EvidenceProf Blog

The Prior Inconsistent Statement Project, Part 9 (Kansas)

Kansas is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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The Prior Inconsistent Statement Project, Part 8 (Colorado)

Colorado is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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The Prior Inconsistent Statement Project, Part 7 (Nevada)

Nevada is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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The Prior Inconsistent Statement Project, Part 6 (Kentucky)

Kentucky is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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The Prior Inconsistent Statement Project, Part 5 (Delaware)

Following up on yesterday's post, Delaware is a second jurisdiction where a recanted prior inconsistent statement alone might be sufficient to secure a conviction. But have the Delaware courts actually gone that far?

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The Prior Inconsistent Statement Project, Part 4 (Georgia)

Based on my posts from the last two days (here and here), I have identified eight possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction: (1) Colorado, (2) Delaware, (3) Georgia, (4) Kansas, (5) Kentucky, (6) Maryland, (7) Nevada, and  (8) South Carolina. In the next series of posts, I want to look at precedent from each of these jurisdictions to see exactly what they have (and have not) held on this issue.

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The Prior Inconsistent Statement Project, Part 3

In yesterday's post, I looked at the jurisdictions that allow for the substantive admission of prior inconsistent statements not given subject to the penalty of perjury and (seemingly) without any additional requirements. In that post, I concluded that several of those jurisdictions nonetheless hold that such a prior inconsistent statement, by itself, is insufficient to sustain a conviction.

In today's post, I will look at the hybrid jurisdictions, which allow for the substantive admission of prior inconsistent statements not given subject to the penalty of perjury, but with additional requirements. How many of these jurisdictions hold that such a prior inconsistent statement, by itself, is insufficient to sustain a conviction? 

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The Prior Inconsistent Statement Project, Part 2

In my post yesterday, I identified 14 states that clearly define as "nonhearsay" all prior inconsistent statements, including those not given subject to the penalty of perjury: (1) Alaska; (2) Arizona; (3)  California; (4) Colorado; (5) Delaware; (6) Georgia; (7) Kansas; (8) Kentucky; (9) Montana; (10) Nevada; (11) Rhode Island; (12) South Carolina; (13) Utah; and (14) Wisconsin. This position is inconsistent with Federal Rule of Evidence 801(d)(1)(A), which indicates 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....

In other words, under the Federal Rule, a prior inconsistent statement is only nonhearsay if it "was given under the penalty of perjury...." Moreover, the Advisory Committee's Note to Federal Rule of Evidence 801(d)(1)(A) states that

It would appear that some of the opposition to this Rule is based on a concern that a person could be convicted solely upon evidence admissible under this Rule. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate

So, under the Federal Rule, (1) a prior inconsistent statement not given under penalty of perjury is hearsay and cannot, by itself, be sufficient to prove guilt beyond a reasonable doubt; (2) a prior inconsistent statement given under the penalty of perjury is nonhearsay and could, by itself, be sufficient to prove guilt beyond a reasonable doubt, but "[f]actual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate."

Let's now turn to the 14 outlier states. Have those states spoken about whether a prior inconsistent statement not given under penalty of perjury can be sufficient to prove guilt beyond a reasonable doubt?

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The Prior Inconsistent Statement Project

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....

So, how many states have a similar rule that defines prior inconsistent statements as nonhearsay only when they are given under penalty of perjury? I'm going to start compiling them in this post.

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Justin Brown Submits a Reply to the State's Bail Arguments in the Adnan Syed Case

Today, Justin Brown filed a Reply in Support of Motion for Pretrial Release in the Adnan Syed case. This Reply answers the State's Response to Motion for Release, which itself answered Adnan's  Motion for Release Pending Appeal. The Reply clams that the State's Response was erroneous in three regards.

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Supreme Court Denies Cert in Bill Kuenzel Death Penalty Case, But is He Innocent?

When I did a presentation at the Media Law School at the University of South Carolina School of Law back in September, a reporter asked me to look into the case of Bill Kuenzel, a death row inmate in Sylacauga, Alabama. I was intrigued for a few reasons, including the fact that my uncle lives in Sylacauga. Beyond that, though, there was the fact that some high profile people were protesting Kuenzel's innocence, including Sam Waterston of "Law and Order" fame.

 

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Contrary to the State's Claim, Adnan Does Not Remain a Convicted Murderer & Kidnapper

This is one of the more troubling contentions in the State's Response to Motion for Release in the Adnan Syed case, and the State backs the contention up with no citations to any statutes or case law.* Perhaps this is because it is clear that Adnan's convictions have been vacated and that he is cloaked in the presumption of innocence.

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The State's Response to Motion for Release in the Adnan Syed Case is Fundamentally Flawed

Today, the State filed its Response to Motion for Release in the Adnan Syed case. As Justin Fenton notes, the Motion makes clear that Charlton Howard, a retired NCIS special agent, has taken over for Thiru Vignarajah. Unfortunately for the State, a one minute glance at the Response makes clear that it is fundamentally flawed. 

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Lividity Evidence/Withheld Police Report Contradict State's Timeline, Don't Lead to New Trial in Ohio Case

Here's an interesting lividity/prosecutorial misconduct case out of Ohio. In State v. Montgomery, 2016 WL 6393027 (Ohio App. 2016),

On the morning of March 8, 1986, the body of Cynthia Tincher was found in her car near the intersection of Angola and Wenz Roads in Toledo, Ohio. She died from a gunshot wound to the head. That same day, her roommate, Debra Ogle, failed to show up for work. Police searched for her after finding Tincher's body, and discovered that Tincher and Ogle's apartment door was unlocked. By the end of the day, they concluded that Ogle was missing. On March 9, 1986, her abandoned car was found with the key in the ignition. Her purse was in the car.

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