EvidenceProf Blog

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

Wednesday, January 29, 2014

I'd Rather Not Say: Refusals to Answer & Prior Inconsistent Statements

Arizona 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

So, let's say that an alleged victim gives a detailed statement to the police on the night of an alleged crime. Then, at trial, the victim testifies in response to certain questions that she "would rather not say..." Does such testimony render her prior statement "inconsistent," permitting its admission under Rule 801(d)(1)(A)? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Joe, 2014 WL 212591 (Ariz.App. Div. 1 2014), the answer is "yes."

In Joe, Stanson Joe was charged with kidnapping, aggravated assault and nine counts of sexual assault. After he was convicted, he appealed, claiming that the trial court erred by admitting statements that the alleged victim made to the police on the night of the crimes charged.

At trial, when asked during direct examination by the State about the assault, the victim responded on several occasions: “I don't remember.” In response, the State asked: “You don't remember or you would rather not say?” Each time the victim answered: “I would rather not say.” The victim added that it was difficult to testify, stating she “tried forgetting” the assault but it was “hard to get over it.”

According to the trial court, such testimony rendered the alleged victim's prior statement to police admissible under Rule 801(d)(1)(A). The Court of Appeals of Arizona later agreed, concluding that

As applied to these facts, the victim repeatedly sought to avoid answering specific questions regarding the assault, stating (after follow up) that she “would rather not say.” Those responses differed from, and were inconsistent with, her detailed description provided to Detective Sutton on the night of the assault. In light of her testimony and prior statements to Detective Sutton, the superior court did not abuse its discretion in allowing the State to impeach the victim with her prior inconsistent statements to Detective Sutton pursuant to Arizona Rule of Evidence 801(d)(1)(A).



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