Friday, January 31, 2014
Seeking Consistency: Court of Criminal Appeals Finds Extrinsic Evidence Not Admissible When Witness Admits Inconsistency
Pursuant to Tennessee Rule of Evidence 613(b),
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 803(1.2).
So, let's say that a witness gives testimony at trial. Then, during cross-examination, opposing counsel asks the witness about examples of inconsistencies between her trial testimony and a statement that she gave to police. If the witness acknowledges making inconsistent statements to police, can opposing counsel introduce extrinsic evidence of the police statement? According to the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Holman, 2014 WL 295610 (Tenn.Crim.App. 2014), the answer is "no."
In Holman, Gary S. Holman was charged with aggravated burglary, employing a firearm in the commission of a dangerous felony, false imprisonment, first degree felony murder, and especially aggravated robbery. One of the victims of some of these crimes was Vickie Graves, and, while at the hospital in the aftermath of these crimes,
Ms. Graves was interviewed by the police and related the events of the evening. During the recorded interview, with regard to the man later identified as the defendant, Ms. Graves stated that he “did not seem to want to hurt [her.]” She also made the statement that, while she was sure that the defendant had pointed something with a barrel at her head, she “couldn't swear [the defendant] had a gun in his hand,” but stated that it felt like it. She also noted that, while the two did struggle over the gun, the defendant did not hit or strike her at any time, rather he only pushed and shoved her. She also related that the defendant bit her arm, but noted he did not break the skin. Ms. Graves also made the statement that the defendant was either “not very strong or he was real, real gentle with me.” Ms. Graves also noted that she had never seen the two men who invaded her home before that evening.
At trial, however, Graves testified, inter alia, that Holman tackled her and threw "her back." On cross-examination, defense counsel thereafter asked her questions about he prior police statement, in which she characterized Holma's behavior as much less aggressive. Upon interrogation, Graves acknowledged making several inconsistent statements in her police statement.
Thereafter, defense counsel sought to introduce Graves' police statement as an exhibit. The trial court, however, deemed the statement inadmissible, finding that extrinsic evidence of a prior inconsistent statement is only admissible if a witness denies making the prior statement.
After he was convicted, Holman appealed, claiming, inter alia, that the statement should have been admitted. According to the Court of Criminal Appeals of Tennessee,
The defendant correctly notes that Rule 613(b) of the Tennessee Rules of Evidence allows for admission of extrinsic evidence of a prior inconsistent statement made by a witness if the witness is given the opportunity to explain or deny the inconsistent statement and the opposing party has an opportunity to question the witness regarding the inconsistent statement. The extrinsic evidence may be either written or recorded evidence of a prior statement....However, if the witness admits to making the prior statement, then extrinsic evidence of the prior inconsistent statement is inadmissible because it would be cumulative and consistent with the witness' testimony at trial.
Holman acknowledged this last limitation but claimed that the prior statement should still be admitted because Graves' "demeanor and attitude were particularly different when comparing her in court testimony to the statement she gave police." The court again rejected this argument, concluding that
The law in this area is clear that if the witness admits to making the prior statement, extrinsic evidence of the prior inconsistent statement is inadmissible because it would be cumulative and consistent with the witness' testimony at trial....That did not occur in this case. Ms. Graves admitted that she did in fact make the statements. The defendant is attempting to extend the law to allow evidence that she may or may not have used a different demeanor or tone on the two separate occasions.