Silence As A FRE 801(d)(1)(A) Inconsistent Statement

In a defendant's arson trial, when a cooperating witness who was also the defendant's son declined to answer the prosecutor's questions about whether the defendant had asked him (the son) to start the charged fire, the son's prior testimony from the state court trial of the son for arson was admissible as a FRE 801(d)(1)(A) prior inconsistent statement, to his current refusal to affirm the substance of that prior testimony, in United States v. Truman, __ F.3d __ (2d Cir. July 25, 2012) (No. 11-784-cr)

The FRE provides for the admission of prior inconsistent statements even though they are hearsay in nature. The court can admit this evidence for its substantive value, in which case the statement can merely be introduced. On the other hand, it can be admitted for impeachment purposes, when the trial court should provide a limiting instruction restricting the use of the evidence to matters of the witness's impeachment rather determining the merits of the case. The Second Circuit recently reviewed the matter of admitting prior inconsistent statements in the impeachment context.

The significance of the case for purposes of the prior inconsistent statement case law is that the Second Circuit took the opportunity in Truman to "join all of our sister courts" that have resolved that " where, as here, a witness who testifies under oath and is subject to cross-examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under Rule 801(d)(1)(A)" Truman, __ F.3d at __.

In the case, the defendant Truman was tried for the arson of buildings he had owned, apparently to recover the insurance value of the property. Ironically, he stood in the position where the land would be worth more without the building he apparently had torched, that with it standing unharmed. The government's theory in the case was that the defendant arranged the charged arson by enlisting his son, Truman Jr., to set the fire. The defendant provided rather detailed directions to the son, as well as materials that could be used for setting the blaze. He also helped the son dispose of some of the evidence of their involvement in the charged crime.

The son had been convicted in state court for the arson of the building and had testified at the state trial about his and his father's relation to the arson fire. At the defendant's federal trial, the son testified as a cooperating witness about the arson. "When the Government asked Truman, Jr. why he set the fire and about the content of his conversations with his father [on when, how and why] to set it, he refused to answer." Even when he was told that the refusal to answer would "constitute a breach of the cooperation agreement with the Government. He still refused, saying, 'I can't,' and, 'I can't do this.'" The defendant objected to this line of questioning the cooperating witness. "In response," noted the circuit, over the defense objection, the trial court allowed the "Government read portions of Truman, Jr.'s testimony from Truman [Jr.]'s state court trial, in which Truman, Jr. confirmed that his father had asked him to start the fire." Truman, __ F.3d at __.

Although the defendant was convicted for the arson, the district court "granted defendant's motion for judgment of acquittal and conditionally granted a new trial." While there were multiple grounds the court articulated for acquittal and retrial, one specifically noted by the circuit in the government's appeal included that "a new trial was warranted because Truman, Jr.'s state court testimony was inadmissible hearsay." Truman, __ F.3d at __ (quoting Truman, 762 F.Supp.2d at 456.)

The circuit differed in its assessment of the witness's statements or lack of statements. The test employed by the circuit was a four-part test suggested to the circuit by FRE 801(d)(1)(A), the inconsistent statement hearsay exception. This test consisted of examining whether a "statement is nonhearsay" because “[t]he declarant:
[(1)] testifies” at trial,
“[(2)] is subject to cross-examination about a prior statement, and
[(3)] the statement is inconsistent with the declarant's testimony and
[(4)] was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”

Truman, __ F.3d at __ (quoting FRE 801(d)(1)(A) (section breaks omitted)).

The circuit had little difficulty finding these factors:

[Defendant's Son]Truman, Jr. answered every question posed to him in cross-examination about his prior state court testimony, and therefore he was “subject to cross-examination” within the meaning of Rule 801(d)(1)(A). His prior testimony was also “inconsistent” with his refusal to answer questions about that testimony on direct examination at trial. In United States v. Marchand, we held that “if a witness has testified to ... facts before a grand jury and forgets or denies them at trial, his grand jury testimony ... falls squarely within Rule 801(d)(1)(A).” 564 F.2d 983, 999 (2d Cir.1977). ... Our holding also coheres with a principal purpose of Rule 801(d)(1)(A), which is to protect against the “turncoat witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.”
Truman, __ F.3d at __ (citing FRE 801(d)(1)(A), Notes of Advisory Committee, 1972 Proposed Rules)).

In reaching this decision, the Second Circuit noted that it aligned its case law with that of other circuits that had faced the issue. Specifically, the circuit cited its previous case of United States v. Marchand, 564 F.2d 983, 999 (2d Cir. 1977). In that case in particular the Second Circuit also applied the inconsistent statement exception to justify admission of the statement when "a trial witness's refusal to answer questions posed and answered [occurred] in prior sworn state court testimony. To the extent Marchand did not specifically address this issue, however,

we now join all of our sister courts that have addressed the question in holding that where, as here, a witness who testifies under oath and is subject to cross-examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under Rule 801(d)(1)(A).
Truman, __ F.3d at __ . The Second Circuit specifically cited three cases of other circuits that explained this result:
  • United States v. Iglesias, 535 F.3d 150, 159 (3d Cir. 2008) (refusal to testify with more than “one word admissions, evasive and rambling responses, and equivocations” inconsistent with “clear and straightforward” prior testimony))
  • United States v. Matlock,, 109 F.3d 1313, 1319 (8th Cir. 1997) (testimony that “attempted to minimize” defendant's role and that “was far less incriminating and therefore far less helpful to the government” inconsistent with prior testimony)
  • United States v. Williams, 737 F.2d 594, 608 (7th Cir.1984) (“limited, vague, and not inculpatory” testimony inconsistent with prior testimony)

Truman, __ F.3d at __

Federal Rules of Evidence