Federal Evidence Review

The Seventh Circuit agrees with the First Circuit that a police officer’s prior inconsistent statements in his police report qualified as a party admission in his criminal trial for violating a victim’s constitutional rights; the trial court could instruct the jury that the statement could be considered as substantive evidence under FRE 801(d)(1)(A) and not simply for impeachment under FRE 801(d)(2)(A), in United States v. DiSantis, 565 F.3d 354 (7th Cir. May 4, 2009) (No. 07-3692)

The rules of evidence draw a distinction between evidence that can be used to impeach a witness on a non-collateral matter by proof that the witness made a statement out of court that was inconsistent with the witness’s in-court testimony under FRE 801(d)(1)(A). A statement admitted under that rule is different from a situation in which the court allows in an admission of a party-opponent under FRE 801(d)(2). The Seventh Circuit recently explored the contrast of the two rules and their implication for use of the evidence for substantive purposes or merely for impeachment in a case.

In the case, defendant DiSantis was a police officer who, “acting on [a] hunch” that victim Pine and the passengers in her car were “either driving a stolen vehicle or heading to buy drugs” pulled the victim’s car over. The victim claimed that the defendant “pulled her out of the car by the hair and struck her multiple times in the head. DiSantis denied pulling Pine’s hair or striking her, testifying that he only raised his voice.” DiSantis, 565 F.3d at 357.

While this was happening, victims Montes brothers “pulled into a parking lot across from the traffic stop, and ... attempted to record the incident with [a] video camera.” Seeing this, DiSanti and a colleague stopped Montes and “wrestled the video camera away.... The Montes brothers ... testified that DiSantis began screaming at them and demanding the camera’s ‘memory stick.’ After Hector [Montes] told DiSantis that he did know anything about the memory stick, DiSantis struck Hector with the camera across the face and again on the head. DiSantis then threw the camera on the ground and stepped on it. DiSantis also conducted a pat-down search of both men and squeezed their genitals.” The defendant arrested Montes and filed a police report on the incident. DiSantis, 565 F.3d at 358.

As a result of this incident, the federal government filed criminal charges that the defendant “willfully” deprived Pine and Montes of their constitutional rights to be free from unreasonable seizure. The case proceeded to a six-day jury trial, which included testimony by DiSantis about the Pine and Montes traffic stops. “The government capably impeached DiSantis’s testimony using the police report that he filed on the Montes incident. For example, after DiSantis denied grabbing Richard [Montes]’s video camera, the government read a portion of DiSantis’s report stating that ‘Hector Montes, was clutching the ... video camera’ and that ‘DiSantis removed the camera from the suspect by force.’ The government also noted that DiSantis’s report catalogued the camera as ‘damaged,’ suggesting that DiSantis was lying when he testified that he had not deliberately stepped on the camera.” DiSantis, 565 F.3d at 358. The district court instructed the jury regarding the receipt of this evidence as follows:

“A statement made by the defendant before trial that is inconsistent with the defendant’s testimony here in court may be used by you as evidence of the truth of the matters contained in it, and also in deciding the truthfulness and accuracy of the defendant’s testimony at trial.”

DiSantis, 565 F.3d at 359. This was an instruction that the government had requested citing the inconsistencies between DiSantis’s testimony and his police report. After deliberating, the jury rendered a verdict that the defendant was guilty of violating Montes’ constitutional rights. The defendant appealed, contending that the jury should not have been instructed that it could use his prior inconsistent statements as substantive evidence.

The Seventh Circuit found no error in the instruction that the jury could consider the defendant’s prior inconsistent statement as substantive evidence, rather than simply as evidence of credibility. In particular, the circuit dismissed the defense objection that the instruction “set different standards for the substantive use of [defendant’s] and other witnesses’ prior inconsistent statements.” That is, that the jury was told with regard to allegedly prior inconsistent statements by other witnesses, that they were specifically limited the use of the evidence in making credibility determinations. Only with the defendant did the court inform the jury that they could use the prior inconsistent statement for substantive purposes.

“DiSantis is incorrect to suggest that this party-based distinction,” noted the circuit as it dismissed the idea that it was “in any way legally erroneous. The Rules of Evidence plainly distinguish between the prior inconsistent statements of non-party witnesses and of party-opponents like DiSantis.” DiSantis, 565 F.3d at 360. In this light, the instruction on the substantive use of defendant’s “prior inconsistent statements was unquestionably a correct statement of the law.”

The circuit distinguished use of a party’s and a non-party’s prior inconsistent statements under the FRE:

• A non-party’s prior inconsistent statement is “admissible as non-hearsay, substantive evidence only if ‘subject to cross-examination’ and ‘given under oath.’“ DiSantis, 565 F.3d at 360 (citing FRE 801(d)(1)(A); United States v. Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988) (“If a prior inconsistent statement meets the [oath and cross-examination] requirements of Rule 801(d)(1)(A) it may be admitted as substantive evidence.... A prior inconsistent statement that does not meet one of the criteria of Rule 801(d)(1)(A), however, may be used only for the purpose of impeaching the witness.”))
• A party’s prior inconsistent statement is “admissible as substantive evidence even if not given under oath.” DiSantis, 565 F.3d at 360 (citing FRE 801(d)(2)(A); United States v. Spiller, 261 F.3d 683, 690 (7th Cir. 2001) (“A party’s own statements offered against him are considered admissions by a party-opponent, and, as such, are not hearsay and are admissible under Fed. R. Evid. 801(d)(2)(A).”))

The circuit also rejected the defense argument that the defendant’s police report did not qualify as an admission by a party-opponent, so that it could be used as a basis for instructing the jury on the substantive use of the defendant’s prior inconsistent statements. The circuit noted in particular that under FRE 801(d)(2)(A), “written statements may be admitted as non-hearsay against the party who made the statement.” DiSantis, 565 F.3d at 360 (quoting Thanongsinh v. Bd. of Educ., 462 F.3d 762, 779 (7th Cir. 2006); see also United States v. Spiller, 261 F.3d 683, 690 (7th Cir. 2001) (characterizing a defendant’s handwritten ledgers indicating the quantities of crack cocaine that he sold as admissions by a party-opponent); United States v. Harvey, 117 F.3d 1044, 1049-50 (7th Cir. 1997) (concluding that a defendant’s handwritten letters and diaries documenting his marijuana production were admissions by a party-opponent)).

In support of this finding, the circuit cited a First Circuit case of United States v. Rios Ruiz, 579 F.2d 670, 675-77 (1st Cir. 1978). That case, as DiSanti’s, “ar[ose] out of a police officer’s use of excessive force” and the circuit there “concluded that the officer’s arrest report fell within the hearsay exemption of Rule 801(d)(2)(A).” Agreeing with the First Circuit, the Seventh Circuit concluded that the defendant’s “prior inconsistent statements in his police report qualified as party admissions, and the district court committed no error in instructing the jury that they could consider those statements for their truth.” DiSantis, 565 F.3d at 360.