Inconsistent Inconsistency: Court Of Appeals Of Utah Opinion Reveals Differences Between Federal And Utah Rules Of Evidence On Prior Inconsistent Statements

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

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....

Utah Rule of Evidence 801(d)(1)(A) is broader. It provides that

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 or the witness denies having made the statement or has forgotten....

In other words, under the federal rule, only sworn prior inconsistent statement qualify as nonhearsay, but, under the Utah, rule, even unsworn prior inconsistent statements qualify as nonhearsay. And, in the Court of Appeals of Utah's recent opinion in State v. Zaelit, 2010 WL 2961469 (Utah App. 2010), this distinction made all the difference.

In Zaelit, Zachery Don Zaelit was convicted of theft by receiving stolen property.

Zaelit's conviction was based on his participation in the theft of a vehicle. Three companions accompanied Zaelit on the night of the theft, one of whom pleaded guilty to his own participation in the crime. At trial, two law enforcement officers provided testimony establishing that all three of Zaelit's companions had made statements implicating Zaelit in the theft. However, at trial, each of the companions either denied having made the statements or asserted that his or her original statement to law enforcement was not true. Nevertheless, the jury found Zaelit guilty.

After he was convicted, Zaelit appealed, claiming, inter alia, that :the out-of-court statements could not support the verdict because the permissible use of a prior inconsistent statement under rule 801(d)(1) of the Utah Rules of Evidence is limited to impeachment." The Court of Appeals of Utah disagreed, finding that

The State correctly notes that rule 801(d)(1), which provides that prior inconsistent statements of a witness who testifies at trial are not hearsay...“deviates from the federal rule in that it allows use of [unsworn] prior [inconsistent] statements as substantive evidence,"...Thus, the out-of-court statements of the three witnesses could properly be used as substantive support for the verdict.

-CM