained up to date through November 17, 2006.

The building burned down the evening of November 12, 2006. Investigators soon determined that the fire was the result of arson. The following month, police arrested twenty-year-old Truman, Jr., who confessed that he had burned the building at his father's direction. Apparently unaware of his son's confession, Truman and his business partners filed an insurance claim for the building in February 2007. Truman was arrested by state law enforcement officials in March 2007, and both he and Truman, Jr. were indicted by a grand jury in Madison County, New York. Truman, Jr. pleaded guilty to third-degree arson pursuant to a cooperation agreement with the district attorney of Madison County and served a two-year term of imprisonment.


Truman was first tried in state court on arson, fraud, and related charges, with Truman, Jr. as the main witness against him. The charges were dismissed, however, when the State prosecutors proved unable to corroborate Truman, Jr.'s testimony, as required under New York law when an accomplice testifies for the prosecution.

Subsequently, the United States began its own investigation, with Truman, Jr. eventually entering into a cooperation agreement with the United States Attorney's Office. Pursuant to that agreement, Truman, Jr. testified before a federal grand jury, and soon thereafter Truman was indicted and charged.

At trial, Truman, Jr. refused to answer several questions posed by the prosecution that he answered at the state court trial, prompting the prosecutor to introduce his prior responses as prior inconsistent statements under Federal Rule of Evidence 801(d)(1)(A).

After he was convicted, Truman moved for a new trial, and the district court granted the motion, finding that Truman, Jr.'s prior answers were inadmissible hearsay. The Second Circuit, however, disagreed, finding that to the extent that its prior opinions

did not specifically address this issue,...we now join all of our sister courts that have addressed the question in holding that where, as here, a witness who testifies under oath and is subject to cross-examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under Rule 801(d)(1)(A). 



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