Nothing Constant But Inconsistency: Montana Case Reveals State's Prior Inconsistent Statement Rule

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

A statement that meets the following conditions is not hearsay:  

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:  

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

A statement is not hearsay if:      

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony....

So, what is the difference between these two Rules? Let's take a look at State v. Pound,  2014 WL 2515598 (Mont. 2014).

In Pound, Jimmy Pound was charged with sexual assault. At trial,

During the State's direct examination of the victim she testified that Pound ("Jimmy") had touched her privates with his finger, but that she did not remember how it felt, and that her pajamas were ripped. She testified that she was scared to tell the truth and could not remember the truth. She testified that Pound had touched her in a brick house and denied that she had ever watched movies with him. She testified that her grandmother was the only person she had ever talked to about Pound and that she had never told anyone else the truth about him. On cross-examination, the defense asked the victim if she remembered talking to [forensic examiner Paula] Samms and the victim said "no" but remembered talking several times with "Tara." She denied ever having gone into a room like the one in which the Samms interview took place. She was asked whether she made a number of specific statements that were in the Samms interview. She both admitted and denied making most of them. She acknowledged telling Samms that Pound had touched her "pee pee."

Thereafter, the prosecution introduced portions of Samms' interview with the victim that were inconsistent with the victim's testimony at trial.

After he was convicted, Pound appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to admit these portions of the transcript. The Supreme Court of Montana disagreed, finding that "[b]ecause the victim gave different and more consistent responses to many of the same questions in the interview with Samms, those responses were prior inconsistent statements as provided for in M.R. Evid. 801(d)(1)(A)."

While this testimony was admissible under Montana Rule of Evidence 801(d)(1)(A), it would not have been admissible under Federal Rule of Evidence 801(d)(1)(A). That's because the former Rule only requires the witness to testify at trial while the latter Rule requires that the prior statement be given under the penalty of perjury.

-CM